NY State Senate Bill 2009-S5435

Senate Bill S5435

2009-2010 Legislative Session

Authorizes consumer advisory board to make health care decisions for certain developmentally disabled persons who resided at the former Willowbrook state school

download bill text pdf

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to judiciary
Jul 16, 2009	committed to rules
Jun 04, 2009	advanced to third reading
Jun 03, 2009	2nd report cal.
Jun 02, 2009	1st report cal.528
May 05, 2009	referred to judiciary

2009-S5435 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Surrogate's Court Procedure Act
Laws Affected:: Amd §1750-b, SCPA
Versions Introduced in 2011-2012 Legislative Session:: S3169

2009-S5435 (ACTIVE) - Summary

Authorizes the consumer advisory board to make health care decisions for certain developmentally disabled persons who resided at the former Willowbrook state school on March 17, 1972 or subsequently returned to such school, and who have no appointed guardians or family members.

2009-S5435 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5435

 TITLE OF BILL :

An act to amend the surrogate's court procedure act, in relation to
authorizing the consumer advisory board to make health care decisions
for certain residents of the former Willowbrook state school


 PURPOSE OF THE BILL :

This bill would amend the Surrogate's Court Procedure Act (SCPA) to
authorize the Consumer Advisory Board (CAB) to make end-of-life
decisions for persons with developmental disabilities resided at the
Willowbrook State School as of March 17, 1972 or those 104 individuals
who were in community care status on that date and subsequently
returned to Willowbrook or a related facility ("Willowbrook Class
members") who lack capacity to make their own health care decisions.

 SUMMARY OF PROVISIONS :

Section 1 of the bill would amend SCPA § 1750-b(1)(a) and (b) to
authorize the CAB to make decisions regarding the withholding or
withdrawing of life-sustaining treatment for Willowbrook Class members
who are fully represented by the CAB and who have no guardian or r
qualified family member to make such a decision on their behalf and to

give the Commissioner of the Office of Mental Retardation an d
Developmental Disabilities the discretion to promulgate regulations,
with the advice of the CAB, to implement this bill. This section on
would also make a technical correction to delete "court" from the name
of the surrogate decision-making committee.

Section 2 of the bill provides for an immediate effective date.

 EXISTING LAW :

SCPA § 1750-b(1)(a) authorizes qualified family members or the
surrogate decision-making committee to make certain decisions on
behalf of a person with developmental disabilities who lacks capacity
to make his or her own health care decisions, including the decision
to withhold or withdraw life-sustaining treatment.

SCPA § 1750-b(1)(b) authorizes the Commissioner of Mental Retardation
and Developmental Disabilities to promulgate regulations establishing
the prioritized list of family members who are authorized to make
decisions regarding the withholding or withdrawing of life-sustaining
treatment.

 PRIOR LEGISLATIVE HISTORY :

This is a new proposal.

 STATEMENT IN SUPPORT :

In the last several years, legislation has been enacted which expands
the authority for end-of-life health care decisions. Chapter 105 of
the Laws of 2007 authorized qualified family members to make such
decisions when the individual had no legal guardian. Subsequently,
Chapter 262 of the Laws of 2008 authorized surrogate decision making
committees to make major medical treatment decisions, including
end-of-life decisions, for individuals with developmental disabilities
who lack capacity to make their own health care decisions and who had
no qualified family member or legal guardian.

This bill would provide authority for the CAB to make end-of-life
decisions for Willowbrook class members. The CAB was created by the
Willowbrook Consent Decree to advocate for Willowbrook Class
consumers, particularly those who cannot advocate for themselves or
have no active family members or legal guardians to represent their
interests. The CAB is already authorized to make major health care
decisions for Willowbrook Class members they fully represent, except
for end-of-life health care decisions. This bill would allow for the
CAB to also make end-of-life decisions for persons they represent,
where there is no qualified family member or legal guardian, and where
the CAB has the most extensive knowledge of the person's health care
needs and desires. The Commissioner of OMRDD is also authorized to
develop regulations, with advice from the CAB to implement this
provision.

 BUDGET IMPLICATIONS :

This proposal is expected to have a minimal fiscal impact.

 EFFECTIVE DATE :
This bill would take effect immediately.

2009-S5435 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5435

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               May 5, 2009
                               ___________

Introduced by Sen. HUNTLEY -- (at request of the Office of Mental Retar-
  dation  Development  Disabilities)  -- read twice and ordered printed,
  and when printed to be committed to the Committee on Judiciary

AN ACT to amend the surrogate's court  procedure  act,  in  relation  to
  authorizing  the consumer advisory board to make health care decisions
  for certain residents of the former Willowbrook state school

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraphs (a) and (b) of subdivision 1 of section 1750-b
of the surrogate's court procedure act, as added by chapter 105  of  the
laws of 2007, the closing paragraph of paragraph (a) as added by chapter
262 of the laws of 2008, are amended to read as follows:
  (a)  For  the  purposes  of  making a decision to withhold or withdraw
life-sustaining treatment pursuant to this section, in  the  case  of  a
person  for  whom  no  guardian  has  been appointed pursuant to section
seventeen hundred fifty or seventeen hundred fifty-a of this article,  a
"guardian"  shall  also  mean  a  family  member of a person who (i) has
mental retardation, or (ii) has a developmental disability,  as  defined
in  section  1.03  of  the mental hygiene law, which (A) includes mental
retardation, or (B) results in a similar impairment of general intellec-
tual functioning or adaptive behavior so that such person  is  incapable
of  managing  himself or herself, and/or his or her affairs by reason of
such  developmental  disability.  Qualified  family  members  shall   be
included  in a prioritized list OF SAID FAMILY MEMBERS pursuant to regu-
lations established by the commissioner of mental retardation and devel-
opmental disabilities.  Such family members must have a significant  and
ongoing  involvement  in  a person's life so as to have sufficient know-
ledge of their needs and, when reasonably known  or  ascertainable,  the
person's wishes, including moral and religious beliefs. IN THE CASE OF A
PERSON  WHO  WAS  A  RESIDENT  OF THE FORMER WILLOWBROOK STATE SCHOOL ON
MARCH SEVENTEENTH, NINETEEN HUNDRED SEVENTY-TWO AND  THOSE  ONE  HUNDRED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07417-03-9

S. 5435                             2

FOUR  INDIVIDUALS  WHO  WERE  IN  COMMUNITY CARE STATUS ON THAT DATE AND
SUBSEQUENTLY RETURNED TO WILLOWBROOK OR  A  RELATED  FACILITY,  WHO  ARE
FULLY REPRESENTED BY THE CONSUMER ADVISORY BOARD AND WHO HAVE NO GUARDI-
ANS  APPOINTED  PURSUANT  TO  THIS  ARTICLE  OR HAVE NO QUALIFIED FAMILY
MEMBERS TO MAKE SUCH A DECISION, THEN A "GUARDIAN" SHALL ALSO  MEAN  THE
CONSUMER  ADVISORY  BOARD.  A  decision  of  such  family members OR THE
CONSUMER ADVISORY BOARD to withhold or withdraw  life-sustaining  treat-
ment  shall  be  subject to all of the protections, procedures and safe-
guards which apply to the decision of a guardian to withhold or withdraw
life-sustaining treatment pursuant to this section.
  In the case of a person for whom no guardian has been appointed pursu-
ant to this article or for whom there is no qualified family  member  OR
THE CONSUMER ADVISORY BOARD available to make such a decision, a "guard-
ian"  shall  also mean, notwithstanding the definitions in section 80.03
of the mental hygiene law, a surrogate [court]  decision-making  commit-
tee,  as defined in article eighty of the mental hygiene law. All decla-
rations and procedures, including expedited procedures, to  comply  with
this  section  shall  be  established  by regulations promulgated by the
commission on quality of care and advocacy for  persons  with  disabili-
ties.
  (b)  Regulations establishing the prioritized list OF QUALIFIED FAMILY
MEMBERS required by paragraph (a) of this subdivision shall be developed
by the commissioner of mental retardation and developmental disabilities
in conjunction with parents, advocates and family members of persons who
are mentally retarded. REGULATIONS TO IMPLEMENT  THE  AUTHORITY  OF  THE
CONSUMER  ADVISORY  BOARD  PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION
MAY BE PROMULGATED BY THE COMMISSIONER OF THE OFFICE OF MENTAL  RETARDA-
TION  AND DEVELOPMENTAL DISABILITIES WITH ADVICE FROM THE CONSUMER ADVI-
SORY BOARD.
  S 2. This act shall take effect immediately.

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