S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7507
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               June 2, 2023
                                ___________
 
 Introduced  by Sen. BROUK -- (at request of the Office of Mental Health)
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Rules
 
 AN ACT to amend the public health law and the surrogate's  court  proce-
   dure  act,  in relation to orders not to resuscitate for and decisions
   regarding life-sustaining treatment and hospice care;  and  to  repeal
   article  29-B,  subdivision 12 of section 2994-aa and subdivision 5 of
   section 2994-cc of such law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Article 29-B of the public health law is REPEALED.
   §  2.  Subdivision  18  of section 2994-a of the public health law, as
 amended by chapter 167 of the laws  of  2011,  is  amended  to  read  as
 follows:
   18.  "Hospital"  means  a  general  hospital, A HOSPITAL AS DEFINED IN
 SUBDIVISION TEN OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, a residential
 health care facility, or hospice.
   § 3. The opening paragraph and  paragraph  (c)  of  subdivision  3  of
 section  2994-b  of  the  public  health  law,  the opening paragraph as
 amended by chapter 479 of the laws of 2022 and paragraph (c) as  amended
 by chapter 708 of the laws of 2019, are amended to read as follows:
   Prior to seeking or relying upon a health care decision by a surrogate
 for  a  patient  under  this  article, if the attending practitioner has
 reason to believe that the patient has a history of  receiving  services
 for [a] AN INTELLECTUAL OR developmental disability; THE PATIENT IS IN A
 HOSPITAL  AS  DEFINED  IN  SUBDIVISION TEN OF SECTION 1.03 OF THE MENTAL
 HYGIENE LAW; it reasonably appears to the  attending  practitioner  that
 the  patient has [a] AN INTELLECTUAL OR developmental disability; or the
 practitioner IN A GENERAL  HOSPITAL  has  reason  to  believe  that  the
 patient  has been TEMPORARILY transferred from a mental hygiene facility
 operated or licensed by the office of mental health OR  THE  OFFICE  FOR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07353-01-3
              

 S. 7507                             2
 
 PEOPLE WITH DEVELOPMENTAL DISABILITIES, then such physician, nurse prac-
 titioner  or physician assistant shall make reasonable efforts to deter-
 mine whether [paragraphs] PARAGRAPH (a), (b) or (c) of this  subdivision
 [are] IS applicable:
   (c) If a health care decision for a patient cannot be made under para-
 graphs  (a)  or (b) of this subdivision, but consent for [the] A ROUTINE
 OR MAJOR MEDICAL TREATMENT decision may  be  provided  pursuant  to  the
 mental  hygiene law or regulations of the office of mental health or the
 office for people with developmental  disabilities,  then  the  decision
 shall  be  governed by such statute or regulations and not by this arti-
 cle.
   § 4. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 3 of
 section 2994-c of the public health law, as amended by  chapter  708  of
 the laws of 2019, are amended to read as follows:
   (ii)  In  a general hospital OR HOSPITAL AS DEFINED IN SUBDIVISION TEN
 OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, a health or  social  services
 practitioner  employed  by  or  otherwise  formally  affiliated with the
 facility must independently determine whether  an  adult  patient  lacks
 decision-making  capacity if the surrogate's decision concerns the with-
 drawal or withholding of life-sustaining treatment.
   (iii) With respect to decisions regarding hospice care for  a  patient
 in a general hospital, HOSPITAL AS DEFINED IN SUBDIVISION TEN OF SECTION
 1.03 OF THE MENTAL HYGIENE LAW, or residential health care facility, the
 health  or social services practitioner must be employed by or otherwise
 formally affiliated with the general hospital, HOSPITAL  AS  DEFINED  IN
 SUBDIVISION  TEN  OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, or residen-
 tial health care facility.
   § 5. Paragraph (c) of subdivision 4 of section 2994-c  of  the  public
 health  law,  as  added  by chapter 8 of the laws of 2010, is amended to
 read as follows:
   (c) if the patient IS IN A HOSPITAL AS DEFINED IN SUBDIVISION  TEN  OF
 SECTION  1.03 OF THE MENTAL HYGIENE LAW OR was transferred from a mental
 hygiene facility, to the director of the mental hygiene facility and  to
 the mental hygiene legal service under article forty-seven of the mental
 hygiene law.
   §  6. Subparagraph (ii) of paragraph (a) and paragraph (c) of subdivi-
 sion 5 of section 2994-d of the public health law, as amended by chapter
 708 of the laws of 2019, are amended to read as follows:
   (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 OTHER THAN MENTAL ILLNESS OR A  DEVELOP-
 MENTAL  DISABILITY,  as determined by an attending practitioner 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.
   (c) In a general hospital OR HOSPITAL AS DEFINED IN SUBDIVISION TEN OF
 SECTION 1.03 OF THE MENTAL HYGIENE LAW, if  the  attending  practitioner
 objects  to a surrogate's decision, under subparagraph (ii) of paragraph
 (a) of this subdivision, to withdraw or withhold nutrition and hydration
 provided by means of medical treatment, the decision shall not be imple-
 mented until the ethics review committee, including at least one  physi-
 cian,  nurse  practitioner  or  physician  assistant who is not directly
 responsible for the patient's care, or a court  of  competent  jurisdic-
 tion,  reviews  the  decision and determines that it meets the standards
 set forth in this subdivision and subdivision four of this section.
 S. 7507                             3
 
   § 7. Subparagraph (iii) of paragraph (b) of subdivision 5-a 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:
   (iii)  in settings other than a general hospital or residential health
 care facility, the medical  director  of  the  hospice  OR  HOSPITAL  AS
 DEFINED IN SUBDIVISION TEN OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, or
 a  physician  designated  by  the  medical  director, must independently
 determine that he or she concurs that the  recommendation  is  medically
 appropriate  and consistent with such standards for surrogate decisions;
 provided that if the medical director is the patient's attending  physi-
 cian,  a  different  physician  designated by the hospice OR HOSPITAL AS
 DEFINED IN SUBDIVISION TEN OF SECTION 1.03 OF THE  MENTAL  HYGIENE  LAW,
 must make this independent determination; and
   §  8. Paragraph (c) of subdivision 5-a of section 2994-g of the public
 health law, as separately amended by chapters 622 and 708 of the laws of
 2019, is amended to read as follows:
   (c) The ethics review committee of the general hospital,  HOSPITAL  AS
 DEFINED  IN  SUBDIVISION  TEN OF SECTION 1.03 OF THE MENTAL HYGIENE LAW,
 residential health care facility or hospice, as applicable, including at
 least one physician, nurse practitioner or physician  assistant  who  is
 not the patient's attending practitioner, or a court of competent juris-
 diction,  must  review  the decision and determine that it is consistent
 with such standards for surrogate decisions. This requirement shall  not
 apply to decisions about routine medical treatment. Such decisions shall
 be governed by subdivision three of this section.
   §  9.  Section  2994-l of the public health law, as amended by chapter
 708 of the laws of 2019, is amended to read as follows:
   § 2994-l. Interinstitutional transfers.  1. If a patient with an order
 to withhold or withdraw life-sustaining treatment is transferred from  a
 mental  hygiene facility to a hospital or from a hospital to a different
 hospital, any such order or plan shall remain effective until an attend-
 ing practitioner first examines the transferred  patient,  whereupon  an
 attending practitioner must either:
   [1.](A)  Issue appropriate orders to continue the prior order or plan.
 Such orders may be issued without obtaining another consent to  withhold
 or withdraw life-sustaining treatment pursuant to this article; or
   [2.](B)  Cancel  such  order, if the attending practitioner determines
 that the order is no longer appropriate or authorized. Before  canceling
 the  order  the  attending practitioner shall make reasonable efforts to
 notify the person who made the decision to withhold or  withdraw  treat-
 ment  and the hospital staff directly responsible for the patient's care
 of any such cancellation. If such notice cannot reasonably be made prior
 to canceling the order or plan, the attending  practitioner  shall  make
 such notice as soon as reasonably practicable after cancellation.
   2.  ORDERS  TO  WITHHOLD  OR  WITHDRAW LIFE-SUSTAINING TREATMENT SHALL
 REMAIN EFFECTIVE AND NO AFFIRMATIVE ACTION BY A GENERAL  HOSPITAL  SHALL
 BE  REQUIRED  PURSUANT  TO  THIS  SECTION WHERE A PATIENT IS TRANSFERRED
 WITHIN A GENERAL HOSPITAL BETWEEN A MEDICAL UNIT AND A WARD, WING,  UNIT
 OR  OTHER PART OF THE GENERAL HOSPITAL WHICH IS OPERATED FOR THE PURPOSE
 OF PROVIDING SERVICES FOR PERSONS WITH MENTAL  ILLNESS  PURSUANT  TO  AN
 OPERATING CERTIFICATE ISSUED BY THE COMMISSIONER OF MENTAL HEALTH.
   §  10.  Paragraph (a) of subdivision 4 of section 2994-m of the public
 health law, as amended by chapter 708 of the laws of 2019, is amended to
 read as follows:
   (a) These procedures are required only when:  (i)  the  ethics  review
 committee is convened to review a decision by a surrogate to withhold or
 S. 7507                             4
 
 withdraw  life-sustaining  treatment for: (A) a patient in a residential
 health care facility pursuant to paragraph (b) of  subdivision  five  of
 section twenty-nine hundred ninety-four-d of this article; (B) a patient
 in  a  general  hospital  OR  HOSPITAL  AS DEFINED IN SUBDIVISION TEN OF
 SECTION 1.03 OF THE MENTAL HYGIENE LAW, pursuant  to  paragraph  (c)  of
 subdivision  five  of  section twenty-nine hundred ninety-four-d of this
 article; or (C) an emancipated minor  patient  pursuant  to  subdivision
 three  of  section twenty-nine hundred ninety-four-e of this article; or
 (ii) when a person connected with the case requests  the  ethics  review
 committee  to  provide  assistance in resolving a dispute about proposed
 care. Nothing in this section shall bar health care providers from first
 striving to resolve disputes through less formal  means,  including  the
 informal solicitation of ethical advice from any source.
   §  11.  Paragraph (c) of subdivision 4 of section 2994-m of the public
 health law, as amended by chapter 708 of the laws of 2019, is amended to
 read as follows:
   (c) When an ethics review committee is convened  to  review  decisions
 regarding  hospice care for a patient in a general hospital, HOSPITAL AS
 DEFINED IN SUBDIVISION TEN OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, or
 residential health care facility, the responsibilities of  this  section
 shall  be  carried  out  by  the  ethics review committee of the general
 hospital, HOSPITAL AS DEFINED IN SUBDIVISION TEN OF SECTION 1.03 OF  THE
 MENTAL  HYGIENE  LAW, or residential health care facility, provided that
 such committee shall invite a representative  from  hospice  to  partic-
 ipate.
   §  12.  Subdivision  12 of section 2994-aa of the public health law is
 REPEALED and subdivisions 13 and 13-a are renumbered subdivisions 12 and
 13.
   § 13. Subdivision 5 of section 2994-cc of the  public  health  law  is
 REPEALED.
   §  14. Section 2994-ff of the public health law, as added by chapter 8
 of the laws of 2010, is amended to read as follows:
   § 2994-ff. Interinstitutional transfer. If a patient with a  nonhospi-
 tal  order not to resuscitate is admitted to a hospital, the order shall
 be treated as an order not to resuscitate for a patient transferred from
 another hospital, and shall be governed  by  article  twenty-nine-CC  of
 this  chapter[,  except  that any such order for a patient admitted to a
 mental hygiene facility shall be governed by  article  twenty-nine-B  of
 this chapter].
   §  15.  Subparagraph  (i) 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, is amended as follows:
   (i) the person who is intellectually disabled 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
 FOR  THE  PURPOSE  OF THIS SECTION MEANS AN ILLNESS OR INJURY FROM WHICH
 THERE IS NO RECOVERY, AND WHICH REASONABLY  CAN  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
   § 16. Paragraph (d) of subdivision 5 of section 1750-b of  the  surro-
 gate's  court  procedure  act,  as amended by chapter 198 of the laws of
 2016, is amended as follows:
 S. 7507                             5
 
   (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]  ETHICS REVIEW COMMITTEE, established pursuant to section
 two thousand nine hundred  [seventy-two]  NINETY-FOUR-M  of  the  public
 health  law  or similar entity for mediating disputes in a hospice, such
 as a patient's advocate's office, hospital chaplain's office  or  ethics
 committee, as described in writing and adopted by the governing authori-
 ty  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 proceed to judicial review pursuant to this subdivision.
 The party requesting  mediation  shall  provide  notification  to  those
 parties  entitled  to  notice pursuant to paragraph (a) of this subdivi-
 sion.
   § 17. This act shall take effect December 31, 2023.