NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A995C
SPONSOR: Paulin TITLE OF BILL:
An act to amend the public health law, in relation to a terminally ill
patient's request for and use of medication for medical aid in dying
PURPOSE:
To provide that a mentally competent, terminally ill patient may request
medication to be self-administered for the purpose of hastening the
patient's death provided the requirements set forth in the act are met,
and to provide certain protection and immunities to health care provid-
ers and other persons, including a physician who prescribes medication
in compliance with the provisions of the article to the terminally ill
patient to be self-administered by the patient.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 provides that this act shall be known and may be cited as
the "Medical Aid in Dying Act".
Section 2 amends the Public Health Law by adding a new article 28-F,
Medical Aid in Dying, comprised of the following sections:
§ 2899-d sets forth definitions.
2899-e sets forth the request process by which a patient may request
medication for the purpose of ending his or her life in accordance with
this article. The patient wishing to request such medication shall make
an oral request and submit a written request, which shall be signed and
dated by the patient and witnessed by at least two adults as provided in
such section, identifying persons who shall not serve as witnesses. The
patient's attending physician, consulting physician and, if applicable,
the mental health professional who provides a capacity determination of
the patient under the article shall not act as a witness.
§ 2899-f sets forth the responsibilities of the attending physician.
2899-g provides that a patient may at any time rescind a request for
medication without regard to the patient's decision-making capacity, and
that the attending physician may not write a prescription for medication
without first offering the patient an opportunity to rescind the
request.
2899-h sets forth the responsibilities of the consulting physician.
2899-i provides that if the attending physician or the consulting physi-
cian determines that the patient may lack decision-making capacity to
make an informed decision due to a condition, including, but not limited
to, a psychiatric or psychological disorder, or other condition causing
impaired judgment, such physician shall refer the patient to a mental
health professional for a determination of whether the patient has deci-
sion-making capacity. If the mental health professional determines that
the patient lacks capacity to make an informed decision, the patient
shall not be deemed a qualified individual and the attending physician
shall not prescribe medication to the patient. A determination made
pursuant to this section that an adult patient lacks decision-making
capacity shall not be construed as a finding that the patient lacks
decision-making capacity for any other purpose.
§ 2899-j sets forth the items that must be documented or filed in the
patients medical record.
2899-k sets forth the form of written request for medication and decla-
ration of witnesses. The section also provides that the written request
shall be written in the same language as any conversations or consulta-
tions between a patient and at least one of his or her attending or
consulting physicians, provided that the written request may be in
English, even if the conversations or consultations were conducted in a
language other than English, if the form of written request includes the
form of interpreter's declaration set forth in the section.
§ 2899-1 provides that a physician, pharmacist, other health care
professional or other person shall not be subject to civil, administra-
tive or criminal liability or penalty or professional disciplinary
action by any government entity for taking any reasonable good-faith
action or refusing to act under the article, including without limita-
tion, engaging in discussions with a patient relating to the risks and
benefits of end-of-life options in the circumstances described in the
article and being present when a qualified individual self-administers
medication. The section further provides that nothing in the section
shall limit civil or criminal liability for, negligence, recklessness or
intentional misconduct.
§ 2899-m provides that a physician, nurse, pharmacist, other health
care provider or other person shall not be under any duty by law or
contract to participate in the provision of medication to a patient. If
a health care provider is unable or unwilling to participate in the
provision of medication to a patient and the patient transfers care to a
new health care provider, the prior health care provider shall transfer
or arrange for the transfer, upon request, of a copy of the patient's
relevant medical records to the new health care provider. A private
health care facility may prohibit the prescribing, dispensing, ordering
or self-administering of medication under the article while the patient
is being treated in or while the patient is residing in such facility if
the requirements set forth in the section have been met. In addition,
where a health care facility has adopted a prohibition under the subdi-
vision, if a patient who wishes to use medication under the article
requests, the patient shall be transferred promptly to another health
care facility that is reasonably accessible under the circumstances and
willing to permit the prescribing, dispensing, ordering or self-adminis-
tering of medication with respect to the patient. Whe re a health care
facility has adopted a prohibition under the subdivision, any health
care provider or employee of the facility who violates the prohibition
may be subject to sanctions otherwise available to the facility,
provided the facility has previously notified the health care provider
or employee of the prohibition in writing.
§ 2899-n provides that (i) a patient who requests medication under the
article will not, because of that request, be considered a person who is
suicidal, and self-administering medication under the article shall not
be deemed to be suicide for any purpose, (ii) action taken in accordance
with the article shall not be construed for any purpose to constitute
suicide, assisted suicide, attempted suicide, promoting a suicide
attempt, mercy killing, or homicide under the law, including as an
accomplice or accessory or otherwise, (iii) no provision in a contract,
will or other agreement, whether written or oral, to the extent the
provision would affect whether a pers\n may make or rescind a request
for medication or take any other action under the article, shall be
valid, (iv) no obligation owing under any contract will be conditioned
upon or affected by the making or rescinding of a request by a person
for medication or taking any other action under the article, (v) a
person and his or her beneficiaries shall not be denied benefits under a
life insurance policy for actions taken in accordance with the article,
and the sale, procurement or issuance of a life or health insurance or
annuity policy or the rate charged for the policy shall not be condi-
tioned upon or affected by the patient pinking or rescinding a request
for medication under the article, (vi) an insurer shall not provide any
information in communications made to a patient about the availability
of medication under the article absent a request by the patient or by
his or her attending physician upon the request of such patient, and any
communication shall not include both the denial of coverage for treat-
ment and information as to the availability of medication under the
article, and (vii) the sale, procurement or issue of any professional
malpractice insurance policy or the rate charged for the policy shall
not be conditioned upon or affected by whether the insured does or does
not take or participate in any action under the article.
§ 2899-o provides that the department of health shall make regulations
providing for the safe disposal of unused medications prescribed,
dispensed or ordered under the article.
§ 2899-p provides that if otherwise authorized by law, the attending
physician may sign the qualified individual's death certificate. The
cause of death listed on a qualified individual's death certificate who
dies after self-administering medication under the article will be the
underlying terminal illness.
§ 2899-q provides for the annual review by the commissioner of health
of a sample of the records maintained under section twenty-eight hundred
ninety-nine-j and twenty-eight hundred ninety-nine-p of the article. The
commissioner shall adopt regulations establishing reporting requirements
for physicians taking action under the article to determine utilization
and compliance with the article. The information collected under the
section shall not constitute a public record available for public
inspection and shall be confidential and shall be collected and main-
tained in a manner that protects the privacy of the patient, his or her
family, and any health care provider acting in connection with such
patient under the article, except that such information may be disclosed
to a governmental agency as authorized or required by law relating to
professional discipline, protection of public health or law enforcement.
The commissioner shall prepare a report annually containing relevant
data regarding utilization and compliance with the article and shall
send such report to the legislature and post such report on its website.
§ 2899-r provides that nothing in the article shall be construed to
limit professional discipline or civil liability resulting from conduct
in violation of the article, negligent conduct, or intentional miscon-
duct by any person. Conduct in violation of the article shall be subject
to applicable criminal liability under state law, including where appro-
priate and without limitation, offenses constituting homicide, forgery,
coercion, and related offenses, or federal law.
2899-s provides the severability clause. Section 3 sets forth the effec-
tive date.
JUSTIFICATION:
The highly publicized, planned death of Brittany Maynard has highlighted
the need for terminally ill patients to be able to access aid in dying.
Ms. Maynard, who was a native of California, was forced to move to
Oregon to gain control of her dying process. Her death, and the accompa-
nying press attention, led the California legislature to pass, and
Governor Jerry Brown to sign, an aid in dying law on October 5, 2015.
The national debate that accompanied Ms. Maynard's plight focused the
nation on the desire of patients with a terminal illness to determine
for themselves - how and when they die. These patients, when mentally
competent, should be afforded this right. Patients should not be forced
to relocate to another state or to leave the country to control how
their lives end. Patients seek to die with dignity, on their own terms,
typically in their own homes, surrounded by their family and other loved
ones.
New Yorkers strongly support empowering terminally-ill, mentally compe-
tent patients to control their own death. A 2015 poll found that 77% of
all New Yorkers support aid in dying, including 75% of Catholics, 72% of
Republicans, 67% of self-identified Conservatives, and 78% of New York-
ers upstate.
Nationally, according to HealthDay/Harris poll findings released in
December 2014, 74% of American adults believe that terminally ill
patients in great. pain should have the right to end their lives (14%
were opposed). Gallup, which has been polling this issue since 1947, has
found that a majority of Americans have supported aid in dying since
1973. Their most recent poll found 68% of Americans support aid in
dying. Similar results were found in a recent survey of Americans by
LifeWay Research (69% of those polled agree that physicians should be
allowed to assist terminally ill patients in ending their life and 67%
agree that it is morally acceptable for a person to ask for a physi-
cian's aid in taking his or her own life.) Physicians also support aid
in dying. In a recent survey conducted by Medscape, 54% of physicians in
the U.S. believe that aid in dying should be permitted, while only 31%
opposed it. The Medical Aid in Dying Act will enable mentally competent,
terminally ill patients to choose to self-administer medication to bring
about a peaceful death. It also provides their physician, when acting in
good faith in accordance with the proVisions of the Act, protections
from civil and criminal liability and professional disciplinary action.
At least seven states - Oregon, Vermont, Washington, California, Monta-
na, New Jersey and Colorado - allow physician assisted aid in dying.
More than 65% of Colorado voters approved the ballot initiative to
provide for aid in dying. Not only did the mayor of the District of
Columbia signed a medical aid in dying act, but legislators in multiple
states throughout the nation have aid in dying bills pending.
Aid in dying legislation is supported by the American Public Health
Association, the American Medical Women's Association, the American
Medical Student Association, the American College of Legal Medicine, and
Lamda Legal.
LEGISLATIVE HISTORY:
2023: A.995a, referred to Health / Same as S. 2445a, referred to Health.
2022: A.4321a, referred to Health / Same as 5.6471, referred to Health.
2020-21:A.4331,Referred to Health/S.647l,Referred to Health
2019-20:A.2694,Referred to Health /S.3947,Referred to Health
2017-18:A.2383-A, Referred to Health / S.3151-A, Referred to Health
2016: A.10059, Referred to Codes / S.7579, Referred to Health
FISCAL IMPLICATIONS:
None to the State.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
995--C
2023-2024 Regular Sessions
IN ASSEMBLY
January 12, 2023
___________
Introduced by M. of A. PAULIN, L. ROSENTHAL, DINOWITZ, HEVESI, STECK,
LAVINE, LUPARDO, RIVERA, THIELE, EPSTEIN, SEAWRIGHT, WOERNER, REYES,
DARLING, CRUZ, SAYEGH, AUBRY, DAVILA, DICKENS, STERN, BURDICK,
GALLAGHER, KELLES, GONZALEZ-ROJAS, MITAYNES, MAMDANI, CLARK, BURKE,
ANDERSON, JEAN-PIERRE, SILLITTI, JACKSON, PRETLOW, SEPTIMO, GLICK,
GIBBS, TAPIA, LUNSFORD, CUNNINGHAM, LEVENBERG, SIMONE, BORES, FORREST,
SHRESTHA, SHIMSKY, RAGA, RAJKUMAR, KIM, HUNTER, STIRPE, CHANDLER-WA-
TERMAN, ARDILA, LEE, TAYLOR, MEEKS, OTIS, ALVAREZ -- Multi-Sponsored
by -- M. of A. BRAUNSTEIN, BRONSON, BURGOS, HYNDMAN, RAMOS, ZINERMAN
-- read once and referred to the Committee on Health -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Health in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- again reported from said committee with amendments, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public health law, in relation to a terminally ill
patient's request for and use of medication for medical aid in dying
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "medical
2 aid in dying act".
3 § 2. The public health law is amended by adding a new article 28-F to
4 read as follows:
5 ARTICLE 28-F
6 MEDICAL AID IN DYING
7 Section 2899-d. Definitions.
8 2899-e. Request process.
9 2899-f. Attending physician responsibilities.
10 2899-g. Right to rescind request; requirement to offer opportu-
11 nity to rescind.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02188-08-4
A. 995--C 2
1 2899-h. Consulting physician responsibilities.
2 2899-i. Referral to mental health professional.
3 2899-j. Medical record documentation requirements.
4 2899-k. Form of written request and witness attestation.
5 2899-l. Protection and immunities.
6 2899-m. Permissible refusals and prohibitions.
7 2899-n. Relation to other laws and contracts.
8 2899-o. Safe disposal of unused medications.
9 2899-p. Death certificate.
10 2899-q. Reporting.
11 2899-r. Penalties.
12 2899-s. Severability.
13 § 2899-d. Definitions. As used in this article:
14 1. "Adult" means an individual who is eighteen years of age or older.
15 2. "Attending physician" means the physician who has primary responsi-
16 bility for the care of the patient and treatment of the patient's termi-
17 nal illness or condition.
18 3. "Decision-making capacity" means the ability to understand and
19 appreciate the nature and consequences of health care decisions, includ-
20 ing the benefits and risks of and alternatives to any proposed health
21 care, including medical aid in dying, and to reach an informed decision.
22 4. "Consulting physician" means a physician who is qualified by
23 specialty or experience to make a professional diagnosis and prognosis
24 regarding a person's terminal illness or condition.
25 5. "Health care facility" means a general hospital, nursing home, or
26 residential health care facility as defined in section twenty-eight
27 hundred one of this chapter, or a hospice as defined in section four
28 thousand two of this chapter; provided that for the purposes of section
29 twenty eight hundred ninety-nine-m of this article, "hospice" shall
30 refer only to a facility providing in-patient hospice care or a hospice
31 residence.
32 6. "Health care provider" means a person licensed, certified, or
33 authorized by law to administer health care or dispense medication in
34 the ordinary course of business or practice of a profession.
35 7. "Informed decision" means a decision by a patient who is suffering
36 from a terminal illness or condition to request and obtain a
37 prescription for medication that the patient may self-administer to end
38 the patient's life that is based on an understanding and acknowledgment
39 of the relevant facts and that is made voluntarily, of the patient's own
40 volition and without coercion, after being fully informed of:
41 (a) the patient's medical diagnosis and prognosis;
42 (b) the potential risks associated with taking the medication to be
43 prescribed;
44 (c) the probable result of taking the medication to be prescribed;
45 (d) the possibility that the patient may choose not to obtain the
46 medication, or may obtain the medication but may decide not to self-ad-
47 minister it; and
48 (e) the feasible alternatives and appropriate treatment options,
49 including but not limited to palliative care and hospice care.
50 8. "Medical aid in dying" means the medical practice of a physician
51 prescribing medication to a qualified individual that the individual may
52 choose to self-administer to bring about death.
53 9. "Medically confirmed" means the medical opinion of the attending
54 physician that a patient has a terminal illness or condition and has
55 made an informed decision which has been confirmed by a consulting
A. 995--C 3
1 physician who has examined the patient and the patient's relevant
2 medical records.
3 10. "Medication" means medication prescribed by a physician under this
4 article.
5 11. "Mental health professional" means a licensed physician, who is a
6 diplomate or eligible to be certified by a national board of psychiatry,
7 psychiatric nurse practitioner, or psychologist, licensed or certified
8 under the education law acting within such mental health professional's
9 scope of practice and who is qualified, by training and experience,
10 certification, or board certification or eligibility, to make a determi-
11 nation under section twenty-eight hundred ninety-nine-i of this article.
12 12. "Palliative care" means health care treatment, including interdis-
13 ciplinary end-of-life care, and consultation with patients and family
14 members, to prevent or relieve pain and suffering and to enhance the
15 patient's quality of life, including hospice care under article forty of
16 this chapter.
17 13. "Patient" means a person who is eighteen years of age or older
18 under the care of a physician.
19 14. "Physician" means an individual licensed to practice medicine in
20 New York state.
21 15. "Qualified individual" means a patient with a terminal illness or
22 condition, who has decision-making capacity, has made an informed deci-
23 sion, and has satisfied the requirements of this article in order to
24 obtain a prescription for medication.
25 16. "Self-administer" means a qualified individual's affirmative,
26 conscious, and voluntary act to ingest medication under this article.
27 Self-administration does not include lethal injection or lethal
28 infusion.
29 17. "Terminal illness or condition" means an incurable and irrevers-
30 ible illness or condition that has been medically confirmed and will,
31 within reasonable medical judgment, produce death within six months.
32 18. "Third-party health care payer" has its ordinary meaning and
33 includes, but is not limited to, an insurer, organization or corporation
34 licensed or certified under article thirty-two, forty-three or forty-
35 seven of the insurance law, or article forty-four of the public health
36 law; or an entity such as a pharmacy benefits manager, fiscal adminis-
37 trator, or administrative services provider that participates in the
38 administration of a third-party health care payer system.
39 § 2899-e. Request process. 1. Oral and written request. A patient
40 wishing to request medication under this article shall make an oral
41 request and submit a written request to the patient's attending physi-
42 cian.
43 2. Making a written request. A patient may make a written request for
44 and consent to self-administer medication for the purpose of ending such
45 patient's life in accordance with this article if the patient:
46 (a) has been determined by the attending physician to have a terminal
47 illness or condition and which has been medically confirmed by a
48 consulting physician; and
49 (b) based on an informed decision, expresses voluntarily, of the
50 patient's own volition and without coercion the request for medication
51 to end such patient's life.
52 3. Written request signed and witnessed. (a) A written request for
53 medication under this article shall be signed and dated by the patient
54 and witnessed by at least two adults who, in the presence of the
55 patient, attest that to the best of the persons knowledge and belief the
56 patient has decision-making capacity, is acting voluntarily, is making
A. 995--C 4
1 the request for medication of the patient's own volition and is not
2 being coerced to sign the request. The written request shall be in
3 substantially the form described in section twenty-eight hundred nine-
4 ty-nine-k of this article.
5 (b) Both witnesses shall be adults who are not:
6 (i) a relative of the patient by blood, marriage or adoption;
7 (ii) a person who at the time the request is signed would be entitled
8 to any portion of the estate of the patient upon death under any will or
9 by operation of law;
10 (iii) an owner, operator, employee or independent contractor of a
11 health care facility where the patient is receiving treatment or is a
12 resident;
13 (iv) a domestic partner of the patient, as defined in subdivision
14 seven of section twenty-nine hundred ninety-four-a of this chapter;
15 (v) an agent under the patient's health care proxy as defined in
16 subdivision five of section twenty-nine hundred eighty of this chapter;
17 or
18 (vi) an agent acting under a power of attorney for the patient as
19 defined in section 5-1501 of the general obligations law.
20 (c) The attending physician, consulting physician and, if applicable,
21 the mental health professional who provides a decision-making capacity
22 determination of the patient under this article shall not be a witness.
23 4. No person shall qualify for medical aid in dying under this article
24 solely because of age or disability.
25 5. Requests for a medical aid-in-dying prescription must be made by
26 the qualified individual and may not be made by any other individual,
27 including the qualified individual's health care agent, or other agent
28 or surrogate, or via advance healthcare directive.
29 § 2899-f. Attending physician responsibilities. 1. The attending
30 physician shall examine the patient and the patient's relevant medical
31 records and:
32 (a) make a determination of whether a patient has a terminal illness
33 or condition, has decision-making capacity, has made an informed deci-
34 sion and has made the request voluntarily of the patient's own volition
35 and without coercion;
36 (b) inform the patient of the requirement under this article for
37 confirmation by a consulting physician, and refer the patient to a
38 consulting physician upon the patient's request;
39 (c) refer the patient to a mental health professional pursuant to
40 section twenty-eight hundred ninety-nine-i of this article if the
41 attending physician believes that the patient may lack decision-making
42 capacity to make an informed decision;
43 (d) provide information and counseling under section twenty-nine
44 hundred ninety-seven-c of this chapter;
45 (e) ensure that the patient is making an informed decision by discuss-
46 ing with the patient: (i) the patient's medical diagnosis and prognosis;
47 (ii) the potential risks associated with taking the medication to be
48 prescribed; (iii) the probable result of taking the medication to be
49 prescribed; (iv) the possibility that the patient may choose to obtain
50 the medication but not take it; (v) the feasible alternatives and appro-
51 priate treatment options, including but not limited to (1) information
52 and counseling regarding palliative and hospice care and end-of-life
53 options appropriate to the patient, including but not limited to: the
54 range of options appropriate to the patient; the prognosis, risks and
55 benefits of the various options; and the patient's legal rights to
56 comprehensive pain and symptom management at the end of life; and (2)
A. 995--C 5
1 information regarding treatment options appropriate to the patient,
2 including the prognosis, risks and benefits of the various treatment
3 options;
4 (f) offer to refer the patient for other appropriate treatment
5 options, including but not limited to palliative care and hospice care;
6 (g) provide health literate and culturally appropriate educational
7 material regarding hospice and palliative care that has been prepared by
8 the department in consultation with representatives of hospice and
9 palliative care providers from all regions of New York state, and that
10 is available on the department's website for access and download,
11 provided, however, an otherwise eligible patient cannot be denied care
12 under this article if these materials are not developed by the effective
13 date of this article;
14 (h) discuss with the patient the importance of:
15 (i) having another person present when the patient takes the medica-
16 tion and the restriction that no person other than the patient may
17 administer the medication;
18 (ii) not taking the medication in a public place; and
19 (iii) informing the patient's family of the patient's decision to
20 request and take medication that will end the patient's life; a patient
21 who declines or is unable to notify family shall not have such patient's
22 request for medication denied for that reason;
23 (i) inform the patient that such patient may rescind the request for
24 medication at any time and in any manner;
25 (j) fulfill the medical record documentation requirements of section
26 twenty-eight hundred ninety-nine-j of this article; and
27 (k) ensure that all appropriate steps are carried out in accordance
28 with this article before writing a prescription for medication.
29 2. Upon receiving confirmation from a consulting physician under
30 section twenty-eight hundred ninety-nine-h of this article and subject
31 to section twenty-eight hundred ninety-nine-i of this article, the
32 attending physician who determines that the patient has a terminal
33 illness or condition, has decision-making capacity and has made a volun-
34 tary request for medication as provided in this article, may personally,
35 or by referral to another physician, prescribe or order appropriate
36 medication in accordance with the patient's request under this article,
37 and at the patient's request, facilitate the filling of the prescription
38 and delivery of the medication to the patient.
39 3. In accordance with the direction of the prescribing or ordering
40 physician and the consent of the patient, the patient may self-adminis-
41 ter the medication to themselves. A health care professional or other
42 person shall not administer the medication to the patient.
43 § 2899-g. Right to rescind request; requirement to offer opportunity
44 to rescind. 1. A patient may at any time rescind the request for medi-
45 cation under this article without regard to the patient's decision-mak-
46 ing capacity.
47 2. A prescription for medication may not be written without the
48 attending physician offering the qualified individual an opportunity to
49 rescind the request.
50 § 2899-h. Consulting physician responsibilities. Before a patient who
51 is requesting medication may receive a prescription for medication under
52 this article, a consulting physician must:
53 1. examine the patient and such patient's relevant medical records;
54 2. confirm, in writing, to the attending physician and the patient,
55 whether: (a) the patient has a terminal illness or condition; (b) the
56 patient is making an informed decision; (c) the patient has decision-
A. 995--C 6
1 making capacity, or provide documentation that the consulting physician
2 has referred the patient for a determination under section twenty-eight
3 hundred ninety-nine-i of this article; and (d) the patient is acting
4 voluntarily, of the patient's own volition and without coercion.
5 § 2899-i. Referral to mental health professional. 1. If the attending
6 physician or the consulting physician determines that the patient may
7 lack decision-making capacity to make an informed decision due to a
8 condition, including, but not limited to, a psychiatric or psychological
9 disorder, or other condition causing impaired judgement, the attending
10 physician or consulting physician shall refer the patient to a mental
11 health professional for a determination of whether the patient has deci-
12 sion-making capacity to make an informed decision. The referring physi-
13 cian shall advise the patient that the report of the mental health
14 professional will be provided to the attending physician and the
15 consulting physician.
16 2. A mental health professional who evaluates a patient under this
17 section shall report, in writing, to the attending physician and the
18 consulting physician, the mental health professional's independent
19 conclusions about whether the patient has decision-making capacity to
20 make an informed decision, provided that if, at the time of the report,
21 the patient has not yet been referred to a consulting physician, then
22 upon referral the attending physician shall provide the consulting
23 physician with a copy of the mental health professional's report. If the
24 mental health professional determines that the patient lacks decision-
25 making capacity to make an informed decision, the patient shall not be
26 deemed a qualified individual, and the attending physician shall not
27 prescribe medication to the patient.
28 3. A determination made pursuant to this section that an adult patient
29 lacks decision-making capacity shall not be construed as a finding that
30 the patient lacks decision-making capacity for any other purpose.
31 § 2899-j. Medical record documentation requirements. An attending
32 physician shall document or file the following in the patient's medical
33 record:
34 1. the dates of all oral requests by the patient for medication under
35 this article;
36 2. the written request by the patient for medication under this arti-
37 cle, including the declaration of witnesses and interpreter's declara-
38 tion, if applicable;
39 3. the attending physician's diagnosis and prognosis, determination of
40 decision-making capacity, and determination that the patient is acting
41 voluntarily, of the patient's own volition and without coercion, and has
42 made an informed decision;
43 4. if applicable, written confirmation of decision-making capacity
44 under section twenty-eight hundred ninety-nine-i of this article; and
45 5. a note by the attending physician indicating that all requirements
46 under this article have been met and indicating the steps taken to carry
47 out the request, including a notation of the medication prescribed or
48 ordered.
49 § 2899-k. Form of written request and witness attestation. 1. A
50 request for medication under this article shall be in substantially the
51 following form:
52 REQUEST FOR MEDICATION TO END MY LIFE
53 I, _________________________________, am an adult who has decision-
54 making capacity, which means I understand and appreciate the nature and
55 consequences of health care decisions, including the benefits and risks
A. 995--C 7
1 of and alternatives to any proposed health care, and to reach an
2 informed decision and to communicate health care decisions to a physi-
3 cian.
4 I have been diagnosed with (insert diagnosis), which my attending
5 physician has determined is a terminal illness or condition, which has
6 been medically confirmed by a consulting physician.
7 I have been fully informed of my diagnosis and prognosis, the nature
8 of the medication to be prescribed and potential associated risks, the
9 expected result, and the feasible alternatives and treatment options
10 including but not limited to palliative care and hospice care.
11 I request that my attending physician prescribe medication that will
12 end my life if I choose to take it, and I authorize my attending physi-
13 cian to contact another physician or any pharmacist about my request.
14 INITIAL ONE:
15 ( ) I have informed or intend to inform one or more members of my
16 family of my decision.
17 ( ) I have decided not to inform any member of my family of my deci-
18 sion.
19 ( ) I have no family to inform of my decision.
20 I understand that I have the right to rescind this request or decline
21 to use the medication at any time.
22 I understand the importance of this request, and I expect to die if I
23 take the medication to be prescribed. I further understand that although
24 most deaths occur within three hours, my death may take longer, and my
25 attending physician has counseled me about this possibility.
26 I make this request voluntarily, of my own volition and without being
27 coerced, and I accept full responsibility for my actions.
28 Signed: __________________________
29 Dated: ___________________________
30 DECLARATION OF WITNESSES
31 I declare that the person signing this "Request for Medication to End
32 My Life":
33 (a) is personally known to me or has provided proof of identity;
34 (b) voluntarily signed the "Request for Medication to End My Life" in
35 my presence or acknowledged to me that the person signed it; and
36 (c) to the best of my knowledge and belief, has decision-making capac-
37 ity and is making the "Request for Medication to End My Life" voluntar-
38 ily, of the person's own volition and is not being coerced to sign the
39 "Request for Medication to End My Life".
40 I am not the attending physician or consulting physician of the person
41 signing the "Request for Medication to End My Life" or, if applicable,
42 the mental health professional who provides a decision-making capacity
43 determination of the person signing the "Request for Medication to End
44 My Life" at the time the "Request for Medication to End My Life" was
45 signed.
46 I further declare under penalty of perjury that the statements made
47 herein are true and correct and false statements made herein are punish-
48 able.
49 Witness 1, Date:
A. 995--C 8
1 (Printed name)
2 (Address)
3 (Telephone number)
4 I further declare that I am not (i) related to the above-named patient
5 by blood, marriage or adoption, (ii) entitled at the time the patient
6 signed the "Request for Medication to End My Life" to any portion of the
7 estate of the patient upon such patient's death under any will or by
8 operation of law, or (iii) an owner, operator, employee or independent
9 contractor of a health care facility where the patient is receiving
10 treatment or is a resident.
11 Witness 2, Date:
12 (Printed name)
13 (Address)
14 (Telephone number)
15 I further declare that I am not (i) related to the above-named patient
16 by blood, marriage or adoption, (ii) entitled at the time the patient
17 signed the "Request for Medication to End My Life" to any portion of the
18 estate of the patient upon such patient's death under any will or by
19 operation of law, or (iii) an owner, operator, employee or independent
20 contractor of a health care facility where the patient is receiving
21 treatment or is a resident.
22 2. (a) The "Request for Medication to End My Life" shall be written in
23 the same language as any conversations, consultations, or interpreted
24 conversations or consultations between a patient and at least one of the
25 patient's attending or consulting physicians.
26 (b) Notwithstanding paragraph (a) of this subdivision, the written
27 "Request for Medication to End My Life" may be prepared in English even
28 when the conversations or consultations or interpreted conversations or
29 consultations were conducted in a language other than English or with
30 auxiliary aids or hearing, speech or visual aids, if the English
31 language form includes an attached declaration by the interpreter of the
32 conversation or consultation, which shall be in substantially the
33 following form:
34 INTERPRETER'S DECLARATION
35 I, (insert name of interpreter), (mark as applicable):
36 ( ) for a patient whose conversations or consultations or interpreted
37 conversations or consultations were conducted in a language other than
38 English and the "Request for Medication to End My Life" is in English: I
39 declare that I am fluent in English and (insert target language). I have
40 the requisite language and interpreter skills to be able to interpret
41 effectively, accurately and impartially information shared and communi-
42 cations between the attending or consulting physician and (name of
43 patient).
44 I certify that on (insert date), at approximately (insert time), I
45 interpreted the communications and information conveyed between the
46 physician and (name of patient) as accurately and completely to the best
A. 995--C 9
1 of my knowledge and ability and read the "Request for Medication to End
2 My Life" to (name of patient) in (insert target language).
3 (Name of patient) affirmed to me such patient's desire to sign the
4 "Request for Medication to End My Life" voluntarily, of (name of
5 patient)'s own volition and without coercion.
6 ( ) for a patient with a speech, hearing or vision disability: I
7 declare that I have the requisite language, reading and/or interpreter
8 skills to communicate with the patient and to be able to read and/or
9 interpret effectively, accurately and impartially information shared and
10 communications that occurred on (insert date) between the attending or
11 consulting physician and (name of patient).
12 I certify that on (insert date), at approximately (insert time), I
13 read and/or interpreted the communications and information conveyed
14 between the physician and (name of patient) impartially and as accurate-
15 ly and completely to the best of my knowledge and ability and, where
16 needed for effective communication, read or interpreted the "Request for
17 Medication to End my Life" to (name of patient).
18 (Name of patient) affirmed to me such patient's desire to sign the
19 "Request for Medication to End My Life" voluntarily, of (name of
20 patient)'s own volition and without coercion.
21 I further declare under penalty of perjury that (i) the foregoing is
22 true and correct; (ii) I am not (A) related to (name of patient) by
23 blood, marriage or adoption, (B) entitled at the time (name of patient)
24 signed the "Request for Medication to End My Life" to any portion of the
25 estate of (name of patient) upon such patient's death under any will or
26 by operation of law, or (C) an owner, operator, employee or independent
27 contractor of a health care facility where (name of patient) is receiv-
28 ing treatment or is a resident, except that if I am an employee or inde-
29 pendent contractor at such health care facility, providing interpreter
30 services is part of my job description at such health care facility or I
31 have been trained to provide interpreter services and (name of patient)
32 requested that I provide interpreter services to such patient for the
33 purposes stated in this Declaration; and (iii) false statements made
34 herein are punishable.
35 Executed at (insert city, county and state) on this (insert day of
36 month) of (insert month), (insert year).
37 (Signature of Interpreter)
38 (Printed name of Interpreter)
39 (ID # or Agency Name)
40 (Address of Interpreter)
41 (Language Spoken by Interpreter)
42 (c) An interpreter whose services are provided under paragraph (b) of
43 this subdivision shall not (i) be related to the patient who signs the
44 "Request for Medication to End My Life" by blood, marriage or adoption,
45 (ii) be entitled at the time the "Request for Medication to End My Life"
46 is signed by the patient to any portion of the estate of the patient
47 upon death under any will or by operation of law, or (iii) be an owner,
48 operator, employee or independent contractor of a health care facility
49 where the patient is receiving treatment or is a resident; provided that
A. 995--C 10
1 an employee or independent contractor whose job description at the
2 health care facility includes interpreter services or who is trained to
3 provide interpreter services and who has been requested by the patient
4 to serve as an interpreter under this article shall not be prohibited
5 from serving as an interpreter under this article.
6 § 2899-l. Protection and immunities. 1. A physician, pharmacist, other
7 health care provider or other person shall not be subject to civil,
8 administrative, or criminal liability or penalty or professional disci-
9 plinary action by any government entity for taking any reasonable good-
10 faith action or refusing to act under this article, including, but not
11 limited to: (a) engaging in discussions with a patient relating to the
12 risks and benefits of end-of-life options in the circumstances described
13 in this article, (b) providing a patient, upon request, with a referral
14 to another health care provider, (c) being present when a qualified
15 individual self-administers medication, (d) refraining from acting to
16 prevent the qualified individual from self-administering such medica-
17 tion, or (e) refraining from acting to resuscitate the qualified indi-
18 vidual after the qualified individual self-administers such medication.
19 2. A health care provider or other person shall not be subject to
20 employment, credentialing, or contractual liability or penalty for any
21 reasonable good-faith action or refusing to act under this article,
22 including, but not limited to:
23 (a) engaging in discussions with a patient relating to the risks and
24 benefits of end-of-life options in the circumstances described in this
25 article;
26 (b) providing a patient, upon request, with a referral to another
27 health care provider;
28 (c) being present when a qualified individual self-administers medica-
29 tion;
30 (d) refraining from acting to prevent the qualified individual from
31 self-administering such medication; or
32 (e) refraining from acting to resuscitate the qualified individual
33 after the qualified individual self-administers such medication. Howev-
34 er, this subdivision does not bar a health care facility from acting
35 under paragraph (c) of subdivision two of section twenty-eight hundred
36 ninety-nine-m of this article.
37 3. Nothing in this section shall limit civil, administrative, or crim-
38 inal liability or penalty or any professional disciplinary action, or
39 employment, credentialing, or contractual liability or penalty for
40 negligence, recklessness or intentional misconduct.
41 § 2899-m. Permissible refusals and prohibitions. 1. (a) A physician,
42 nurse, pharmacist, other health care provider or other person shall not
43 be under any duty, by law or contract, to participate in the provision
44 of medication to a patient under this article.
45 (b) If a health care provider is unable or unwilling to participate in
46 the provision of medication to a patient under this article and the
47 patient transfers care to a new health care provider, the prior health
48 care provider shall transfer or arrange for the transfer, upon request,
49 of a copy of the patient's relevant medical records to the new health
50 care provider.
51 2. (a) A private health care facility may prohibit the prescribing,
52 dispensing, ordering or self-administering of medication under this
53 article while the patient is being treated in or while the patient is
54 residing in the health care facility if:
55 (i) the prescribing, dispensing, ordering or self-administering is
56 contrary to a formally adopted policy of the facility that is expressly
A. 995--C 11
1 based on sincerely held religious beliefs or moral convictions central
2 to the facility's operating principles; and
3 (ii) the facility has informed the patient of such policy prior to
4 admission or as soon as reasonably possible.
5 (b) Where a facility has adopted a prohibition under this subdivision,
6 if a patient who wishes to use medication under this article requests,
7 the patient shall be transferred promptly to another health care facili-
8 ty that is reasonably accessible under the circumstances and willing to
9 permit the prescribing, dispensing, ordering and self-administering of
10 medication under this article with respect to the patient.
11 (c) Where a health care facility has adopted a prohibition under this
12 subdivision, any health care provider or employee or independent
13 contractor of the facility who violates the prohibition may be subject
14 to sanctions otherwise available to the facility, provided the facility
15 has previously notified the health care provider, employee or independ-
16 ent contractor of the prohibition in writing.
17 § 2899-n. Relation to other laws and contracts. 1. (a) A patient who
18 requests medication under this article shall not, because of that
19 request, be considered to be a person who is suicidal, and self-adminis-
20 tering medication under this article shall not be deemed to be suicide,
21 for any purpose.
22 (b) Action taken in accordance with this article shall not be
23 construed for any purpose to constitute suicide, assisted suicide,
24 attempted suicide, promoting a suicide attempt, euthanasia, mercy kill-
25 ing, or homicide under the law, including as an accomplice or accessory
26 or otherwise.
27 2. (a) No provision in a contract, other agreement or testamentary
28 instrument, whether written or oral, to the extent the provision would
29 affect whether a person may make or rescind a request for medication or
30 take any other action under this article, shall be valid.
31 (b) No obligation owing under any contract, other agreement or testa-
32 mentary instrument shall be conditioned or affected by the making or
33 rescinding of a request by a person for medication or taking any other
34 action under this article.
35 3. (a) A person and such person's beneficiaries shall not be denied
36 benefits under a life insurance policy for actions taken in accordance
37 with this article.
38 (b) The sale, procurement or issuance of a life insurance or annuity
39 policy or third-party health care payer policy or coverage, or the rate
40 charged for a policy or coverage, shall not be conditioned upon or
41 affected by a patient making or rescinding a request for medication
42 under this article.
43 (c) This article shall not limit the effect of a life insurance policy
44 provision concerning incontestability pursuant to article thirty-two of
45 the insurance law or any rights or obligations concerning a material
46 misrepresentation in accordance with article thirty-one of the insurance
47 law.
48 (d) No third-party health care payer may deny coverage for any service
49 or item that would otherwise be covered by the policy because the
50 patient has or has not chosen to request or use medication under this
51 article.
52 4. An insurer or third-party health care payer shall not provide any
53 information in communications made to a patient about the availability
54 of medication under this article absent a request by the patient or by
55 such patient's attending physician upon the request of such patient. Any
56 communication shall not include both the denial of coverage for treat-
A. 995--C 12
1 ment and information as to the availability of medication under this
2 article. This subdivision does not bar the inclusion of information as
3 to the coverage of medication and professional services under this arti-
4 cle in information generally stating what is covered by a third-party
5 health care payer or provided in response to a request by the patient or
6 by such patient's attending physician upon the request of the patient.
7 5. The sale, procurement, or issue of any professional malpractice
8 insurance policy or the rate charged for the policy shall not be condi-
9 tioned upon or affected by whether the insured does or does not take or
10 participate in any action under this article.
11 § 2899-o. Safe disposal of unused medications. A person who has
12 custody or control of any unused medication prescribed under this arti-
13 cle after the death of the qualified individual shall personally deliver
14 the unused medication for disposal to the nearest qualified facility
15 that properly disposes of controlled substances or shall dispose of it
16 by lawful means in accordance with regulations made by the commissioner,
17 regulations made by or guidelines of the commissioner of education, or
18 guidelines of a federal drug enforcement administration approved take-
19 back program. A qualified facility that properly disposes of controlled
20 substances shall accept and dispose of any medication delivered to it as
21 provided hereunder regardless of whether such medication is a controlled
22 substance. The commissioner may make regulations as may be appropriate
23 for the safe disposal of unused medications prescribed, dispensed or
24 ordered under this article as provided in this section.
25 § 2899-p. Death certificate. 1. If otherwise authorized by law, the
26 attending physician may sign the qualified individual's death certif-
27 icate.
28 2. The cause of death listed on a qualified individual's death certif-
29 icate who dies after self-administering medication under this article
30 will be the underlying terminal illness or condition.
31 § 2899-q. Reporting. 1. The commissioner shall annually review a
32 sample of the records maintained under sections twenty-eight hundred
33 ninety-nine-j and twenty-eight hundred ninety-nine-p of this article.
34 The commissioner shall adopt regulations establishing reporting require-
35 ments for physicians taking action under this article to determine
36 utilization and compliance with this article. The information collected
37 under this subdivision shall not constitute a public record available
38 for public inspection and shall be confidential and collected and main-
39 tained in a manner that protects the privacy of the patient, the
40 patient's family, and any health care provider acting in connection with
41 such patient under this article, except that such information may be
42 disclosed to a governmental agency as authorized or required by law
43 relating to professional discipline, protection of public health or law
44 enforcement.
45 2. The commissioner shall prepare a report annually containing rele-
46 vant data regarding utilization and compliance with this article and
47 shall send such report to the legislature, and post such report on the
48 department's website.
49 § 2899-r. Penalties. 1. Nothing in this article shall be construed to
50 limit professional discipline or civil liability resulting from conduct
51 in violation of this article, negligent conduct, or intentional miscon-
52 duct by any person.
53 2. Conduct in violation of this article shall be subject to applicable
54 criminal liability under state law, including, where appropriate and
55 without limitation, offenses constituting homicide, forgery, coercion,
56 and related offenses, or federal law.
A. 995--C 13
1 § 2899-s. Severability. If any provision of this article or any appli-
2 cation of any provision of this article, is held to be invalid, or to
3 violate or be inconsistent with any federal law or regulation, that
4 shall not affect the validity or effectiveness of any other provision of
5 this article, or of any other application of any provision of this arti-
6 cle, which can be given effect without that provision or application;
7 and to that end, the provisions and applications of this article are
8 severable.
9 § 3. This act shall take effect immediately.
