S T A T E   O F   N E W   Y O R K
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                                  9648

                          I N  A S S E M B L Y

                              May 14, 2014
                               ___________

Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred 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  In  2010,  the former DNR law was superseded by the Family Health Care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")  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.
  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

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

                                                           LBD13627-03-4

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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

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  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.