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Active List: Jun 20, 2011 , Floor Calendar: Jun 14, 2011 , Floor Calendar: Jun 15, 2011 , Floor Calendar: Jun 16, 2011 , Floor Calendar: Jun 17, 2011

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Memo

BILL NUMBER:S5259A

TITLE OF BILL: An act to amend the public health law, in relation to extending the provisions of the Family Health Care Decisions act to decisions regarding hospice care

PURPOSE OR GENERAL IDEA OF BILL: To authorize family members to make decisions regarding hospice care for patients who lack decision-making capacity, in accordance with the provisions of the Family Health Care Decisions Act, PHL Article 29-CC (FHCDA).

SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends various subdivisions in PHL º2994-a (Definitions) to add definitions for "decisions regarding hospice care" and "hospice," and to amend the definition of "hospital" to include hospice.

Section 2 amends PHL º2994-b, subdivision 1 to make the FHCDA apply to decisions regarding hospice care.

Section 3 amends PHL º2994-c, subdiv. 3(b) to provide that with respect to a concurring determination regarding hospice care for a patient in a general hospital or residential health care facility, the health or social services practitioner must be employed by or otherwise affiliated with the facility.

Section 4 amends PHL º2994-d, subdiv. 5 to clarify that decisions to withdraw or withhold life sustaining treatment include decisions to accept a hospice plan of care that provides for the withdrawal or withholding of life-sustaining treatment.

Section 5 amends PHL º2994-g, subdiv. 4(b)(iii) and of the public health law to require a concurring opinion with respect to decisions to provide major medical treatment for hospice patients who do not have a surrogate.

Section 6 amends PHL º2994-g, subdiv. 5 to provide that with respect to a decision to withdraw or withhold life-sustaining treatment from a hospice patient who does not have a surrogate and who is in a general hospital or residential health care facility, the second physician must be designated by the general hospital or residential health care facility.

Section 7 amends PHL º2994-m, subdiv. 4 regarding the responsibility of a hospital or residential ethics committee to review a decision regarding a hospice patient in such facility.

Section 8 amends º2994-aa, subdiv. 13 to provide that a non-hospital order not to resuscitate also applies to hospice personnel.

Section 9 provides for the act to become effective on the sixtieth day after it shall have become a law.

JUSTIFICATION:

 By enacting the Family Health Care Decisions Act, Ch. 8, Laws of 2010 (the FHCDA), the Legislature significantly improved decision-making in New York for patients who lack capacity and who do not have a health care agent. Specifically, the FHCDA recognized the authority of a "surrogate" decision-maker, i.e., a close family member or friend, to make health care decisions for the incapable patient in such cases, subject to ethically sound standards and safeguards.

While the FHCDA by its terms only applies to health care decisions regarding health care provided in a hospital or nursing home, PHL º2994-d.1, from the outset the Legislature recognized the need to consider extending the FHCDA to other settings. To that end, it directed the NYS Task Force on Life and the Law to make recommendations regarding "whether the FHCDA should be amended to apply to health care decisions in settings other than general hospital and residential health care facilities." Ch. 8, L. 2010, º28.2.

On November 30, 2010, after hearing various views and engaging in a deliberative process, the Task Force issued an initial recommendation regarding extending the FHCDA: it recommended amending the FHCDA to provide surrogates with authority to make decisions on behalf of incapable patients regarding hospice care. See NYS Task Force on Life and the Law, "Recommendations Regarding the Extension of the Family Health Care Decisions Act to Include Hospice." (www.health.state.ny.us/ regulations/taskJorce/docs/20 1 0-12-22_ extension_ of_family _ health_care_decisions _ act.pdt:).

As the Task Force report explained:

The current wording of the FHCDA creates a barrier to the utilization of hospice by terminally ill individuals because the authority it bestows upon surrogates is limited to care provided in hospitals or nursing homes. The FHCDA does not permit a surrogate to elect hospice care for a loved one who is being cared for outside of a covered facility at the time of the election decision. Even when a patient is successfully enrolled in hospice, a surrogate lacks the ability to make decisions about on-going care so long as that care is to be provided outside of a covered facility, for example, where hospice care will be provided in a stand-alone hospice facility or in the home. Therefore, the ability of a patient without decision-making capacity to access hospice care will depend upon where care is currently provided or will be provided going forward. Instead, the focus should be solely on ensuring that the individual's known preferences or best interests are honored at this crucial time.

The addition of hospice also fits well into the structure of the FHCDA as it currently stands, without requiring extensive changes. Hospices are federally certified and highly regulated at the state level. The safeguards and oversight mechanisms in the FHCDA, including the procedures for determining capacity, the procedures for end-of-life decision-making, and the requirements of ethics review committees will translate into hospice settings. Hospices have physicians and other interdisciplinary professionals on staff to fulfill the statutory requirements in these areas, and most hospices have their Own ethics committee, or have access to an ethics committee (e.g., through an affiliated institution or other agreement).

 PRIOR LEGISLATIVE HISTORY: None.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: The act will take effect on the sixtieth day after it becomes a law.

Text

STATE OF NEW YORK
________________________________________________________________________

5259--A
Cal. No. 1134

2011-2012 Regular Sessions

IN SENATE

May 3, 2011
___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health -- reported favora-
  bly from said committee, ordered to first  report,  amended  on  first
  report,  ordered  to  a second report and ordered reprinted, retaining
  its place in the order of second report

AN ACT to amend the public health law,  in  relation  to  extending  the
  provisions  of  the  Family  Health  Care  Decisions  act to decisions
  regarding hospice care

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Subdivision 18 of section 2994-a of the public health law,
as added by chapter 8 of the laws of 2010 is amended, and two new subdi-
visions 5-a and 17-a are added to read as follows:
  5-A.  "DECISIONS  REGARDING HOSPICE CARE" MEANS THE DECISION TO ENROLL
OR DISENROLL IN HOSPICE, AND CONSENT TO THE HOSPICE  PLAN  OF  CARE  AND
MODIFICATIONS TO THAT PLAN.
  17-A.    "HOSPICE" MEANS A HOSPICE AS DEFINED IN ARTICLE FORTY OF THIS
CHAPTER, WITHOUT REGARD TO WHERE THE HOSPICE CARE IS PROVIDED.
  18. "Hospital" means a general hospital  [or],  a  residential  health
care facility, OR HOSPICE.
  S  2.  Subdivision  1  of  section 2994-b of the public health law, as
added by chapter 8 of the laws of 2010, is amended to read as follows:
  1. This article shall apply to health care decisions regarding  health
care  provided  in  a  hospital [to], AND TO DECISIONS REGARDING HOSPICE
CARE WITHOUT REGARD TO WHERE THE DECISION IS MADE OR WHERE THE  CARE  IS
PROVIDED,  FOR  a  patient who lacks decision-making capacity, except as
limited by this section.
  S 3. Paragraph (b) of subdivision 3 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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11440-02-1
S. 5259--A                          2

  (b) (i) In a residential health care  facility,  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.
  (ii)  In  a  general hospital 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  withdrawal  or  with-
holding of life-sustaining treatment.
  (III)  WITH  RESPECT TO DECISIONS REGARDING HOSPICE CARE FOR A PATIENT
IN A GENERAL HOSPITAL OR RESIDENTIAL HEALTH CARE FACILITY, THE HEALTH OR
SOCIAL SERVICES PRACTITIONER MUST BE EMPLOYED BY OR  OTHERWISE  FORMALLY
AFFILIATED  WITH THE GENERAL HOSPITAL OR RESIDENTIAL HEALTH CARE FACILI-
TY.
  S 4. The opening paragraph of subdivision 5 of section 2994-d  of  the
public health law, as added by chapter 8 of the laws of 2010, is amended
to read as follows:
  Decisions  to withhold or withdraw life-sustaining treatment. In addi-
tion to the standards set forth in subdivision  four  of  this  section,
decisions  by  surrogates to withhold or withdraw life-sustaining treat-
ment (INCLUDING DECISIONS TO ACCEPT A HOSPICE PLAN OF CARE THAT PROVIDES
FOR THE WITHDRAWAL OR WITHHOLDING OF LIFE-SUSTAINING TREATMENT) shall be
authorized only if the following conditions are satisfied,  as  applica-
ble:
  S  5.  Subparagraph (iii) of paragraph (b) of subdivision 4 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:
  (iii) In a residential health care facility, AND FOR A HOSPICE PATIENT
NOT  IN  A  GENERAL  HOSPITAL,  the  medical director of the facility OR
HOSPICE, or a physician designated by the medical director,  must  inde-
pendently  determine  that  he or she concurs that the recommendation is
appropriate; provided that if the  medical  director  is  the  patient's
attending physician, a different physician designated by the residential
health  care  facility  OR  HOSPICE  must make this independent determi-
nation. Any health or social services practitioner employed by or other-
wise formally affiliated with the facility  OR  HOSPICE  may  provide  a
second  opinion for decisions about physical restraints made pursuant to
this subdivision.
  S 6. Subdivision 5 of section 2994-g  of  the  public  health  law  is
amended by adding a new paragraph (c) to read as follows:
  (C) WITH RESPECT TO A DECISION REGARDING HOSPICE CARE FOR A PATIENT IN
A  GENERAL  HOSPITAL  OR  RESIDENTIAL  HEALTH  CARE FACILITY, THE SECOND
PHYSICIAN MUST BE DESIGNATED BY  THE  GENERAL  HOSPITAL  OR  RESIDENTIAL
HEALTH CARE FACILITY.
  S  7.  Subdivision  4  of  section  2994-m of the public health law is
amended by adding a new paragraph (c) 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 OR RESIDEN-
TIAL HEALTH CARE FACILITY, THE RESPONSIBILITIES OF THIS SECTION SHALL BE
CARRIED OUT BY THE ETHICS REVIEW COMMITTEE OF THE  GENERAL  HOSPITAL  OR
RESIDENTIAL  HEALTH  CARE  FACILITY,  PROVIDED THAT SUCH COMMITTEE SHALL
INVITE A REPRESENTATIVE FROM HOSPICE TO PARTICIPATE.
  S 8. Subdivision 13 of section 2994-aa of the public  health  law,  as
added by chapter 8 of the laws of 2010, is amended to read as follows:
  13. "Nonhospital order not to resuscitate" means an order that directs
emergency  medical  services  personnel,  HOSPICE PERSONNEL and hospital
S. 5259--A                          3

emergency services personnel not  to  attempt  cardiopulmonary  resusci-
tation in the event a patient suffers cardiac or respiratory arrest.
  S  9.  This  act  shall take effect on the sixtieth day after it shall
have become a law.