S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7178
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 12, 2023
                                ___________
 
 Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
   tee 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   In 2010, the former DNR law was superseded by the Family  Health  Care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.
                                                            LBD05246-01-3
 A. 7178                             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:
 A. 7178                             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.