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

                                  4796

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 17, 2015
                               ___________

Introduced  by  Sen.  HANNON -- 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  In  2010,  the former DNR law was superseded by the Family Health Care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")  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10419-01-5

              

S. 4796                             2

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
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] PERSON WITH DEVELOPMENTAL DISABILI-
TIES 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

S. 4796                             3

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] 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] DEVELOPMENTAL DISABILITY; and
  B.  the  expected  outcome  of the life-sustaining treatment, notwith-
standing such person's [mental  retardation]  DEVELOPMENTAL  DISABILITY;
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.