Authorizes the consumer advisory board to make health care decisions for certain developmentally disabled persons who resided at the former Willowbrook state school on March 17, 1972 or subsequently returned to such school, and who have no appointed guardians or family members.

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S3169-2011 Actions

• Jan 4, 2012: REFERRED TO JUDICIARY
• Feb 10, 2011: REFERRED TO JUDICIARY

S3169-2011 Memo

BILL NUMBER:S3169

TITLE OF BILL:
An act
to amend the surrogate's court procedure act, in relation to authorizing
the consumer advisory board to make health care decisions for
certain residents of the former
Willowbrook state school

PURPOSE OF THE BILL:
This bill would amend the Surrogate's Court Procedure Act (SCPA) to
authorize the Consumer Advisory Board (CAB) to make end-of-life
decisions for persons with developmental disabilities resided at the
willowbrook State School as of March 17, 1972 or those 104
individuals who were in community care status on that date and
subsequently returned to Willowbrook or a related facility
("Willowbrook Class members") who lack capacity to make their own
health care decisions.

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend SCPA � 1750-b(1) (a) and (b) to
authorize the CAB to make decisions regarding the withholding or
withdrawing of life-sustaining treatment for willowbrook Class
members who are fully represented by the CAB and who have no
guardian or r qualified family member to make such a decision on
their behalf and to give the Commissioner of the Office of People
with Developmental Disabilities the discretion to promulgate
regulations, with the advice of the CAB, to implement this bill.
This section on would also make a technical correction to delete
"court" from the name of the surrogate decision-making committee.

Section 2 of the bill provides for an immediate effective date.

EXISTING LAW:
SCPA � 1750-b(1) (a) authorizes qualified family members or the
surrogate decision-making committee to make certain decisions on
behalf of a person with developmental disabilities who lacks capacity
to make his or her own health care decisions, including the decision
to withhold or withdraw life-sustaining treatment.

SCPA � 1750-b(1)(b) authorizes the Commissioner of People with
Developmental Disabilities to promulgate regulations establishing
the prioritized list of family members who are authorized to make
decisions regarding the withholding or withdrawing of life-sustaining
treatment.

PRIOR LEGISLATIVE HISTORY:
This is a new proposal.

STATEMENT IN SUPPORT:
In the last several years, legislation has been enacted which expands
the authority for end-of-life health care decisions. Chapter 105 of
the Laws of 2007 authorized qualified family members to make such
decisions when the individual had no legal guardian. Subsequently,
Chapter 262 of the Laws of 2008 authorized surrogate decision making
committees to make major medical treatment decisions, including
end-of-life decisions, for individuals with developmental


disabilities who lack capacity to make their own health care
decisions and who had no qualified family member or legal guardian.

This bill would provide authority for the CAB to make end-of-life
decisions for Willowbrook class members. The CAB was created by the
willowbrook Consent Decree to advocate for Willowbrook Class
consumers, particularly those who cannot advocate for themselves or
have no active family members or legal guardians to represent their
interests. The CAB is already authorized to make major health care
decisions for Willowbrook Class members they fully represent, except
for end-of-life health care decisions. This bill would allow for the
CAB to also make end-of-life decisions for persons they represent,
where there is no qualified family member or legal guardian, and
where the CAB has the most extensive knowledge of the person's health
care needs and desires. The Commissioner of OPWDD is also authorized
to develop regulations, with advice from the CAB to implement this
provision.

BUDGET IMPLICATIONS:
This proposal is expected to have a minimal fiscal impact.

EFFECTIVE DATE:
This bill would take effect immediately.

S3169-2011 Text

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

                                    3169

                         2011-2012 Regular Sessions

                              I N  SENATE

                              February 10, 2011
                                 ___________

  Introduced  by  Sen. HUNTLEY -- read twice and ordered printed, and when
    printed to be committed to the Committee on Judiciary

  AN ACT to amend the surrogate's court  procedure  act,  in  relation  to
    authorizing  the consumer advisory board to make health care decisions
    for certain residents of the former Willowbrook state school

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


    Section  1. The opening paragraph of paragraph (a) of subdivision 1 of
  section 1750-b of the surrogate's court procedure  act,  as  amended  by
  chapter 8 of the laws of 2010, is amended to read as follows:

    For  the  purposes  of making a decision to withhold or withdraw life-
  sustaining treatment pursuant to this section, in the case of  a  person
  for  whom  no  guardian has been appointed pursuant to section seventeen
  hundred fifty or seventeen hundred fifty-a of this article, a "guardian"
  shall also mean a family member of a person who (i) has mental  retarda-
  tion, or (ii) has a developmental disability, as defined in section 1.03
  of the mental hygiene law, which (A) includes mental retardation, or (B)
  results  in  a similar impairment of general intellectual functioning or
  adaptive behavior so that such person is incapable of  managing  himself
  or  herself,  and/or  his or her affairs by reason of such developmental
  disability. Qualified family members shall be included in a  prioritized
  list  of  said family members pursuant to regulations established by the
  commissioner of mental retardation and developmental disabilities.  Such
  family  members  must  have  a  significant and ongoing involvement in a
  person's life so as to have sufficient knowledge  of  their  needs  and,
  when  reasonably  known or ascertainable, the person's wishes, including
  moral and religious beliefs. In the case of a person who was a  resident
  of  the  former  Willowbrook state school on March seventeenth, nineteen
  hundred seventy-two and those ONE HUNDRED FOUR individuals who  were  in
  community  care status on that date and subsequently returned to Willow-
  brook or a related facility, who are fully represented by  the  consumer

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD08756-01-1

 S. 3169                             2

  advisory  board  and  who  have  no guardians appointed pursuant to this
  article or have no qualified family members to  make  such  a  decision,
  then  a  "guardian"  shall  also  mean the Willowbrook consumer advisory
  board.  A  decision  of  such  family member or the Willowbrook consumer
  advisory board to withhold or withdraw life-sustaining  treatment  shall
  be  subject  to  all of the protections, procedures and safeguards which
  apply to the decision of a guardian to withhold  or  withdraw  life-sus-
  taining treatment pursuant to this section.
    S 2. This act shall take effect immediately.