senate Bill S7157

2013-2014 Legislative Session

Relates to health care decisions for persons with developmental disabilities

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

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May 01, 2014 referred to judiciary

S7157 - Bill Details

See Assembly Version of this Bill:
A9549
Current Committee:
Law Section:
Surrogate's Court Procedure Act
Laws Affected:
Amd §1750-b, SCPA

S7157 - Bill Texts

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Relates to health care decisions for persons with developmental disabilities.

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BILL NUMBER:S7157

TITLE OF BILL: An act to amend the surrogate's court procedure act,
in relation to making technical and coordinating amendments and other
improvements regarding health care decisions for persons with
developmental disabilities

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 NYS laws that govern health care decisions,
including life-sustaining treatment decisions, for patients who lack
decision-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
Disabled Persons

This bill, SDMIA 7, makes amendments Surrogate's Court Procedure Act
section 1750-b, relating to life-sustaining treatment decisions for
developmentally disabled persons.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends the title and subdivisions 1 - 4 of SCPA § 1750-b:

*to rename the section as "Health care decisions for persons with
developmental disabilities;"

*to provide that the term "developmental disability" will have the
meaning set forth in MHL § 1.03(22).

*to change "mentally retarded person" to "person with a developmental
disability" throughout;

*to add intubation and mechanical ventilation to the examples of
"life-sustaining treatments" (§ 1750- b.1);

*to change "commission on quality of care and advocacy for persons
with disabilities" to "justice center for the protection of persons
with special needs." (§ 1750-b.1(a));


*to provide that a developmentally disabled person who is determined
to have decisional capacity can make his or her own decisions relating
to life-sustaining treatment (§ 1750-b.1(d));

*to provide that a developmentally disabled person who has a valid
health care proxy shall have all such decisions made in accordance
with the health care proxy law (§ 1750-b.1(e));

*to replace the term "artificially provided nutrition and hydration"
with "nutrition and hydration provided by means of medical treatment."
(§ 1750-B.2(b)(iv));

*to add a definition of "terminal condition" (§ 1750-b.4(b)(i)(A));

*to replace OMRDD with OPWDD throughout, and commissioner of mental
retardation and developmental disabilities with commissioner of
developmental disabilities throughout (e.g., § 1750- b.4(e)(i)(C));

*to restore a prior DNR law standards by providing that notification
of the facility director (and now MHLS) shall not delay the issuance
of a DNR order (§ 1750-b.4(e)(ii));

*to make the review of DNR orders for persons residing in OPWDD
operated or licensed facilities subject to the standards in PHL
2994-dd. (§ 1750-b.4(f));

*to require that, in cases where an attending physician notifies a
facility director or MHLS of a DNR order and provides support for the
DNR order, then the order will not be stayed by an objection by the
facility director or MHLS unless the objection is accompanied by a
basis for objecting to the DNR order, including clinical support for a
clinical objection. (§ 1750-b.5(a)) to replace a reference to the
dispute mediation committee with a reference to the ethics review
committee under the FHCDA. (§ 1750-b.5(d)).

Section 2 is the effective date.

JUSTIFICATION:

This bill draws upon growing experience with SCPA § 1750-b, the Health
Care Decisions Act for Mentally Retarded Persons, and its interaction
with the Family Health Care Decisions Act and other health care
decision-making laws. It makes technical and coordinating amendments,
as well as some important substantive improvements, to SCPA § 1750-b.

The amendment to § 1750-b.5(a) would affect the authority of Mental
Hygiene Legal Service (MHLS), to compel the suspension of a DNR order,
which it acquired in 2010. Specifically it would limit such authority
to those cases in which MHLS has a specific, stated basis for
objecting to the DNR order. It would similarly limit the authority of
a mental hygiene facility director.

As background, under the former DNR Law (PHL Art. 29-B) if a patient
was in or had been transferred from a mental hygiene facility, notice
of a DNR order had to be given to the facility director, but not to
MHLS, prior to entry of the order. It also required that the DNR order
be suspended if the facility director objected, but gave no such


authority to MHLS. However, as a result of Ch. 8, L.2010, SCPA§ 1750-b
became applicable to DNR decisions for developmentally disabled
patients. SCPA § § 1750-b.4(d) requires prior notice of decisions to
withhold life-sustaining treatment, including consent to DNR orders,
to MHLS as well as the facility director and others, and give such
parties the power to suspend the order by objecting. In effect, when
SCPA § 1750-b became applicable to DNR orders, MHLS acquired the
authority to routinely suspend a DNR order while it reviews the case.

This provision would retain the new requirement of notice of DNR
orders to MHLS (as well as the longstanding requirement of notice to
the facility director). But it would constrain their authority to
suspend such orders routinely: it would provide that a facility
director or MHLS's objection to a DNR will not trigger a suspension of
the order unless the facility director or MHLS provides a basis for
its objection, including clinical support for a clinical objection.

This approach would restore the intended limited role for MHLS -- as
an agency that will intervene when it detects evidence of an improper
decision, as opposed to acting as a co-equal DNR decision-maker or as
a DNR approval agency.

This bill is part of a series of bills, informally referred to the
Surrogate Decision-Making Improvement Acts. Other SDMIAs amend SCPA
1750-b, among other laws, with respect to the determination of
incapacity and the medical criteria for DNR orders.

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 ninety days after the date on which this
act shall have become a law.

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

                                  7157

                            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 Judiciary

AN ACT to amend the surrogate's court  procedure  act,  in  relation  to
  making  technical  and  coordinating amendments and other improvements
  regarding health care decisions for persons with  developmental  disa-
  bilities

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

  Section 1. Section 1750-b of the surrogate's court procedure  act,  as
added  by  chapter  500 of the laws of 2002, subdivision 1 as amended by
chapter 105 of the laws of 2007, the opening paragraph,  paragraphs  (a)
and  (b)  of subdivision 1 and the opening paragraph of subdivision 4 as
amended by chapter 8 of the laws of 2010, subparagraph (i) of  paragraph
(a)  and  clause A of subparagraph (i) of paragraph (e) of subdivision 4
as amended by section 18 of part J of chapter 56 of the  laws  of  2012,
and  paragraph  (d) of subdivision 5 as added by chapter 262 of the laws
of 2008, is amended to read as follows:
S 1750-b. Health care decisions for [mentally retarded persons]  PERSONS
            WITH DEVELOPMENTAL DISABILITIES
  1.  Scope  of  authority. AS USED IN THIS SECTION, THE TERMS "DEVELOP-
MENTAL DISABILITY" AND "DEVELOPMENTALLY DISABLED" SHALL HAVE THE MEANING
SET FORTH IN SUBDIVISION  TWENTY-TWO  OF  SECTION  1.03  OF  THE  MENTAL
HYGIENE LAW. Unless specifically prohibited by the court after consider-
ation  of  the  determination,  if  any,  regarding a [mentally retarded
person's] PERSON WITH A  DEVELOPMENTAL  DISABILITY'S  capacity  to  make
health  care  decisions,  which is required by section seventeen hundred
fifty of this article, the guardian of such person appointed pursuant to
section seventeen hundred fifty of this article shall have the authority
to make any and all health care decisions, as defined by subdivision six
of section twenty-nine hundred eighty  of  the  public  health  law,  on
behalf  of  the  [mentally  retarded person] PERSON WITH A DEVELOPMENTAL
DISABILITY that such person could make if such person had capacity. Such
decisions may include decisions to withhold or withdraw  life-sustaining
treatment.  For  purposes  of  this section, "life-sustaining treatment"

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13652-03-4

S. 7157                             2

means medical treatment, including cardiopulmonary resuscitation , INTU-
BATION  AND/OR  MECHANICAL  VENTILATION  and  nutrition  and   hydration
provided  by means of medical treatment, which is OR WOULD BE sustaining
life  functions and without which, according to reasonable medical judg-
ment, the patient will  die  within  a  relatively  short  time  period.
Cardiopulmonary  resuscitation  is presumed to be life-sustaining treat-
ment without the necessity of a medical judgment by an attending  physi-
cian.  The  provisions  of  this  article  are not intended to permit or
promote suicide, assisted suicide or euthanasia; accordingly, nothing in
this section shall be construed to permit a guardian to consent  to  any
act  or omission to which the [mentally retarded] person WITH A DEVELOP-
MENTAL DISABILITY could not consent if such person had capacity.
  (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] AN impairment of general
intellectual 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
regulations established by the commissioner of [mental retardation  and]
developmental  disabilities. Such family members must have a significant
and ongoing involvement in a person's life  so  as  to  have  sufficient
knowledge  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 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 guardians appointed pursuant to
this article or have no qualified family members to make  such  a  deci-
sion,  then  a "guardian" shall also mean the Willowbrook consumer advi-
sory board. A decision of such family member or the Willowbrook consumer
advisory board to withhold or withdraw life-sustaining  treatment  shall
be  subject  to  all of the protections, procedures and safeguards which
apply to the decision of a guardian to withhold  or  withdraw  life-sus-
taining 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 Willowbrook consumer advisory board available to make such  a  deci-
sion,  a  "guardian" shall also mean, notwithstanding the definitions in
section 80.03 of the mental hygiene  law,  a  surrogate  decision-making
committee,  as  defined in article eighty of the mental hygiene law. All
declarations 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] JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS, AS
ESTABLISHED BY ARTICLE TWENTY OF THE EXECUTIVE LAW.
  (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 disabili-
ties in conjunction  with  parents,  advocates  and  family  members  of

S. 7157                             3

persons  [who  are  mentally  retarded] WITH DEVELOPMENTAL DISABILITIES.
Regulations to implement the authority of the Willowbrook consumer advi-
sory board pursuant to paragraph (a) of this subdivision may be  promul-
gated  by  the  commissioner  of  the office of [mental retardation and]
developmental disabilities with advice  from  the  Willowbrook  consumer
advisory board.
  (c)  Notwithstanding  any provision of law to the contrary, the formal
determinations required pursuant to section seventeen hundred  fifty  of
this article shall only apply to guardians appointed pursuant to section
seventeen hundred fifty or seventeen hundred fifty-a of this article.
  (D)  A  PATIENT  SUBJECT TO THIS SECTION WHO IS FOUND BY THE ATTENDING
PHYSICIAN TO HAVE CAPACITY TO MAKE HIS OR HER OWN HEALTH CARE DECISIONS,
PURSUANT TO PARAGRAPH (A) OF SUBDIVISION  FOUR  OF  THIS  SECTION,  UPON
NOTICE  TO  THE  CHIEF EXECUTIVE OFFICER OF A RESIDENTIAL FACILITY OPER-
ATED, LICENSED OR AUTHORIZED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES, IN WHICH FACILITY THE PATIENT RESIDES OR FROM WHICH HE  OR
SHE  WAS TRANSFERRED, AND THE MENTAL HYGIENE LEGAL SERVICE, MAY MAKE HIS
OR HER OWN DECISIONS RELATING TO LIFE-SUSTAINING TREATMENT.
  (E) A PATIENT SUBJECT TO THIS SECTION WHO  HAS  A  VALID  HEALTH  CARE
PROXY  AT  THE  TIME  OF  A  HEALTH  CARE DECISION, INCLUDING A DECISION
INVOLVING LIFE-SUSTAINING TREATMENT, SHALL HAVE SUCH DECISIONS  MADE  IN
ACCORDANCE  WITH  ARTICLE TWENTY-NINE-C OF THE PUBLIC HEALTH LAW. IF FOR
ANY REASON THE AGENT OR AN ALTERNATE AGENT IS NOT REASONABLY  AVAILABLE,
WILLING  AND COMPETENT TO SERVE AND THE PATIENT IS OTHERWISE ELIGIBLE TO
HAVE A DECISION AS TO LIFE-SUSTAINING TREATMENT MADE  PURSUANT  TO  THIS
SECTION,  ANY  GUARDIAN  OR  PERSON  OR  ENTITY ENTITLED TO EXERCISE THE
AUTHORITY OF A GUARDIAN UNDER PARAGRAPH (A) OF THIS SUBDIVISION MAY MAKE
SUCH DECISION.
  2. Decision-making standard. (a) The guardian shall base all  advocacy
and  health  care  decision-making  solely  and  exclusively on the best
interests of the [mentally retarded] person WITH A  DEVELOPMENTAL  DISA-
BILITY and, when reasonably known or ascertainable with reasonable dili-
gence,  on [the mentally retarded] SUCH person's wishes, including moral
and religious beliefs.
  (b) An assessment of the [mentally retarded person's]  PERSON  WITH  A
DEVELOPMENTAL  DISABILITY'S  best  interests shall include consideration
of:
  (i) the dignity and uniqueness of every person;
  (ii) the preservation, improvement or  restoration  of  the  [mentally
retarded] person's health;
  (iii)  the  relief  of  the  [mentally retarded] person's suffering by
means of palliative care and pain management;
  (iv)  the  unique  nature  of  [artificially  provided]  nutrition  or
hydration  PROVIDED BY MEANS OF MEDICAL TREATMENT, and the effect it may
have on the [mentally retarded] person; and
  (v) the entire medical condition of the person.
  (c) No health care decision shall be influenced in any way by:
  (i) a presumption that persons with [mental retardation] DEVELOPMENTAL
DISABILITIES are not entitled  to  the  full  and  equal  rights,  equal
protection,  respect, medical care and dignity afforded to persons with-
out [mental retardation or] developmental disabilities; or
  (ii) financial considerations of the guardian, as such  considerations
affect the guardian, a health care provider or any other party.
  3. Right to receive information. Subject to the provisions of sections
33.13  and  33.16 of the mental hygiene law, the guardian shall have the
right to receive  all  medical  information  and  medical  and  clinical

S. 7157                             4

records  necessary  to  make  informed decisions regarding the [mentally
retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S health care.
  4.  Life-sustaining treatment. The guardian shall have the affirmative
obligation to advocate for the full and efficacious provision of  health
care,  including life-sustaining treatment. In the event that a guardian
[makes] INITIATES a decision to  withdraw  or  withhold  life-sustaining
treatment  from  a [mentally retarded] person WITH A DEVELOPMENTAL DISA-
BILITY:
  (a) The attending physician, as defined in subdivision two of  section
twenty-nine  hundred  eighty of the public health law, must confirm to a
reasonable degree of medical  certainty  that  the  [mentally  retarded]
person  WITH  A  DEVELOPMENTAL  DISABILITY lacks capacity to make health
care decisions. The determination  thereof  shall  be  included  in  the
[mentally  retarded]  person's  medical  record,  and shall contain such
attending physician's opinion regarding the  cause  and  nature  of  the
[mentally retarded] person's incapacity as well as its extent and proba-
ble  duration.  The attending physician who makes the confirmation shall
consult with another physician, or a licensed psychologist,  to  further
confirm the [mentally retarded] person's lack of capacity. The attending
physician  who  makes  the  confirmation,  or  the physician or licensed
psychologist with whom the attending physician  consults,  must  (i)  be
employed  by  a  developmental  disabilities  [services] REGIONAL office
named in section 13.17 of the mental hygiene  law  or  employed  by  the
office  for  people with developmental disabilities to provide treatment
and care to people with developmental disabilities, or  (ii)  have  been
employed  for  a  minimum  of  two years to render care and service in a
facility or program operated, licensed or authorized by the  office  [of
mental  retardation  and] FOR PEOPLE WITH developmental disabilities, or
(iii) have been approved by the commissioner of [mental retardation and]
developmental disabilities in accordance with regulations promulgated by
such commissioner. Such regulations shall require that  a  physician  or
licensed  psychologist possess specialized training or three years expe-
rience in treating [mental retardation] PEOPLE WITH DEVELOPMENTAL  DISA-
BILITIES.    A  record  of  such  consultation  shall be included in the
[mentally retarded] person's medical record.
  (b) The attending physician, as defined in subdivision two of  section
twenty-nine  hundred  eighty  of the public health law, with the concur-
rence of another physician with  whom  such  attending  physician  shall
consult,  must determine to a reasonable degree of medical certainty and
note on the [mentally retarded person's]  PERSON  WITH  A  DEVELOPMENTAL
DISABILITY'S chart that:
  (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
  C. a medical condition other than such person's  [mental  retardation]
DEVELOPMENTAL  DISABILITY  which  requires life-sustaining treatment, is
irreversible and which will continue indefinitely; and
  (ii) 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] DEVELOPMENTAL DISABILITY; and

S. 7157                             5

  B. the expected outcome of  the  life-sustaining  treatment,  notwith-
standing  such  person's  [mental retardation] DEVELOPMENTAL DISABILITY;
and
  (iii)  in  the case of a decision to withdraw or withhold artificially
provided nutrition or hydration:
  A. there is no reasonable hope of maintaining life; or
  B. the artificially provided nutrition or hydration poses an  extraor-
dinary burden.
  (c)  The  guardian  shall  express  a decision to withhold or withdraw
life-sustaining treatment either:
  (i) in writing, dated and signed in the presence of one witness  eigh-
teen years of age or older who shall sign the decision, and presented to
the  attending physician, as defined in subdivision two of section twen-
ty-nine hundred eighty of the public health law; or
  (ii) orally, to two persons eighteen years of age or older,  at  least
one  of  whom is the [mentally retarded person's] PERSON WITH A DEVELOP-
MENTAL DISABILITY'S attending physician, as defined in  subdivision  two
of section twenty-nine hundred eighty of the public health law.
  (d)  The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health  law,  who  is  provided
with  the  decision  of  a  guardian  shall  include the decision in the
[mentally retarded person's] PERSON WITH  A  DEVELOPMENTAL  DISABILITY'S
medical chart, and shall either:
  (i)  promptly  issue  an order to withhold or withdraw life-sustaining
treatment from the [mentally retarded]  person,  and  inform  the  staff
responsible for such person's care, if any, of the order; or
  (ii)  promptly object to such decision, in accordance with subdivision
five of this section.
  (e) At least forty-eight hours prior to the implementation of a  deci-
sion  to withdraw life-sustaining treatment, or at the earliest possible
time prior to the implementation of a decision to withhold life-sustain-
ing treatment, the attending physician shall notify:
  (i) the [mentally retarded] person WITH  A  DEVELOPMENTAL  DISABILITY,
except  if the attending physician determines, in writing and in consul-
tation with another physician or a licensed  psychologist,  that,  to  a
reasonable  degree of medical certainty, the person would suffer immedi-
ate and severe injury from such notification.  The  attending  physician
who  makes  the  confirmation, or the physician or licensed psychologist
with whom the attending physician consults, shall:
  A. be employed by a developmental disabilities services  office  named
in section 13.17 of the mental hygiene law or employed by the office for
people  with developmental disabilities to provide treatment and care to
people with developmental disabilities, or
  B. have been employed for a minimum of two years to  render  care  and
service in a facility operated, licensed or authorized by the office [of
mental retardation and] FOR PEOPLE WITH developmental disabilities, or
  C.  have been approved by the commissioner of [mental retardation and]
developmental disabilities in accordance with regulations promulgated by
such commissioner. Such regulations shall require that  a  physician  or
licensed  psychologist possess specialized training or three years expe-
rience in treating mental retardation. A  record  of  such  consultation
shall be included in the [mentally retarded] person's medical record;
  (ii) if the person is in or was transferred from a residential facili-
ty operated, licensed or authorized by the office [of mental retardation
and]  FOR  PEOPLE  WITH  developmental disabilities, the chief executive
officer of the agency or organization operating such  facility  and  the

S. 7157                             6

mental  hygiene legal service. NOTIFICATION TO THE FACILITY DIRECTOR AND
THE MENTAL HYGIENE LEGAL SERVICE SHALL NOT DELAY ISSUANCE  OF  AN  ORDER
NOT TO RESUSCITATE; and
  (iii)  if  the  person  is  not in and was not transferred from such a
facility or program, the commissioner of [mental retardation and] devel-
opmental disabilities, or his or her designee.
  (F) FOR A PATIENT RESIDING IN A FACILITY OPERATED, LICENSED OR AUTHOR-
IZED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES AS TO WHOM
AN ORDER NOT TO RESUSCITATE HAS BEEN ENTERED,  THE  ATTENDING  PHYSICIAN
SHALL REVIEW WHETHER THE ORDER IS STILL APPROPRIATE AT SUCH TIMES AND IN
SUCH  MANNER AS IS PRESCRIBED BY SUBDIVISION FOUR OF SECTION TWENTY-NINE
HUNDRED NINETY-FOUR-DD OF THE PUBLIC HEALTH LAW.
  5. Objection to health care decision. (a) Suspension.  A  health  care
decision  made  pursuant  to  subdivision  four of this section shall be
suspended, pending judicial review, except if the  suspension  would  in
reasonable  medical  judgment  be  likely  to result in the death of the
[mentally retarded] person WITH A DEVELOPMENTAL DISABILITY, in the event
of an objection to that decision at any time by:
  (i) the [mentally retarded] person on whose behalf such  decision  was
made; or
  (ii)  a  parent  or adult sibling who either resides with or has main-
tained substantial and continuous contact with the  [mentally  retarded]
person; or
  (iii)  the  attending  physician,  as  defined  in  subdivision two of
section twenty-nine hundred eighty of the public health law; or
  (iv) any other health care  practitioner  providing  services  to  the
[mentally  retarded]  person,  who  is  licensed pursuant to article one
hundred thirty-one, one hundred thirty-one-B,  one  hundred  thirty-two,
one  hundred  thirty-three,  one hundred thirty-six, one hundred thirty-
nine, one  hundred  forty-one,  one  hundred  forty-three,  one  hundred
forty-four, one hundred fifty-three, one hundred fifty-four, one hundred
fifty-six,  one  hundred  fifty-nine  or  one  hundred sixty-four of the
education law; or
  (v) the chief executive officer identified  in  subparagraph  (ii)  of
paragraph (e) of subdivision four of this section; or
  (vi) if the person is in or was transferred from a residential facili-
ty  or  program  operated, approved or licensed by the office [of mental
retardation and] FOR PEOPLE WITH developmental disabilities, the  mental
hygiene legal service; or
  (vii)  if  the  person  is  not in and was not transferred from such a
facility or program, the commissioner of [mental retardation and] devel-
opmental disabilities, or his or her designee.
  NOTWITHSTANDING THE FOREGOING, IN CASES WHERE THE ATTENDING  PHYSICIAN
HAS  NOTIFIED  THE  CHIEF  EXECUTIVE OFFICER OF AN AGENCY AND THE MENTAL
HYGIENE LEGAL SERVICE OF THE ENTRY OF AN ORDER NOT TO RESUSCITATE PURSU-
ANT TO SUBPARAGRAPH (II) OF PARAGRAPH (E) OF SUBDIVISION  FOUR  OF  THIS
SECTION, AND IF SUCH NOTICE INCLUDES EITHER THE PHYSICIAN'S STATEMENT OF
THE  DIAGNOSTIC  AND  PROGNOSTIC  BASIS FOR THE MEDICAL DETERMINATION IN
SUPPORT OF THE ORDER OR AN EXCERPT FROM  THE  PATIENT'S  MEDICAL  RECORD
THAT IS SUFFICIENT TO SUPPORT SUCH DETERMINATION, AN ORDER NOT TO RESUS-
CITATE  SHALL  NOT BE STAYED BY AN OBJECTION BY THE PERSONS DESCRIBED IN
SUBPARAGRAPH (V) OR (VI) OF  THIS  PARAGRAPH  UNLESS  THE  OBJECTION  IS
ACCOMPANIED  BY  (A)  A WRITTEN STATEMENT BY THE OBJECTING PARTY SETTING
FORTH A BASIS FOR ASSERTING THAT A STANDARD IN THIS ARTICLE FOR ENTERING
SUCH AN ORDER HAS NOT BEEN MET; AND (B) IF  THE  BASIS  RELATES  TO  THE
FAILURE TO MEET MEDICAL CRITERIA IN THIS ARTICLE FOR THE ISSUANCE OF THE

S. 7157                             7

ORDER,  A WRITTEN STATEMENT BY A HEALTH OR SOCIAL SERVICES PRACTITIONER,
AS DEFINED IN SUBDIVISION SEVENTEEN OF SECTION TWENTY-NINE HUNDRED NINE-
TY-FOUR-A OF THE PUBLIC HEALTH  LAW  SETTING  FORTH  THE  PROFESSIONAL'S
OPINION,  BASED  ON HIS OR HER REVIEW OF THE AFOREMENTIONED STATEMENT OR
MEDICAL RECORD EXCERPT AND CONSULTATION  WITH  THE  PATIENT'S  ATTENDING
PHYSICIAN,  THAT  THE MEDICAL CRITERIA IN THIS ARTICLE FOR ENTERING SUCH
ORDER HAS NOT BEEN MET.
  (b) Form of objection. Such objection shall occur orally or  in  writ-
ing.
  (c)  Notification.  In  the  event  of the suspension of a health care
decision pursuant to this subdivision, the objecting party shall prompt-
ly notify the guardian and the other parties identified in paragraph (a)
of this subdivision, and  the  attending  physician  shall  record  such
suspension  in  the  [mentally retarded person's] PERSON WITH A DEVELOP-
MENTAL DISABILITY'S medical chart.
  (d) Dispute mediation. In the event of an objection pursuant  to  this
subdivision,  at  the request of the objecting party or person or entity
authorized to act as a guardian under this section, except  a  surrogate
decision  making committee established pursuant to article eighty of the
mental hygiene law, such objection shall be referred to [a dispute medi-
ation system, established pursuant to section two thousand nine  hundred
seventy-two] AN ETHICS REVIEW COMMITTEE, ESTABLISHED PURSUANT TO SECTION
TWENTY-NINE  HUNDRED  NINETY-FOUR-M  of the public health law or similar
entity for mediating disputes in a hospice, such as  a  patient's  advo-
cate's office[,] OR hospital chaplain's office [or ethics committee], as
described  in  writing  and  adopted  by the governing authority of such
hospice, for non-binding mediation.  In  the  event  that  such  dispute
cannot  be resolved within seventy-two hours or no such mediation entity
exists or is reasonably  available  for  mediation  of  a  dispute,  the
objection [shall] MAY proceed to judicial review pursuant to this subdi-
vision.  The  party  requesting  mediation shall provide notification to
those parties entitled to notice  pursuant  to  paragraph  (a)  of  this
subdivision.
  6.  Special  proceeding authorized. The guardian, the attending physi-
cian, as defined in  subdivision  two  of  section  twenty-nine  hundred
eighty  of the public health law, the chief executive officer identified
in subparagraph (ii) of  paragraph  (e)  of  subdivision  four  of  this
section,  the  mental  hygiene legal service (if the person is in or was
transferred from a residential facility or program operated, approved or
licensed by the office [of  mental  retardation  and]  FOR  PEOPLE  WITH
developmental  disabilities)  or the commissioner of [mental retardation
and] developmental disabilities or his or her designee (if the person is
not in and was not transferred from such  a  facility  or  program)  may
commence  a special proceeding in a court of competent jurisdiction with
respect to any dispute arising under this section,  including  objecting
to  the  withdrawal  or withholding of life-sustaining treatment because
such withdrawal or withholding is not in accord with  the  criteria  set
forth in this section.
  7.  Provider's  obligations.  (a)  A health care provider shall comply
with the health care decisions made by a guardian in good faith pursuant
to this section, to the same extent as if such decisions had  been  made
by  the  [mentally  retarded] person WITH A DEVELOPMENTAL DISABILITY, if
such person had capacity.
  (b) Notwithstanding paragraph (a) of this subdivision, nothing in this
section shall be construed to require a  private  hospital  to  honor  a
guardian's health care decision that the hospital would not honor if the

S. 7157                             8

decision had been made by the [mentally retarded] person WITH A DEVELOP-
MENTAL  DISABILITY, if such person had capacity, because the decision is
contrary to a formally adopted written policy of the hospital  expressly
based  on  religious beliefs or sincerely held moral convictions central
to the hospital's  operating  principles,  and  the  hospital  would  be
permitted by law to refuse to honor the decision if made by such person,
provided:
  (i)  the hospital has informed the guardian of such policy prior to or
upon admission, if reasonably possible; and
  (ii) the [mentally retarded] person is transferred promptly to another
hospital that is reasonably accessible under the  circumstances  and  is
willing  to  honor the guardian's decision. If the guardian is unable or
unwilling to arrange such a transfer, the hospital's  refusal  to  honor
the  decision  of the guardian shall constitute an objection pursuant to
subdivision five of this section.
  (c) Notwithstanding paragraph (a) of this subdivision, nothing in this
section shall be construed to require an individual health care provider
to honor a guardian's health care decision that the individual would not
honor if the decision had been made by the  [mentally  retarded]  person
WITH  A  DEVELOPMENTAL  DISABILITY, if such person had capacity, because
the decision is  contrary  to  the  individual's  religious  beliefs  or
sincerely  held  moral  convictions, provided the individual health care
provider promptly informs the guardian and the facility, if any, of  his
or  her  refusal  to  honor  the guardian's decision. In such event, the
facility  shall  promptly  transfer  responsibility  for  the  [mentally
retarded]  person  to another individual health care provider willing to
honor the guardian's decision. The individual health care provider shall
cooperate in facilitating such transfer of the patient.
  (d) Notwithstanding the provisions of  any  other  paragraph  of  this
subdivision,  if  a  guardian  directs  the provision of life-sustaining
treatment, the denial of which in reasonable medical judgment  would  be
likely  to  result in the death of the [mentally retarded] person WITH A
DEVELOPMENTAL DISABILITY, a hospital or individual health care  provider
that  does  not  wish to provide such treatment shall nonetheless comply
with the guardian's decision pending either transfer  of  the  [mentally
retarded] person to a willing hospital or individual health care provid-
er, or judicial review.
  (e)  Nothing in this section shall affect or diminish the authority of
a surrogate decision-making panel to render  decisions  regarding  major
medical treatment pursuant to article eighty of the mental hygiene law.
  8. Immunity. (a) Provider immunity. No health care provider or employ-
ee  thereof  shall  be  subjected  to criminal or civil liability, or be
deemed to have engaged in unprofessional conduct, for  honoring  reason-
ably  and  in  good  faith  a health care decision by a guardian, or for
other actions taken reasonably  and  in  good  faith  pursuant  to  this
section.
  (b)  Guardian  immunity. No guardian shall be subjected to criminal or
civil liability for making a health care decision reasonably and in good
faith pursuant to this section.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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