BILL NUMBER:S4794

TITLE OF BILL:

An act to amend the public health law, in relation to the artificial
nutrition and hydration decision standard

PURPOSE OF GENERAL IDEA OF BILL:

This is one of a series of seven bills, informally referred to as the
"Surrogate Decision-Making Improvement Acts." The bills make
technical/minor, clarifying and coordinating amendments and other
improvements to the NYS laws that govern health care decisions,
including life-sustaining treatment decisions, for patients who lack
decision-making capacity. The SDMIAs address these topics:

* SDMIA 1 Technical / Minor Amendments
* SDMIA 2 Repeals PHL Art. 29-B Orders Not to Resuscitate for Patients
in Mental Hygiene Facilities
* SDMIA 3 Determining Patient Incapacity
* SDMIA 4 Decisions by a Health Care Agent About Artificial Nutrition
and Hydration
* SDMIA 5 Confirm the Primacy of a Patient's Clear Prior Decision
* SDMIA 6 Restore Medical Futility as a Basis for a DNR Order
* SDMIA 7 Life-Sustaining Treatment Decisions for Developmentally
Disabled Persons This bill, SDMIA 4, makes the agents decision
              

regarding artificial nutrition and hydration consistent with the
Family Health Care Decision Act (FHCDA).

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends section 2980 of the public health law amending the
definition of "health care" to clarify that providing nutrition or
hydration orally, without reliance on medical treatment, is not health
care under the title.

Section 2 amends the model health care proxy form in PHL § 2981.5(d)
to delete a clause relating to agent decisions regarding artificial
nutrition and hydration because of the change made by Section 2.

Section 3 deletes a clause in section 2982 of the public health law
relating to agent decisions regarding artificial nutrition and
hydration to make the decision-making standard consistent with the
standard in the FHCDA, allowing a surrogate to make such decisions
based on the surrogate's wishes, including the principal's religious
and moral beliefs, or if the principal's wishes are not reasonably
known and cannot with reasonable diligence be ascertained, in
accordance with the principal's best interests.

Section 4 is the effective date.

JUSTIFICATION:

This bill makes the decision-making standard for an agent under the
Health Care Proxy Law similar to the standard for a surrogate under
the Family Health Care Decisions Act (FHCDA).


Specifically, the FHCDA provides that a surrogate must make decisions
about life-sustaining treatment, including artificial nutrition and
hydration, based on the patient's wishes or, if the patient's wishes
are not reasonably known, based on the patient's best interests. In
contrast, the 1987 Health Care Proxy Law allows the patient's
designated agent to make decisions about artificial nutrition and
hydration only if the decision is based on the patient's reasonably
known wishes, and not if the decision is based on the patient's best
interests. There is little basis for this disparity in standards.
Moreover, the special rule for decisions about artificial nutrition
and hydration in the Health Care Proxy Law has been a source of
enduring confusion and misinterpretation.

This amendment would make the FHCDA standard, with its careful
definition of "best interests," and which no applies to decisions by
surrogates, applicable to decisions by health care agents.

PRIOR LEGISLATIVE HISTORY:

S. 7154 of 2014; S.5321 (Sen. Hannon) (2013)/ A.7371 (M. of A.
Gottfried)(2013) included all of these provisions, as well as other
provisions.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect ninety days after the date on which this
act shall have become a law. The amendments to article 29-C of the
public health law shall apply to decisions made pursuant to health
care proxies created prior to this act becoming law as well as those
created thereafter.