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:
    1    Section 1. Legislative findings. Under New York's former do not resus-
    2  citate (hereinafter "DNR") law, article 29-B of the public health law, a
    3  surrogate could consent to a DNR order if the patient  met  any  one  of
    4  four  clinical  criteria,  one  of which was a finding by two physicians
    5  that resuscitation was "medically futile," which  was  defined  to  mean
    6  that  resuscitation  "will  be  unsuccessful  in  restoring  cardiac and
    7  respiratory function or that the patient will experience repeated arrest
    8  in a short time period before death occurs." The  former  DNR  law  also
    9  allowed  a  DNR  order  to  be  entered for a patient who did not have a
   10  surrogate on that basis. That law applied  to  all  patients,  including
   11  developmentally disabled patients.
   12    In  2010,  the former DNR law was superseded by the Family Health Care
   13  Decisions Act (hereinafter "FHCDA") which established standards for  the
   14  withdrawal  or  withholding  of  a broad range of life-sustaining treat-
   15  ments. Accordingly, the FHCDA  did  not  have  a  standard  specifically
   16  relating to medically futile resuscitation. Similarly, Surrogate's Court
   17  Procedure  Act  (hereinafter  "SPCA")  S1750-b  does not have a standard
   18  specifically relating to medically  futile  resuscitation  for  develop-
   19  mentally disabled patients.
   20    The  legislature  finds that the broader FHCDA and SPCA S1750-b stand-
   21  ards are difficult to apply to situations in which  resuscitation  would
   22  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
    1  law's medical futility standard as an alternative basis  for  writing  a
    2  DNR order under the FHCDA and under SCPA S1750-b.
    3    S  2.  Subparagraphs (i) and (ii) of paragraph (a) of subdivision 5 of
    4  section 2994-d of the public health law, as added by chapter  8  of  the
    5  laws  of 2010, are amended and a new subparagraph (iii) is added to read
    6  as follows:
    7    (i) Treatment would be an extraordinary burden to the patient  and  an
    8  attending  physician  determines,  with  the  independent concurrence of
    9  another physician, that, to a reasonable degree of medical certainty and
   10  in accord with accepted  medical  standards,  (A)  the  patient  has  an
   11  illness  or  injury  which  can  be  expected  to cause death within six
   12  months, whether or not treatment is provided;  or  (B)  the  patient  is
   13  permanently unconscious; [or]
   14    (ii)  The provision of treatment would involve such pain, suffering or
   15  other burden that it would reasonably be  deemed  inhumane  or  extraor-
   16  dinarily burdensome under the circumstances and the patient has an irre-
   17  versible or incurable condition, as determined by an attending physician
   18  with  the  independent  concurrence of another physician to a reasonable
   19  degree of medical certainty and in accord with accepted  medical  stand-
   20  ards[.]; OR
   21    (III) WITH RESPECT TO A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
   22  AN ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCURRENCE OF A
   23  SECOND  PHYSICIAN,  TO A REASONABLE DEGREE OF MEDICAL CERTAINTY, THAT IN
   24  THE EVENT OF A CARDIAC OR RESPIRATORY  ARREST,  RESUSCITATION  WOULD  BE
   25  UNSUCCESSFUL  IN  RESTORING CARDIAC AND RESPIRATORY FUNCTION OR THAT THE
   26  PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT  TIME  PERIOD  BEFORE
   27  DEATH OCCURS.
   28    S  3.  Paragraph  (b) of subdivision 5 of section 2994-g of the public
   29  health law, as added by chapter 8 of the laws of  2010,  is  amended  to
   30  read as follows:
   31    (b)  If  the  attending  physician,  with independent concurrence of a
   32  second physician designated by the hospital, determines to a  reasonable
   33  degree of medical certainty that:
   34    (i)  (A) life-sustaining treatment offers the patient no medical bene-
   35  fit because the patient will die imminently, even if  the  treatment  is
   36  provided; and
   37    [(ii)]  (B)  the  provision of life-sustaining treatment would violate
   38  accepted medical standards, then such  treatment  may  be  withdrawn  or
   39  withheld  from  an  adult  patient who has been determined to lack deci-
   40  sion-making capacity pursuant to  section  twenty-nine  hundred  ninety-
   41  four-c  of this article, without judicial approval. This paragraph shall
   42  not apply to any treatment necessary to alleviate pain or discomfort; OR
   43    (II) IN THE EVENT OF CARDIAC OR RESPIRATORY ARREST, RESUSCITATION WILL
   44  BE UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY  FUNCTION  OR  THAT
   45  THE  PATIENT  WILL  EXPERIENCE  REPEATED  ARREST  IN A SHORT TIME PERIOD
   46  BEFORE DEATH OCCURS, THEN AN ORDER NOT TO RESUSCITATE MAY BE ENTERED FOR
   47  AN ADULT PATIENT WHO HAS BEEN DETERMINED TO LACK DECISION-MAKING CAPACI-
   48  TY PURSUANT TO SECTION TWENTY-NINE HUNDRED NINETY-FOUR-C OF  THIS  ARTI-
   49  CLE, WITHOUT JUDICIAL APPROVAL.
   50    S  4.  Subparagraphs (i) and (ii) of paragraph (b) of subdivision 4 of
   51  section 1750-b of the surrogate's court procedure act, as added by chap-
   52  ter 500 of the laws of 2002, are amended to read as follows:
   53    (i) the [mentally retarded person] PERSON WITH DEVELOPMENTAL DISABILI-
   54  TIES has a medical condition as follows:
   55    A. a terminal condition, [as defined in  subdivision  twenty-three  of
   56  section  twenty-nine  hundred  sixty-one of the public health law] WHICH
       S. 4796                             3
    1  SHALL MEAN AN ILLNESS OR INJURY FROM WHICH THERE  IS  NO  RECOVERY,  AND
    2  WHICH CAN REASONABLY BE EXPECTED TO CAUSE DEATH WITHIN ONE YEAR; or
    3    B. permanent unconsciousness; or
    4    C.  a  medical condition other than such person's [mental retardation]
    5  DEVELOPMENTAL DISABILITY which requires  life-sustaining  treatment,  is
    6  irreversible and which will continue indefinitely; [and] OR
    7    D.  IN  THE  CASE  OF A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
    8  THAT IN THE EVENT OF CARDIAC OR RESPIRATORY  ARREST  SUCH  RESUSCITATION
    9  WOULD  BE  UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR
   10  THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME  PERIOD
   11  BEFORE DEATH OCCURS; AND
   12    (ii)  EXCEPT IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUS-
   13  CITATE BASED ON CLAUSE D OF SUBPARAGRAPH  (I)  OF  THIS  PARAGRAPH,  the
   14  life-sustaining  treatment  would impose an extraordinary burden on such
   15  person, in light of:
   16    A. such person's medical condition, other than such  person's  [mental
   17  retardation] DEVELOPMENTAL DISABILITY; and
   18    B.  the  expected  outcome  of the life-sustaining treatment, notwith-
   19  standing such person's [mental  retardation]  DEVELOPMENTAL  DISABILITY;
   20  and
   21    S  5.  Subdivision 4 of section 1750-b of the surrogate's court proce-
   22  dure act is amended by adding new paragraph (f) to read as follows:
   23    (F) IN THE CASE OF A PERSON FOR  WHOM  "GUARDIAN"  MEANS  A  SURROGATE
   24  DECISION-MAKING  COMMITTEE  PURSUANT  TO  THIS  SECTION, AN ORDER NOT TO
   25  RESUSCITATE MAY BE ENTERED, WITHOUT REVIEW OR APPROVAL BY  SUCH  COMMIT-
   26  TEE, IF THE ATTENDING PHYSICIAN DETERMINES, WITH THE INDEPENDENT CONCUR-
   27  RENCE  OF A SECOND PHYSICIAN, TO A REASONABLE DEGREE OF MEDICAL CERTAIN-
   28  TY, THAT IN THE EVENT OF A CARDIAC OR RESPIRATORY  ARREST  RESUSCITATION
   29  WOULD  BE  UNSUCCESSFUL IN RESTORING CARDIAC AND RESPIRATORY FUNCTION OR
   30  THAT THE PATIENT WILL EXPERIENCE REPEATED ARREST IN A SHORT TIME  PERIOD
   31  BEFORE DEATH OCCURS.
   32    S  6.  This  act shall take effect on the ninetieth day after it shall
   33  have become a law.