S. 5329 2
S 4. Paragraph (c) of subdivision 3 and subdivision 4 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:
(c) If a health care decision for a patient cannot be made under
[paragraphs] PARAGRAPH (a) or (b) of this subdivision, but consent for
the decision may be provided pursuant to the [mental hygiene law] SURRO-
GATE'S COURT PROCEDURE ACT, or regulations of the office of mental
health or the office [of mental retardation and] FOR PEOPLE WITH devel-
opmental disabilities, then the decision shall be governed by such
[statute] ACT or regulations and not by this article.
4. If, after reasonable efforts, it is determined that a health care
decision for the patient cannot be made pursuant to subdivision two or
three of this section, then the health care decision shall be made
pursuant to this article, PROVIDED THAT THE OPTION OF SEEKING A DECISION
BY FILING A DECLARATION WITH A SURROGATE DECISION-MAKING COMMITTEE
PURSUANT TO ARTICLE EIGHTY OF THE MENTAL HYGIENE LAW SHALL REMAIN AVAIL-
ABLE.
S 5. Subparagraph (ii) of paragraph (a) of subdivision 5 of section
2994-d of the public health law, as added by chapter 8 of the laws of
2010, is amended and a new subparagraph (iii) is added to read as
follows:
(ii) The provision of treatment would involve such pain, suffering or
other burden that it would reasonably be deemed inhumane or extraor-
dinarily burdensome under the circumstances and the patient has an irre-
versible or incurable condition, as determined by an attending physician
with the independent concurrence of another physician to a reasonable
degree of medical certainty and in accord with accepted medical stand-
ards[.]; OR
(III) IN THE CASE OF A DECISION TO ENTER AN ORDER NOT TO RESUSCITATE,
OR TO WITHHOLD INTUBATION AND/OR MECHANICAL VENTILATION WHICH CONSTI-
TUTES LIFE-SUSTAINING TREATMENT, THE ATTENDING PHYSICIAN DETERMINES TO A
REASONABLE DEGREE OF MEDICAL CERTAINTY AND IN ACCORD WITH ACCEPTED
MEDICAL STANDARDS THAT ANY OR ALL OF SUCH MEASURES WOULD BE MEDICALLY
FUTILE AND THAT SUCH TREATMENT WOULD BE UNSUCCESSFUL IN RESTORING CARDI-
AC AND RESPIRATORY FUNCTION OR THAT THE PATIENT WILL EXPERIENCE REPEATED
ARRESTS IN A SHORT TIME PERIOD BEFORE DEATH OCCURS.
S 6. Section 1750-b of the surrogate's court procedure act, as added
by chapter 500 of the laws of 2002, subdivision 1 as amended by chapter
105 of the laws of 2007, the opening paragraph and paragraphs (a) and
(b) of subdivision 1, and the opening paragraph of subdivision 4 as
amended by chapter 8 of the laws of 2010, subparagraph (i) of paragraph
(a) and clause A of subparagraph (i) of paragraph (e) of subdivision 4
as amended by section 18 of part J of chapter 56 of the laws of 2012 and
paragraph (d) of subdivision 5 as added by chapter 262 of the laws of
2008, is amended to read as follows:
S 1750-b. Health care decisions for [mentally retarded] persons WITH
DEVELOPMENTAL DISABILITIES
1. Scope of authority. FOR THE PURPOSES OF THIS SECTION, "DEVELOP-
MENTAL DISABILITY" SHALL BE AS DEFINED IN SUBDIVISION TWENTY-TWO OF
SECTION 1.03 OF THE MENTAL HYGIENE LAW. Unless specifically prohibited
by the court after consideration of the determination, if any, regarding
a [mentally retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S
capacity to make health care decisions, which is required by section
seventeen hundred fifty of this article, the guardian of such person
appointed pursuant to section seventeen hundred fifty of this article
shall have the authority to make any and all health care decisions, as
S. 5329 3
defined by subdivision six of section twenty-nine hundred eighty of the
public health law, on behalf of the [mentally retarded] person WITH A
DEVELOPMENTAL DISABILITY that such person could make if such person had
capacity. Such decisions may include decisions to withhold or withdraw
life-sustaining treatment. For purposes of this section, "life-sustain-
ing treatment" means medical treatment, including cardiopulmonary resus-
citation, INTUBATION AND/OR MECHANICAL VENTILATION IN THE EVENT SUCH
PERSON HAS SEVERE RESPIRATORY INSUFFICIENCY, and nutrition and hydration
provided by means of medical treatment, which is OR WOULD BE sustaining
life functions and without which, according to reasonable medical judg-
ment, the patient will die within a relatively short time period.
Cardiopulmonary resuscitation is presumed to be life-sustaining treat-
ment without the necessity of a medical judgment by an attending physi-
cian. The provisions of this article are not intended to permit or
promote suicide, assisted suicide or euthanasia; accordingly, nothing in
this section shall be construed to permit a guardian to consent to any
act or omission to which the [mentally retarded] person WITH A DEVELOP-
MENTAL DISABILITY could not consent if such person had capacity.
(a) 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 retardation, 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 intel-
lectual functioning or adaptive behavior so that such person is incapa-
ble 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 regu-
lations 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 individuals
who were in community care status on that date and subsequently returned
to Willowbrook or a related facility, who are fully represented by the
consumer advisory board and who have no guardians appointed pursuant to
this article or have no qualified family members to make such a deci-
sion, then a "guardian" shall also mean the Willowbrook consumer advi-
sory 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.
In the case of a person for whom no guardian has been appointed pursu-
ant to this article or for whom there is no qualified family member or
the Willowbrook consumer advisory board available to make such a deci-
sion, AND EXCEPT IN THE CASE OF A DECISION TO WITHHOLD CARDIOPULMONARY
RESUSCITATION OR INTUBATION AND/OR MECHANICAL VENTILATION ON THE GROUNDS
THAT ANY OR ALL SUCH MEASURES WOULD BE MEDICALLY FUTILE, a "guardian"
shall also mean, notwithstanding the definitions in section 80.03 of the
mental hygiene law, a surrogate decision-making committee, as defined in
article eighty of the mental hygiene law. All declarations and proce-
S. 5329 4
dures, including expedited procedures, to comply with this section shall
be established by regulations promulgated by the [commission on quality
of care and advocacy for persons with disabilities] JUSTICE CENTER FOR
THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS.
IN THE CASE OF A PERSON DETERMINED TO LACK CAPACITY TO MAKE HIS OR HER
OWN HEALTH CARE DECISIONS PURSUANT TO PARAGRAPH (A) OF SUBDIVISION FOUR
OF THIS SECTION, AND FOR WHOM NO GUARDIAN HAS BEEN APPOINTED PURSUANT TO
THIS ARTICLE OR FOR WHOM THERE IS NO QUALIFIED FAMILY MEMBER OR THE
WILLOWBROOK CONSUMER ADVISORY BOARD AVAILABLE TO MAKE A DECISION IN
WHICH THE ATTENDING PHYSICIAN, AS DEFINED IN SUBDIVISION TWO OF SECTION
TWENTY-NINE HUNDRED EIGHTY OF THE PUBLIC HEALTH LAW, WITH THE WRITTEN
CONCURRENCE OF ANOTHER PHYSICIAN WITH WHOM SUCH ATTENDING PHYSICIAN
SHALL CONSULT, DETERMINES TO A REASONABLE DEGREE OF MEDICAL CERTAINTY
AND SO NOTES IN THE PERSON'S MEDICAL CHART THAT CARDIOPULMONARY RESUSCI-
TATION, INTUBATION AND/OR MECHANICAL VENTILATION WOULD BE MEDICALLY
FUTILE, AS SUCH TERM IS DEFINED IN SUBPARAGRAPH (III) OF PARAGRAPH (A)
OF SUBDIVISION FIVE OF SECTION TWENTY-NINE HUNDRED NINETY-FOUR-D OF THE
PUBLIC HEALTH LAW, AN ORDER DIRECTING SUCH WITHHOLDING OF LIFE-SUSTAIN-
ING TREATMENT MAY BE ENTERED IN THE PERSON'S MEDICAL CHART, SUBJECT TO
THE PROCEDURAL REQUIREMENTS AND SAFEGUARDS CONTAINED IN PARAGRAPH (E) OF
SUBDIVISION FOUR, AND SUBDIVISIONS FIVE AND SIX OF THIS SECTION.
(b) Regulations establishing the prioritized list of qualified family
members required by paragraph (a) of this subdivision shall be developed
by the commissioner of [mental retardation and] developmental disabili-
ties in conjunction with parents, advocates and family members of
persons [who are mentally retarded] WITH A DEVELOPMENTAL DISABILITY.
Regulations to implement the authority of the Willowbrook consumer advi-
sory board pursuant to paragraph (a) of this subdivision may be promul-
gated by the commissioner of [the office of mental retardation and]
developmental disabilities with advice from the Willowbrook consumer
advisory board.
(c) Notwithstanding any provision of law to the contrary, the formal
determinations required pursuant to section seventeen hundred fifty of
this article shall only apply to guardians appointed pursuant to section
seventeen hundred fifty or seventeen hundred fifty-a of this article.
(D) A PATIENT FOUND BY THE ATTENDING PHYSICIAN TO HAVE CAPACITY TO
MAKE HIS OR HER OWN HEALTH CARE DECISIONS, PURSUANT TO PARAGRAPH (A) OF
SUBDIVISION FOUR OF THIS SECTION, SHALL, UPON NOTICE TO THE MENTAL
HYGIENE LEGAL SERVICE AND THE CHIEF EXECUTIVE OFFICER OF A RESIDENTIAL
FACILITY OPERATED, LICENSED OR AUTHORIZED BY THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES, IN WHICH FACILITY THE PATIENT RESIDES OR
FROM WHICH HE OR SHE WAS TRANSFERRED, MAY MAKE HIS OR HER OWN DECISIONS,
INCLUDING THOSE RELATING TO LIFE-SUSTAINING TREATMENT.
(E) A PATIENT WHO HAS A VALID HEALTH CARE PROXY AT THE TIME OF A
HEALTH CARE DECISION, INCLUDING A DECISION INVOLVING LIFE-SUSTAINING
TREATMENT, SHALL HAVE ALL SUCH DECISIONS MADE IN ACCORDANCE WITH ARTICLE
TWENTY-NINE-C OF THE PUBLIC HEALTH LAW. IF FOR ANY REASON THE AGENT OR
AN ALTERNATE AGENT CANNOT ACT OR IS UNWILLING TO ACT, AND THE PATIENT IS
OTHERWISE ELIGIBLE TO HAVE A DECISION AS TO LIFE-SUSTAINING TREATMENT
MADE PURSUANT TO THIS SECTION, ANY GUARDIAN OR PERSON OR ENTITY ENTITLED
TO EXERCISE THE AUTHORITY OF A GUARDIAN UNDER PARAGRAPH (A) OF THIS
SUBDIVISION MAY MAKE SUCH DECISION.
2. Decision-making standard. (a) The guardian shall base all advocacy
and health care decision-making solely and exclusively on the best
interests of the [mentally retarded] person WITH A DEVELOPMENTAL DISA-
BILITY and, when reasonably known or ascertainable with reasonable dili-
S. 5329 5
gence, on the [mentally retarded person's] PERSON WITH A DEVELOPMENTAL
DISABILITY'S wishes, including moral and religious beliefs.
(b) An assessment of the [mentally retarded person's] PERSON WITH A
DEVELOPMENTAL DISABILITY'S best interests shall include consideration
of:
(i) the dignity and uniqueness of every person;
(ii) the preservation, improvement or restoration of the [mentally
retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S health;
(iii) the relief of the [mentally retarded person's] PERSON WITH A
DEVELOPMENTAL DISABILITY'S suffering by means of palliative care and
pain management;
(iv) the unique nature of [artificially provided] nutrition or
hydration PROVIDED BY MEANS OF MEDICAL TREATMENT, and the effect it may
have on the [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY;
and
(v) the entire medical condition of the person.
(c) No health care decision shall be influenced in any way by:
(i) a presumption that persons with [mental retardation] A DEVELOP-
MENTAL DISABILITY are not entitled to the full and equal rights, equal
protection, respect, medical care and dignity afforded to persons with-
out [mental retardation or developmental disabilities] A DEVELOPMENTAL
DISABILITY; or
(ii) financial considerations of the guardian, as such considerations
affect the guardian, a health care provider or any other party.
3. Right to receive information. Subject to the provisions of sections
33.13 and 33.16 of the mental hygiene law, the guardian shall have the
right to receive all medical information and medical and clinical
records necessary to make informed decisions regarding the [mentally
retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S health care.
4. Life-sustaining treatment. The guardian shall have the affirmative
obligation to advocate for the full and efficacious provision of health
care, including life-sustaining treatment. In the event that a guardian
[makes] INITIATES a decision to withdraw or withhold life-sustaining
treatment from a [mentally retarded] person WITH A DEVELOPMENTAL DISA-
BILITY:
(a) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, must confirm to a
reasonable degree of medical certainty that the [mentally retarded]
person WITH A DEVELOPMENTAL DISABILITY lacks capacity to make health
care decisions. The determination thereof shall be included in the
[mentally retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S
medical record, and shall contain such attending physician's opinion
regarding the cause and nature of the [mentally retarded person's]
PERSON WITH A DEVELOPMENTAL DISABILITY'S incapacity as well as its
extent and probable duration. The attending physician who makes the
confirmation shall consult with another physician, or a licensed
psychologist, to further confirm the [mentally retarded person's] PERSON
WITH A DEVELOPMENTAL DISABILITY'S lack of capacity. The attending physi-
cian who makes the confirmation, or the physician or licensed psychol-
ogist with whom the attending physician consults, must (i) be employed
by a developmental disabilities services office named in section 13.17
of the mental hygiene law or employed by the office for people with
developmental disabilities to provide treatment and care to people with
developmental disabilities, or (ii) have been employed for a minimum of
two years to render care and service in a facility or program operated,
licensed or authorized by the office [of mental retardation and] FOR
S. 5329 6
PEOPLE WITH developmental disabilities, or (iii) have been approved by
the commissioner of [mental retardation and] developmental disabilities
in accordance with regulations promulgated by such commissioner. Such
regulations shall require that a physician or licensed psychologist
possess specialized training or three years experience in treating
[mental retardation] PEOPLE WITH DEVELOPMENTAL DISABILITIES. A record
of such consultation shall be included in the [mentally retarded
person's] PERSON WITH DEVELOPMENTAL DISABILITY'S medical record.
(b) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, with the concur-
rence of another physician with whom such attending physician shall
consult, must determine to a reasonable degree of medical certainty and
note on the [mentally retarded person's] PERSON WITH A DEVELOPMENTAL
DISABILITY'S chart that:
(i) the [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY has
a medical condition as follows:
A. a terminal condition, as defined in subdivision twenty-three of
section twenty-nine hundred sixty-one of the public health law; or
B. permanent unconsciousness; or
C. a medical condition other than such person's [mental retardation]
DEVELOPMENTAL DISABILITY which requires life-sustaining treatment, is
irreversible and which will continue indefinitely; [and] OR
D. IN THE CASE OF A DECISION TO WITHHOLD CARDIOPULMONARY RESUSCI-
TATION, OR INTUBATION AND/OR MECHANICAL VENTILATION, WHERE ANY OR ALL OF
SUCH MEASURES WOULD BE MEDICALLY FUTILE WITHIN THE MEANING OF SUBPARA-
GRAPH (III) OF PARAGRAPH (A) OF SUBDIVISION FIVE OF SECTION TWENTY-NINE
HUNDRED NINETY-FOUR-D OF THE PUBLIC HEALTH LAW; AND
(ii) EXCEPT IN THE CASE OF A DECISION TO WITHHOLD CARDIOPULMONARY
RESUSCITATION, OR INTUBATION AND/OR MECHANICAL VENTILATION BY REASON OF
MEDICAL FUTILITY, the life-sustaining treatment would impose an extraor-
dinary burden on such person, in light of:
A. such person's medical condition, other than such person's [mental
retardation] DEVELOPMENTAL DISABILITY; and
B. the expected outcome of the life-sustaining treatment, notwith-
standing such person's [mental retardation] DEVELOPMENTAL DISABILITY;
and
(iii) in the case of a decision to withdraw or withhold [artificially
provided] nutrition or hydration PROVIDED BY MEANS OF MEDICAL TREATMENT:
A. there is no reasonable hope of maintaining life; or
B. the [artificially provided] nutrition or hydration PROVIDED BY
MEANS OF MEDICAL TREATMENT poses an extraordinary burden.
(c) The guardian shall THEREAFTER express a decision to withhold or
withdraw life-sustaining treatment either:
(i) in writing, dated and signed in the presence of one witness eigh-
teen years of age or older who shall sign the decision, and presented to
the attending physician, as defined in subdivision two of section twen-
ty-nine hundred eighty of the public health law; or
(ii) orally, to two persons eighteen years of age or older, at least
one of whom is the [mentally retarded person's] PERSON WITH A DEVELOP-
MENTAL DISABILITY'S attending physician, as defined in subdivision two
of section twenty-nine hundred eighty of the public health law.
(d) The attending physician, as defined in subdivision two of section
twenty-nine hundred eighty of the public health law, who is provided
with the decision of a guardian shall include the decision in the
[mentally retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S
medical chart, and shall either:
S. 5329 7
(i) promptly issue an order to withhold or withdraw life-sustaining
treatment from the [mentally retarded] person WITH A DEVELOPMENTAL DISA-
BILITY, and inform the staff responsible for such person's care, if any,
of the order; or
(ii) promptly object to such decision, in accordance with subdivision
five of this section.
(e) At least forty-eight hours prior to the implementation of a deci-
sion to withdraw life-sustaining treatment, or at the earliest possible
time prior to the implementation of a decision to withhold life-sustain-
ing treatment, the attending physician shall notify:
(i) the [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY,
except if the attending physician determines, in writing and in consul-
tation with another physician or a licensed psychologist, that, to a
reasonable degree of medical certainty, the person would suffer immedi-
ate and severe injury from such notification. The attending physician
who makes the confirmation, or the physician or licensed psychologist
with whom the attending physician consults, shall:
A. be employed by a developmental disabilities services office named
in section 13.17 of the mental hygiene law or employed by the office for
people with developmental disabilities to provide treatment and care to
people with developmental disabilities, or
B. have been employed for a minimum of two years to render care and
service in a facility operated, licensed or authorized by the office [of
mental retardation and] FOR PEOPLE WITH developmental disabilities, or
C. have been approved by the commissioner of [mental retardation and]
developmental disabilities in accordance with regulations promulgated by
such commissioner. Such regulations shall require that a physician or
licensed psychologist possess specialized training or three years expe-
rience in treating [mental retardation] PEOPLE WITH DEVELOPMENTAL DISA-
BILITY'S. A record of such consultation shall be included in the
[mentally retarded person's] PERSON WITH A DEVELOPMENTAL DISABILITY'S
medical record;
(ii) if the person is in or was transferred from a residential facili-
ty operated, licensed or authorized by the office [of mental retardation
and] FOR PEOPLE WITH developmental disabilities, the chief executive
officer of the agency or organization operating such facility and the
mental hygiene legal service; and
(iii) if the person is not in and was not transferred from such a
facility or program, the commissioner of [mental retardation and] devel-
opmental disabilities, or his or her designee.
(F) FOR A PATIENT RESIDING IN A FACILITY OPERATED, LICENSED OR AUTHOR-
IZED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES AS TO WHOM
AN ORDER TO WITHHOLD CARDIOPULMONARY RESUSCITATION, INTUBATION AND/OR
MECHANICAL VENTILATION HAS BEEN ENTERED, THE ATTENDING PHYSICIAN SHALL
REVIEW WHETHER THE ORDER IS STILL APPROPRIATE AT SUCH TIMES AND IN SUCH
MANNER AS IS PRESCRIBED BY SUBDIVISION FOUR OF SECTION TWENTY-NINE
HUNDRED NINETY-FOUR-DD OF THE PUBLIC HEALTH LAW.
5. Objection to health care decision. (a) Suspension. A health care
decision made pursuant to subdivision four of this section shall be
suspended, pending DISPUTE MEDIATION AND POSSIBLE judicial review,
except if the suspension would in reasonable medical judgment be likely
to result in the death of the [mentally retarded] person WITH A DEVELOP-
MENTAL DISABILITY, in the event of an objection to that decision at any
time by:
(i) the [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY on
whose behalf such decision was made; or
S. 5329 8
(ii) a parent or adult sibling who either resides with or has main-
tained substantial and continuous contact with the [mentally retarded]
person WITH A DEVELOPMENTAL DISABILITY; or
(iii) the attending physician, as defined in subdivision two of
section twenty-nine hundred eighty of the public health law; or
(iv) any other health care practitioner providing services to the
[mentally retarded] person WITH A DEVELOPMENTAL DISABILITY, who is
licensed pursuant to article one hundred thirty-one, one hundred thir-
ty-one-B[, one hundred thirty-two, one hundred thirty-three, one hundred
thirty-six,] OR one hundred thirty-nine[, one hundred forty-one, one
hundred forty-three, one hundred forty-four, one hundred fifty-three,
one hundred fifty-four, one hundred fifty-six, one hundred fifty-nine or
one hundred sixty-four] of the education law; or
(v) the chief executive officer identified in subparagraph (ii) of
paragraph (e) of subdivision four of this section; or
(vi) if the person is in or was transferred from a residential facili-
ty or program operated, approved or licensed by the office [of mental
retardation and] FOR PEOPLE WITH developmental disabilities, the mental
hygiene legal service; or
(vii) if the person is not in and was not transferred from such a
facility or program, the commissioner of [mental retardation and] devel-
opmental disabilities, or his or her designee.
(b) Form of objection. Such objection shall occur orally or in writ-
ing.
(c) Notification. In the event of the suspension of a health care
decision pursuant to this subdivision, the objecting party shall prompt-
ly notify the guardian and the other parties identified in paragraph (a)
of this subdivision, and the attending physician shall record such
suspension in the [mentally retarded person's] PERSON WITH A DEVELOP-
MENTAL DISABILITY'S medical chart.
(d) Dispute mediation. In the event of an objection pursuant to this
subdivision, at the request of the objecting party or person or entity
authorized to act as a guardian under this section, except a surrogate
decision making committee established pursuant to article eighty of the
mental hygiene law, such objection shall be referred to [a dispute medi-
ation system, established pursuant to section two thousand nine hundred
seventy-two] AN ETHICS COMMITTEE, ESTABLISHED PURSUANT TO SECTION TWEN-
TY-NINE HUNDRED NINETY-FOUR-M of the public health law, or similar enti-
ty for mediating disputes in a hospice, such as a patient's advocate's
office, hospital chaplain's office [or ethics committee], as described
in writing and adopted by the governing authority of such hospice, for
non-binding mediation. In the event that such dispute cannot be resolved
within seventy-two hours or no such mediation entity exists or is
reasonably available for mediation of a dispute, the objection [shall]
MAY proceed to judicial review pursuant to this subdivision. The party
requesting mediation shall provide notification to those parties enti-
tled to notice pursuant to paragraph (a) of this subdivision.
6. Special proceeding authorized. The guardian, the attending physi-
cian, as defined in subdivision two of section twenty-nine hundred
eighty of the public health law, the chief executive officer identified
in subparagraph (ii) of paragraph (e) of subdivision four of this
section, the mental hygiene legal service (if the person is in or was
transferred from a residential facility or program operated, approved or
licensed by the office [of mental retardation and] FOR PEOPLE WITH
developmental disabilities) or the commissioner of [mental retardation
and] developmental disabilities or his or her designee (if the person is
S. 5329 9
not in and was not transferred from such a facility or program) may
commence a special proceeding in a court of competent jurisdiction with
respect to any dispute arising under this section, including objecting
to the withdrawal or withholding of life-sustaining treatment because
such withdrawal or withholding is not in accord with the criteria set
forth in this section.
7. Provider's obligations. (a) A health care provider shall comply
with the health care decisions made by a guardian in good faith pursuant
to this section, to the same extent as if such decisions had been made
by the [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY, if
such person had capacity.
(b) Notwithstanding paragraph (a) of this subdivision, nothing in this
section shall be construed to require a private hospital to honor a
guardian's health care decision that the hospital would not honor if the
decision had been made by the [mentally retarded] person WITH A DEVELOP-
MENTAL DISABILITY, if such person had capacity, because the decision is
contrary to a formally adopted written policy of the hospital expressly
based on religious beliefs or sincerely held moral convictions central
to the hospital's operating principles, and the hospital would be
permitted by law to refuse to honor the decision if made by such person,
provided:
(i) the hospital has informed the guardian of such policy prior to or
upon admission, if reasonably possible; and
(ii) the [mentally retarded] person WITH A DEVELOPMENTAL DISABILITY,
is transferred promptly to another hospital that is reasonably accessi-
ble under the circumstances and is willing to honor the guardian's deci-
sion. If the guardian is unable or unwilling to arrange such a transfer,
the hospital's refusal to honor the decision of the guardian shall
constitute an objection pursuant to subdivision five of this section.
(c) Notwithstanding paragraph (a) of this subdivision, nothing in this
section shall be construed to require an individual health care provider
to honor a guardian's health care decision that the individual would not
honor if the decision had been made by the [mentally retarded] person
WITH A DEVELOPMENTAL DISABILITY, if such person had capacity, because
the decision is contrary to the individual's religious beliefs or
sincerely held moral convictions, provided the individual health care
provider promptly informs the guardian and the facility, if any, of his
or her refusal to honor the guardian's decision. In such event, the
facility shall promptly transfer responsibility for the [mentally
retarded] person WITH A DEVELOPMENTAL DISABILITY to another individual
health care provider willing to honor the guardian's decision. The indi-
vidual health care provider shall cooperate in facilitating such trans-
fer of the patient.
(d) Notwithstanding the provisions of any other paragraph of this
subdivision, if a guardian directs the provision of life-sustaining
treatment, the denial of which in reasonable medical judgment would be
likely to result in the death of the [mentally retarded] person WITH A
DEVELOPMENTAL DISABILITY, a hospital or individual health care provider
that does not wish to provide such treatment shall nonetheless comply
with the guardian's decision pending either transfer of the [mentally
retarded] person WITH A DEVELOPMENTAL DISABILITY to a willing hospital
or individual health care provider, or judicial review.
(e) [Nothing] EXCEPT AS PROVIDED IN PARAGRAPH (A) OF SUBDIVISION ONE
OF THIS SECTION, NOTHING in this section shall affect or diminish the
authority of a surrogate decision-making panel to render decisions
S. 5329 10
regarding major medical treatment pursuant to article eighty of the
mental hygiene law.
8. Immunity. (a) Provider immunity. No health care provider or employ-
ee thereof shall be subjected to criminal or civil liability, or be
deemed to have engaged in unprofessional conduct, for honoring reason-
ably and in good faith a health care decision by a guardian, or for
other actions taken reasonably and in good faith pursuant to this
section.
(b) Guardian immunity. No guardian shall be subjected to criminal or
civil liability for making a health care decision reasonably and in good
faith pursuant to this section.
S 7. This act shall take effect on the ninetieth day after it shall
have become a law.
