BILL NUMBER:S7150A

TITLE OF BILL:  An act to amend the public health law, in relation to
providing for a decision regarding hospice care on behalf of a
hospice-eligible incapable adult patient without a surrogate; and to
repeal paragraph (c) of subdivision 5 of section 2994-g of such law
relating thereto

PURPOSE:

This bill addresses a gap in the Family Health Care Decisions Act (PHL
Article 29-cc) by authorizing decisions regarding hospice for
hospice-eligible incapable adult patients without surrogates.

SUMMARY OF PROVISIONS:

Section 1 of the bill amends NY Public Health Law § 2994-g, a section
of the Family Health Care Decisions Act (FHCDA) relating to health
care decisions for adult patients without surrogates, by adding a new
subdivision 7 entitled "Decisions to elect hospice." New subdivision 7
sets forth a process for an attending physician to elect hospice for
an incapable hospice-eligible adult patient without a surrogate.

The attending physician must make a recommendation in consultation
with staff directly responsible for the patient's care, and must base
his or her recommendation on the standards for surrogate decisions set
              

forth PHL § 2994d, another section of the FHCDA.

The decision also requires the concurring opinion of a second
physician, subject to certain requirements, and the review and
approval of the ethics review committee of the general hospital,
residential healthcare facility or hospice, as applicable, subject to
certain requirements.

Section 2 makes a technical change to repeal paragraph¸ of subdivision
5 of section 2994-g of the Public Health Law which is no longer
necessary.

Section 3 provides for an immediate effective date.

JUSTIFICATION:

The Family Health Care Decisions Act (Public Health Law Article 29-CC)
governs health care decisions for patients who lack capacity and who
did not appoint a health care agent. Initially, the FHCDA applied only
to patients in hospitals and nursing homes. In 2011, based on
recommendations of the NYS Task Force on Life and the' Law, the FHCDA
was amended to apply to decisions for hospice patients as well.

Section 2994-g of the FHCDA governs decisions for incapable adult
patients who do not have a guardian, family member or friend to act as
their surrogate. Specifically, it provides a mechanism for securing
decisions regarding (i) routine medical treatment; (ii) major medical
treatment decision and (iii) the withholding or withdrawal of
life-sustaining treatment.


However, Section 2994-g does not expressly create a means to elect
hospice on behalf of hospice-eligible incapable adult patients. Such
decisions do not comfortably fall within the statutory categories
"routine medical treatment," "major medical decision" or "withdrawal
or withholding of life-sustaining treatment."

As a result, isolated, incapable dying adult patients are deprived of
the comfort and benefit of hospice care toward the end of life.
Health care professionals are dismayed by the inability to provide the
type and level of care they would recommend if the patient had a
surrogate.

This bill would address that gap by creating a process to secure an
election for hospice for a hospice-eligible incapable adult patient.

The process requires:

*a determination if incapacity in accordance with the provisions of
the FHCDA

*a recommendation by the attending physician in accordance with the
decision-making standards of the FHCDA. Those standards, in addition
to including clinical criteria, provide that the decision must be
made:

(i) in accordance with the patient's wishes, including the patient's
religious and moral beliefs; or

(ii) if the patient's wishes are not reasonably known and cannot with
reasonable diligence be ascertained, in accordance with the patient's
best interests .. . . (b) In all cases, the surrogate's assessment of
the patient's wishes and best interests shall be patient centered;
health care decisions shall be made on an individualized basis for
each patient, and shall be consistent with the values of the patient,
including the patient's religious and moral beliefs, to the extent
reasonably possible.

*a concurring opinion by another physician

*approval by the hospital, nursing home or hospice ethics committee,
as applicable.

The physician may also include in the hospice plan of care provisions
for the withdrawal or withholding of life-sustaining treatment (e.g.,
a DNR order), in accordance with the clinical and decision-making
standards that would apply to a surrogate decision under the FHCDA.
Such orders are often consistent with the hospice election.

This bill will make it possible for hospice-eligible dying isolated
incapable patients to be enrolled in hospice programs.

LEGISLATIVE HISTORY:

New bill

FISCAL IMPLICATIONS:


None.

EFFECTIVE DATE:

This act shall take effect immediately.