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 Article 29-B of the public health law is REPEALED.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.
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§ 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.
