The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4685
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 8, 2021
                                ___________
 
 Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN ACT to amend the public health law and the surrogate's  court  proce-
   dure  act,  in  relation  to restoring medical futility as a basis for
   both surrogate consent to a do not resuscitate order and for a do  not
   resuscitate order for a patient without a surrogate
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   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   In  2010,  the former DNR law was superseded by the Family Health Care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")  §1750-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 §1750-b stand-
 ards are difficult to apply to situations in which  resuscitation  would
 be  medically  futile.  Accordingly,  this  bill restores the former DNR

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00126-01-1

 S. 4685                             2
 
 law's medical futility standard as an alternative basis  for  writing  a
 DNR order under the FHCDA and under SCPA §1750-b.
   §  2.  Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
 section 2994-d of the public health law, as amended by  chapter  708  of
 the  laws  of 2019, 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  practitioner  determines, with the independent concurrence of
 another physician, nurse practitioner or physician assistant, 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  practi-
 tioner  with  the  independent  concurrence  of another physician, nurse
 practitioner or physician assistant to a reasonable  degree  of  medical
 certainty and in accord with accepted medical standards[.]; 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.
   §  3.  Paragraph  (b) of subdivision 5 of section 2994-g of the public
 health law, as amended by chapter 708 of the laws of 2019, is amended to
 read as follows:
   (b) If the attending practitioner, with independent concurrence  of  a
 second  physician,  nurse practitioner or physician assistant 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]
 SUBPARAGRAPH 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.
   § 4. Subparagraphs (i) and (ii) of paragraph (b) of subdivision  4  of
 section  1750-b  of  the  surrogate's court procedure act, as amended by
 chapter 198 of the laws of 2016, are amended to read as follows:
   (i) the person who is intellectually disabled has a medical  condition
 as follows:

 S. 4685                             3

   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 intellectual disabili-
 ty  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 intellec-
 tual disability; and
   B.  the  expected  outcome  of the life-sustaining treatment, notwith-
 standing such person's intellectual disability; and
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.