senate Bill S7156A

Authorizes the issuance of an order not to resuscitate in cases of medical futility

download pdf

Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 01 / May / 2014
    • REFERRED TO HEALTH
  • 16 / Jun / 2014
    • AMEND AND RECOMMIT TO HEALTH
  • 16 / Jun / 2014
    • PRINT NUMBER 7156A

Summary

Relates to restoring medical futility as a basis for DNR.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A9648
Versions:
S7156
S7156A
Legislative Cycle:
2013-2014
Current Committee:
Senate Health
Law Section:
Public Health Law
Laws Affected:
Amd §§2994-d & 2994-g, Pub Health L; amd §1750-b, SCPA

Sponsor Memo

BILL NUMBER:S7156A

TITLE OF BILL: An act to amend the public health law and the surro-
gate's court procedure 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

PURPOSE OF 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 NYS laws that govern health care decisions, includ-
ing life-sustaining treatment decisions, for patients who lack deci-
sion-making capacity. The SDMIAs address these topics:

*SDMIA 1 Technical / Minor Amendments

*SDMIA 2 Repeals PHL Art. 29-B Orders Not to Resuscitate for Patients in
Mental Hygiene Facilities

*SDMIA 3 Determining Patient Incapacity

*SDMIA 4 Decisions by a Health Care Agent About Artificial Nutrition and
Hydration

*SDMIA 5 Confirm the Primacy of a Patient's Clear Prior Decision

*SDMIA 6 Restore Medical Futility as a Basis for a DNR Order

*SDMIA 7 Life-Sustaining Treatment Decisions for Developmentally Disa-
bled Persons

This bill, SDMIA 6, 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. 29B) for when a surrogate may consent to DNR
order: i.e, 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" ).

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 amends SCPA § 1750-b.4(b) to restore medical futility as a
basis for a DNR order for a developmentally disabled patient who does
not have a surrogate, without need for approval by a surrogate decision
making committee convened pursuant to the MHL Article 80.

Section 6 is the effective date.

JUSTIFICATION: Under the former DNR law (PHL Art 29-B), a surrogate
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 resusci-
tation "will be unsuccessful in restoring cardiac and respiratory func-
tion 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 disabled
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.

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.

PRIOR LEGISLATIVE HISTORY: S.5321 (Sen. Hannon) (2013)/ A.7371 (M. of A.
Gottfried)(2013) included all of these provisions, as well as other
provisions

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the ninetieth day after it
shall become a law

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

                                 7156--A

                            I N  S E N A T E

                               May 1, 2014
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed  to  the  Committee  on  Health  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

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:

  Section 1. Legislative findings. Under New York's former do not resus-
citate (hereinafter "DNR") law, article 29-B of the public health law, a
surrogate  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  was  "medically  futile," which was defined to mean
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 disabled patients.
  In 2010, the former DNR law was superseded by the Family  Health  Care
Decisions  Act (hereinafter "FHCDA") which established standards for the
withdrawal or withholding of a broad  range  of  life-sustaining  treat-
ments.  Accordingly,  the  FHCDA  did  not  have a standard specifically
relating to medically futile resuscitation. Similarly, Surrogate's Court
Procedure Act (hereinafter "SPCA") S1750-b  does  not  have  a  standard
specifically  relating  to  medically  futile resuscitation for develop-
mentally disabled patients.
  The legislature finds that the broader FHCDA and SPCA  S1750-b  stand-
ards  are  difficult to apply to situations in which resuscitation would
be medically futile. Accordingly, this  bill  restores  the  former  DNR
law's  medical  futility  standard as an alternative basis for writing a
DNR order under the FHCDA and under SCPA S1750-b.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13627-05-4

S. 7156--A                          2

  S 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision  5  of
section  2994-d  of  the public health law, as added by chapter 8 of the
laws of 2010, are amended and a new subparagraph (iii) is added to  read
as follows:
  (i)  Treatment  would be an extraordinary burden to the patient and an
attending physician determines,  with  the  independent  concurrence  of
another physician, that, to a reasonable degree of medical certainty and
in  accord  with  accepted  medical  standards,  (A)  the patient has an
illness or injury which can  be  expected  to  cause  death  within  six
months,  whether  or  not  treatment  is provided; or (B) the patient is
permanently unconscious; [or]
  (ii) The provision of treatment would involve such pain, suffering  or
other  burden  that  it  would reasonably be deemed inhumane or extraor-
dinarily burdensome under the circumstances and the patient has an irre-
versible or incurable condition, as determined by an attending physician
with the independent concurrence of another physician  to  a  reasonable
degree  of  medical certainty and in accord with accepted medical stand-
ards[.]; OR
  (III) WITH RESPECT TO A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
AN ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCURRENCE OF A
SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY,  THAT  IN
THE  EVENT  OF  A  CARDIAC OR RESPIRATORY ARREST, 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.
  S 3. Paragraph (b) of subdivision 5 of section 2994-g  of  the  public
health  law,  as  added  by chapter 8 of the laws of 2010, is amended to
read as follows:
  (b) If the attending physician,  with  independent  concurrence  of  a
second  physician designated by the hospital, determines to a reasonable
degree of medical certainty that:
  (i) (A) life-sustaining treatment offers the patient no medical  bene-
fit  because  the  patient will die imminently, even if the treatment is
provided; and
  [(ii)] (B) the provision of life-sustaining  treatment  would  violate
accepted  medical  standards,  then  such  treatment may be withdrawn or
withheld from an adult patient who has been  determined  to  lack  deci-
sion-making  capacity  pursuant  to  section twenty-nine hundred ninety-
four-c of this article, without judicial approval. This paragraph  shall
not apply to any treatment necessary to alleviate pain or discomfort; OR
  (II) IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST, 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, THEN AN ORDER NOT TO RESUSCITATE MAY BE ENTERED FOR
AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACI-
TY  PURSUANT  TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF THIS ARTI-
CLE, WITHOUT JUDICIAL APPROVAL.
  S 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision  4  of
section 1750-b of the surrogate's court procedure act, as added by chap-
ter 500 of the laws of 2002, are amended to read as follows:
  (i) the mentally retarded person has a medical condition as follows:
  A.  a  terminal  condition, [as defined in subdivision twenty-three of
section twenty-nine hundred sixty-one of the public  health  law]  WHICH
SHALL  MEAN  AN  ILLNESS  OR INJURY FROM WHICH THERE IS NO RECOVERY, AND
WHICH CAN REASONABLY BE EXPECTED TO CAUSE DEATH WITHIN ONE YEAR; or
  B. permanent unconsciousness; or

S. 7156--A                          3

  C. a medical condition other than  such  person's  mental  retardation
which requires life-sustaining treatment, is irreversible and which will
continue indefinitely; [and] OR
  D.  IN  THE  CASE  OF A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
THAT IN THE EVENT OF CARDIAC OR RESPIRATORY  ARREST  SUCH  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; AND
  (ii)  EXCEPT IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUS-
CITATE BASED ON CLAUSE D OF SUBPARAGRAPH  (I)  OF  THIS  PARAGRAPH,  the
life-sustaining  treatment  would impose an extraordinary burden on such
person, in light of:
  A. such person's medical condition, other than  such  person's  mental
retardation; and
  B.  the  expected  outcome  of the life-sustaining treatment, notwith-
standing such person's mental retardation; and
  S 5. Subdivision 4 of section 1750-b of the surrogate's  court  proce-
dure act is amended by adding new paragraph (f) to read as follows:
  (F)  IN  THE  CASE  OF  A PERSON FOR WHOM "GUARDIAN" MEANS A SURROGATE
DECISION-MAKING COMMITTEE PURSUANT TO THIS  SECTION,  AN  ORDER  NOT  TO
RESUSCITATE  MAY  BE ENTERED, WITHOUT REVIEW OR APPROVAL BY SUCH COMMIT-
TEE, IF THE ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCUR-
RENCE OF A SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL  CERTAIN-
TY,  THAT  IN THE EVENT OF A CARDIAC OR RESPIRATORY ARREST 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.
  S 6. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.