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.
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.
STATE OF NEW YORK ________________________________________________________________________ 3169 2011-2012 Regular Sessions IN 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 consumerEXPLANATION--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.