BILL NUMBER: S7507A
SPONSOR: BROUK
 
TITLE OF BILL:
An act to amend the public health law, in relation to orders not to
resuscitate and decisions regarding life-sustaining treatment and
hospice care
 
PURPOSE OF THE BILL:
The purpose of the bill is to enable the execution of medical orders for
life-sustaining treatment (MOLSTs) for all inpatients receiving care in
Office of Mental Health (OMH) operated or licensed hospitals and clarify
various provisions of the Family Health Care Decisions Act (FHCDA) to
effectuate this purpose.
 
SUMMARY OF PROVISIONS:
Section 1 of the bill amends Subdivision 18 of section 2994-a of the
public health law to add a definition of Mental hygiene hospital.
Section 2 amends Subdivision 1-a of Section 2994-B of the public health
law to make the FHCDA applicable to decisions regarding life sustaining
treatment, other than do not resuscitate or intubate (DNR or DN1) deci-
sions, and hospice care for patients in hospitals as defined in the
Mental Hygiene Law. Currently, there is no provision for the execution
of such orders, other than DNRs and DNIs for individuals who lack capac-
ity in hospitals as defined in the Mental Hygiene Law. The current law
is also unclear regarding whether medical orders for life sustaining
treatment executed in hospitals pursuant to the terms of the FHCDA are
transferrable for individuals when they are transferred to hospitals as
defined in the Mental Hygiene Law.
Sections 3, 4, 5, 7,8, and 9 of the legislation would add hospitals as
defined in the Mental Hygiene law to relevant provisions of Article
29-CC of the public health law, the Family Health Care Decisions Act.
Section 6 of the legislation would clarify that the procedure for the
review and continuation or cancellation of medical orders for life
sustaining treatment already contained in the FHCDA would also apply
when an individual is transferred to or from a hospital as defined in
the Mental Hygiene Law.
Section 10 of the bill contains the effective date.
 
JUSTIFICATION:
These changes are necessary to address unnecessary complications in the
law, treat similarly situated patients with terminal health conditions
the same regardless of what type of hospital they are admitted to, and
to implement the recommendations of the New York Task Force on Life and
Law Special Advisory Committee report from 2016, available at:
https://www.health.ny.gov/regulations/task_force/reports_publications/
docs/2016-06_recommendations_for_amending_fhcda.pdf.
Current statutes do not enable the execution of MOLSTs or hospice
election forms for patients of OMH facilities who lack capacity and do
not have a properly empowered guardian or health care proxy to perform
surrogate decision-making. Additionally, for OMH hospital patients for
whom a MOLST has been executed while the patient was transferred to a
DOH facility, there currently is no formal, legal mechanism for the
transfer and continued applicability of these orders when the patient
returns to the OMH facility. Presently, the transferability of such
orders depends on an interpretation that the legislature's intent in
enacting the FHCDA was for such orders to transfer with an individual to
any setting. However, because hospitals as defined in the Mental
-Hygiene Law are not included in the provisions of the FHCDA regarding
orders other than DNR and DNIs, it is unclear if all orders are trans-
ferrable, or only the DNR or DNI.
These changes will also ensure that individuals in hospital settings are
treated equally, regardless of their health status and with appropriate
dignity when they are terminally ill and where lifesaving or life-sus-
taining treatments would pose an extraordinary burden.
For example, under the current legal framework, a common fact pattern
emerges: A patient of a hospital operated or licensed by OMH is trans-
ferred to a DOH licensed hospital for medical treatment and the hospi-
tal, either in conjunction with a FHCDA surrogate or on their own accord
pursuant to the FHCDA, determines that it is appropriate to execute a
MOLST if the patient is terminally ill and the treatment would be an
extraordinary burden. The MOLST includes orders not to resuscitate or
intubate the patient and to provide comfort care measures only. The
patient is stabilized and returned to the OMH hospital with these
orders. Under applicable law, upon their return to the OMH hospital,
since an OMH hospital cannot execute medical orders for life-sustaining
treatment or other comfort care measures and the FHCDA does not provide
for the transferability of the entire order to the facility, only the
DNR and DNI orders may be continued at the facility. As a result, the
OMH hospital may be required to provide life-sustaining treatments or
transport the patient back to the DOH hospital for such treatment, even
though this treatment may provide no benefit to the patient, because the
OMH hospital cannot rely on the hospital order regarding c omfort care.
This cycle may occur multiple times before the patient can be trans-
ferred to hospice or passes away.
 
PRIOR LEGISLATIVE HISTORY:
None.
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day.

Statutes affected:
S7507: 2994-a public health law, 2994-a(18) public health law, 2994-l public health law, 2994-ff public health law
S7507A: 2994-a public health law, 2994-b public health law, 2994-b(1-a) public health law