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A00204 Summary:

BILL NOA00204
 
SAME ASSAME AS S04685
 
SPONSORGottfried
 
COSPNSRAbinanti
 
MLTSPNSR
 
Amd 2994-d & 2994-g, Pub Health L; amd 1750-b, SCPA
 
Relates to restoring medical futility as a basis for DNR.
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A00204 Actions:

BILL NOA00204
 
01/06/2021referred to health
01/26/2021reported referred to codes
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A00204 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A204
 
SPONSOR: Gottfried
  TITLE OF BILL: An act to amend the public health law and the surrogate's court proce- dure act, in relation to restoring medical futility as a basis for both surrogate consent to a do not resuscitate order and for a do not resus- citate order for a patient without a surrogate   PURPOSE OR GENERAL IDEA OF BILL: This is one of a series of seven bills, informally referred to as the "Surrogate Decision-Making Improvement Acts." The bills make technical/minor, clarifying and coordinating amendments and other improvements to the Family Health Care Decisions Act (FHCDA) (Ch. 8, Laws or 2010) and other laws that govern health care decisions, includ- ing life-sustaining treatment decisions, for patients who lack deci- sion-making capacity. This bill restores the medical futility standard from former PHL Art. 29-B as a basis for surrogate consent to a Do Not Resuscitate (DNR) order and for a DNR order for a patient without a surrogate.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 sets forth the legislative intent. Section 2 amends PHL § 2994-d(5)(a) to restore one of the bases in the former DNR Law (PHL Art. 29-B) for when a surrogate may consent to DNR order. The former DNR Law provided that a DNR order may be entered when there is a determination by the attending physician and a concurring physician that resuscitation would be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs (hereinafter referred to as "medical futility"). Chapter 430 of 2017 added that such determi- nations may be made by attending nurse practitioners, and this bill conforms to that law. Section 3 amends PHL § 2994-d.5(b) to restore medical futility as a basis for a DNR order for a patient who does not have a surrogate. Section 4 amends SCPA § 1750-b.4(b): to restore medical futility as a basis for surrogate consent to a DNR order for a developmentally disa- bled person. Section 5 is the effective date: ninetieth day after it shall become a law   JUSTIFICATION: For over twenty years under the former DNR law (PHL Art 29-B), a surro- gate could consent to a DNR order if the patient met any one of four clinical criteria, one of which was a finding by two physicians that resuscitation "will be unsuccessful in restoring cardiac and respiratory function or that the patient will experience repeated arrest in a short time period before death occurs." The former DNR law also allowed a DNR order to be entered for a patient who did not have a surrogate on that basis. That law applied to all patients, including developmentally disa- bled patients. The FHCDA, in contrast, establishes standards for the withdrawal or withholding of a broad range of life-sustaining treatment. Accordingly it does not have a standard specifically relating to medically futile resuscitation. Chapter 8 of the laws of 2010 made the FHCDA apply to DNR orders for most patient in hospitals and nursing homes. Similarly SCPA § 1750-b does not have a standard specifically relating to medically futile resuscitation. Chapter 8 of the laws of 2010 made SCPA § 1750-b apply to DNR orders for developmentally disabled patients. This loss of the long-established "medical futility" grounds for a DNR was inadvertent. Experience has shown that the broader FHCDA and SCPA § 1750-b standards, especially the standards for patients who do not have surrogates, can be difficult to apply to decisions about resuscitation. This bill would restore the former DNR law's medical futility standard as an alternative basis for writing a DNR order under the FHCDA and under SCPA § 1750-b, with the addition of nurse practitioners to conform with chapter 430 of 2017 which added them as eligible practitioners to execute DNRs.   PRIOR LEGISLATIVE HISTORY: 2013:A.7371 reported referred to codes 2014:A.9648 reported referred to rules 2015:A.6966 reported referred to codes 2016:A.6966 referred to health 2017:A.3991 reported to third reading 2018: A3991 reported to third reading 2019: A1203 reported to third reading / Senate Health 2020: A1203 ordered to third reading / Senate Health   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall become a law.
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A00204 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           204
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by M. of A. GOTTFRIED, ABINANTI -- read once and referred to
          the Committee on Health
 
        AN ACT to amend the public health law and the surrogate's  court  proce-
          dure  act,  in  relation  to restoring medical futility as a basis for
          both surrogate consent to a do not resuscitate order and for a do  not
          resuscitate order for a patient without a surrogate
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Legislative findings. Under New York's former do not resus-
     2  citate (hereinafter "DNR") law, article 29-B of the public health law, a
     3  surrogate could consent to a DNR order if the patient  met  any  one  of
     4  four  clinical  criteria,  one  of which was a finding by two physicians
     5  that resuscitation was "medically futile," which  was  defined  to  mean
     6  that  resuscitation  "will  be  unsuccessful  in  restoring  cardiac and
     7  respiratory function or that the patient will experience repeated arrest
     8  in a short time period before death occurs." The  former  DNR  law  also
     9  allowed  a  DNR  order  to  be  entered for a patient who did not have a
    10  surrogate on that basis. That law applied  to  all  patients,  including
    11  developmentally disabled patients.
    12    In  2010,  the former DNR law was superseded by the Family Health Care
    13  Decisions Act (hereinafter "FHCDA") which established standards for  the
    14  withdrawal  or  withholding  of  a broad range of life-sustaining treat-
    15  ments. Accordingly, the FHCDA  did  not  have  a  standard  specifically
    16  relating to medically futile resuscitation. Similarly, Surrogate's Court
    17  Procedure  Act  (hereinafter  "SPCA")  §1750-b  does not have a standard
    18  specifically relating to medically  futile  resuscitation  for  develop-
    19  mentally disabled patients.
    20    The  legislature  finds that the broader FHCDA and SPCA §1750-b stand-
    21  ards are difficult to apply to situations in which  resuscitation  would
    22  be  medically  futile.  Accordingly,  this  bill restores the former DNR
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00126-01-1

        A. 204                              2
 
     1  law's medical futility standard as an alternative basis  for  writing  a
     2  DNR order under the FHCDA and under SCPA §1750-b.
     3    §  2.  Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
     4  section 2994-d of the public health law, as amended by  chapter  708  of
     5  the  laws  of 2019, are amended and a new subparagraph (iii) is added to
     6  read as follows:
     7    (i) Treatment would be an extraordinary burden to the patient  and  an
     8  attending  practitioner  determines, with the independent concurrence of
     9  another physician, nurse practitioner or physician assistant, that, to a
    10  reasonable degree of medical  certainty  and  in  accord  with  accepted
    11  medical standards, (A) the patient has an illness or injury which can be
    12  expected  to  cause death within six months, whether or not treatment is
    13  provided; or (B) the patient is permanently unconscious; [or]
    14    (ii) The provision of treatment would involve such pain, suffering  or
    15  other  burden  that  it  would reasonably be deemed inhumane or extraor-
    16  dinarily burdensome under the circumstances and the patient has an irre-
    17  versible or incurable condition, as determined by an  attending  practi-
    18  tioner  with  the  independent  concurrence  of another physician, nurse
    19  practitioner or physician assistant to a reasonable  degree  of  medical
    20  certainty and in accord with accepted medical standards[.]; or
    21    (iii) With respect to a decision to enter an order not to resuscitate,
    22  an attending physician determines, with the independent concurrence of a
    23  second  physician,  to a reasonable degree of medical certainty, that in
    24  the event of a cardiac or respiratory  arrest,  resuscitation  would  be
    25  unsuccessful  in  restoring cardiac and respiratory function or that the
    26  patient will experience repeated arrest in a short  time  period  before
    27  death occurs.
    28    §  3.  Paragraph  (b) of subdivision 5 of section 2994-g of the public
    29  health law, as amended by chapter 708 of the laws of 2019, is amended to
    30  read as follows:
    31    (b) If the attending practitioner, with independent concurrence  of  a
    32  second  physician,  nurse practitioner or physician assistant designated
    33  by the hospital, determines to a reasonable degree of medical  certainty
    34  that:
    35    (i)  (A) life-sustaining treatment offers the patient no medical bene-
    36  fit because the patient will die imminently, even if  the  treatment  is
    37  provided; and
    38    [(ii)]  (B)  the  provision of life-sustaining treatment would violate
    39  accepted medical standards, then such  treatment  may  be  withdrawn  or
    40  withheld  from  an  adult  patient who has been determined to lack deci-
    41  sion-making capacity pursuant to  section  twenty-nine  hundred  ninety-
    42  four-c  of  this  article,  without  judicial approval. This [paragraph]
    43  subparagraph shall not apply to any  treatment  necessary  to  alleviate
    44  pain or discomfort; or
    45    (ii) in the event of cardiac or respiratory arrest, resuscitation will
    46  be  unsuccessful  in  restoring cardiac and respiratory function or that
    47  the patient will experience repeated  arrest  in  a  short  time  period
    48  before death occurs, then an order not to resuscitate may be entered for
    49  an adult patient who has been determined to lack decision-making capaci-
    50  ty  pursuant  to section twenty-nine hundred ninety-four-c of this arti-
    51  cle, without judicial approval.
    52    § 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision  4  of
    53  section  1750-b  of  the  surrogate's court procedure act, as amended by
    54  chapter 198 of the laws of 2016, are amended to read as follows:
    55    (i) the person who is intellectually disabled has a medical  condition
    56  as follows:

        A. 204                              3

     1    A.  a  terminal  condition[, as defined in subdivision twenty-three of
     2  section twenty-nine hundred sixty-one of the public health law]    which
     3  shall  mean  an  illness  or injury from which there is no recovery, and
     4  which can reasonably be expected to cause death within one year; or
     5    B. permanent unconsciousness; or
     6    C. a medical condition other than such person's intellectual disabili-
     7  ty  which  requires life-sustaining treatment, is irreversible and which
     8  will continue indefinitely; [and] or
     9    D. in the case of a decision to enter an  order  not  to  resuscitate,
    10  that  in  the  event of cardiac or respiratory arrest such resuscitation
    11  would be unsuccessful in restoring cardiac and respiratory  function  or
    12  that  the patient will experience repeated arrest in a short time period
    13  before death occurs; and
    14    (ii) except in the case of a decision to enter an order not to  resus-
    15  citate  based  on  clause  D  of subparagraph (i) of this paragraph, the
    16  life-sustaining treatment would impose an extraordinary burden  on  such
    17  person, in light of:
    18    A. such person's medical condition, other than such person's intellec-
    19  tual disability; and
    20    B.  the  expected  outcome  of the life-sustaining treatment, notwith-
    21  standing such person's intellectual disability; and
    22    § 5. This act shall take effect on the ninetieth day  after  it  shall
    23  have become a law.
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