BILL NUMBER: S138
SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:
An act to amend the public health law, in relation to a terminally ill
patient's request for and use of medication for medical aid in dying
 
PURPOSE:
To provide that a mentally competent, terminally ill patient may request
medication to be self-administered for the purpose of hastening the
patient's death provided the requirements set forth in the act are met,
and to provide certain protection and immunities to health care provid-
ers and other persons, including a physician who prescribes medication
in compliance with the provisions of the article to the terminally ill
patient to be self-administered by the patient.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 provides that this act shall be known and may be cited as the
"Medical Aid in Dying Act".
Section 2 amends the Public Health Law by adding a new article 28-F,
Medical Aid in Dying, comprised of the following sections:
§ 2899-d sets forth definitions.
§ 2899-e sets forth the request process by which a patient may request
medication for the purpose of ending his or her life in accordance with
this article. The patient wishing to request such medication shall make
an oral request and submit a written request, which shall be signed and
dated by the patient and witnessed by at least two adults as provided in
such section, identifying persons who shall not serve as witnesses. The
patient's domestic partner, health care proxy, power of attorney,
attending physician, consulting physician and, if applicable, the mental
health professional who provides a capacity determination of the patient
under the article shall not act as a witness.
§ 2899-f sets forth the responsibilities of the attending physician.
2899-g provides that a patient may at any time rescind a request for
medication without regard to the patient's capacity, and that the
attending physician may not write a prescription for medication without
first offering the patient an opportunity to rescind the request.
§ 2899-h sets forth the responsibilities of the consulting physician.
§ 2899-i provides that if the attending physician or the consulting
physician determines that the patient may lack capacity to make an
informed decision due to a condition, including, but not limited to, a
psychiatric or psychological disorder, or other condition causing
impaired judgment, such physician shall refer the patient to a mental
health professional for a determination of whether the patient has
capacity. If the mental health professional determines that the patient
lacks capacity to make an informed decision, the patient shall not be
deemed a qualified individual and the attending physician shall not
prescribe medication to the patient. A determination made pursuant to
this section that an adult patient lacks decision-making capacity shall
not be construed as a finding that the patient lacks capacity for any
other purpose.
§ 2899-j sets forth the items that must be documented or filed in the
patient's medical record.
§ 2899-k sets forth the form of written request for medication and
declaration of witnesses. The section also provides that the written
request shall be written in the same language as any conversations or
consultations between a patient and at least one of his or her attending
or consulting physicians, provided that the written request may be in
English, even if the conversations or consultations were conducted in a
language other than English, if the form of written request includes the
form of interpreter's declaration set forth in the section.
§ 2899-1 provides that a physician, pharmacist, other health care
provider or other person shall not be subject to civil, administrative
or criminal liability, penalty or professional disciplinary action by
any government entity for taking any reasonable good-faith action or
refusing to act under the article, including without limitation, engag-
ing in discussions with apatient relating to the risks and benefits of
end-of-life options in the circumstances described in the article and
being present when a qualified individual self-administers medication.
The section further provides that nothing in the section shall limit
civil, administrative or criminal liability for negligence, recklessness
or intentional misconduct.
§ 2899-m provides that a physician, nurse, pharmacist, other health care
provider or other person shall not be under any duty by law or contract
to participate in the provision of medication to a patient. If a health
care provider is unable or unwilling to participate in the provision of
medication to a patient and the patient transfers care to a new health
care provider, the prior health care provider shall transfer or arrange
for the transfer, upon request, of a copy of the patient's relevant
medical records to the new health care provider. A private health care
facility may prohibit the prescribing, dispensing, ordering or self-ad-
ministering of medication under the article while the patient is being
treated in or while the patient is residing in such facility if the
requirements set forth in the section have been met. In addition, where
a health care facility has adopted a prohibition under the subdivision,
if a patient who wishes to use medication under the article requests,
the patient shall be transferred promptly to another health care facili-
ty that is reasonably accessible under the circumstances and willing to
permit the prescribing, dispensing, ordering or self-administering of
medication with respect to the patient. Where a health care facility has
adopted a prohibition under the subdivision, any health care provider or
employee of the facility who violates'the prohibition may be subject to
sanctions otherwise available to the facility, provided the facility has
previously notified the health care provider or employee of the prohibi-
tion in writing.
§ 2899-n provides that (i) a patient who requests medication under the
article will not, because of that request, be considered a person who-is
suicidal, and self-administering medication under the article shall not
be deemed to be suicide for any purpose, (ii) action taken in accordance
with the article shall not be construed for any purpose to constitute
suicide, assisted suicide, attempted suicide, promoting a suicide
attempt, mercy killing, or homicide under the law, including as an
accomplice or accessory or otherwise, (iii) no provision in a contract
or other agreement or testamentary instrument, whether written or oral,
to the extent the provision would affect whether a person may make or
rescind a request for medication or take any other action under the
article, shall be valid, (iv) no obligation owing under any contract,
other agreement or testamentary instrument will be conditioned upon or
affected by the making or rescinding of a request by a person for medi-
cation or taking any other action under the article, (v) aperson and his
or her beneficiaries shall not be denied benefits under a life insurance
policy for actions taken in accordance with the article, and the sale,
procurement or issuance of a life insurance or annuity policy or third-
party health care payer policy or coverage or the rate charged for the
policy or coverage shall not be conditioned upon or affected by the
patient pinking or rescinding a request for medication under the arti-
cle, (vi) an insurer shall not provide any information in communications
made to a patient about the availability of medication under the article
absent a request by the patient or by his or her attending physician
upon the request of such patient, and any communication shall not
include both the denial of coverage for treatment and information as to
the availability of medication under the article, and (vii) the sale,
procurement or issue of any professional malpractice insurance policy or
the rate charged for the policy shall not be conditioned upon or
affected by whether the insured does or does not take or participate in
any action under the article.
§ 2899-o provides that the department of health shall make regulations
providing for the safe disposal of unused medications prescribed,
dispensed or ordered under the article.
§ 2899-p provides that if otherwise authorized by law, the attending
physician may sign the qualified individual's death certificate. The
cause of death listed on a qualified individual's death certificate who
dies after self-administering medication under the article will be the
underlying terminal illness.
§ 2899-q provides for the annual review by the commissioner of health of
a sample of the records maintained under section twenty-eight hundred
ninety-nine-j and twenty-eight hundred ninety-nine-p of the article. The
commissioner shall adopt regulations establishing reporting requirements
for physicians taking action under the article to determine utilization
and compliance with the article. The information collected under the
section shall not constitute a public record available for public
inspection and shall be confidential and shall be collected and main-
tained in a manner that protects the privacy of the patient, his or her
family, and any health care provider acting in connection with such
patient under the article, except that such information may be disclosed
to a governmental agency as authorized or required by law relating to
professional discipline, protection of public health or law enforcement.
The commissioner shall prepare a report annually containing relevant
data regarding utilization and compliance with the article and shall
send such report to the legislature and post such report on its website.
§ 2899-r provides that nothing in the article shall be construed to
limit professional discipline or civil liability resulting from conduct
in violation of the article, negligent conduct, or intentional miscon-
duct by any person. Conduct in violation of the article shall be subject
to applicable criminal liability under state law, including where appro-
priate and without limitation, offenses constituting homicide, forgery,
coercion, and related offenses, or federal law.
§ 2899-s provides the severability clause. Section 3 sets forth the
effective date.
 
JUSTIFICATION:
The highly publicized, planned death of Brittany Maynard has highlighted
the need for terminally ill patients to be able to access aid in dying.
Ms. Maynard, who was a native of California, was forced to move to
Oregon to gain control of her dying process. Her death, and the accompa-
nying press attention, led the California legislature to pass, and
Governor Jerry Brown to sign, an aid in dying law on October 5, 2015.
The national debate that accompanied Ms. Maynard's plight focused the
nation on the desire of patients with a terminal illness to determine
for themselves - how and when they die. These patients, when mentally
competent, should be afforded this right. Patients should not be forced
to relocate to another state or to leave the country to control how
their lives end. Patients seek to die with dignity, on their own terms,
typically in their own homes, surrounded by their family and other loved
ones.
New Yorkers strongly support empowering terminally-ill, mentally compe-
tent patients to control their own death. A 2015 poll found that 77% of
all New Yorkers support aid in dying, including 75% of Catholics, 72% of
Republicans, 67% of self-identified Conservatives, and 78% of New York-
ers upstate.
Nationally, according to HealthDay/Harris poll findings released in
December 2014, 74% of American adults believe that terminally ill
patients in great. pain should have the right to end their lives (14%
were opposed). Gallup, which has been polling this issue since 1947, has
found that a majority of Americans have supported aid in dying since
1973. Their most recent poll found 68% of Americans support aid in
dying. Similar results were found in a recent survey of Americans by
LifeWay Research (69% of those polled agree that physicians should be
allowed to assist terminally ill patients in ending their life and 67%
agree that it is morally acceptable for a person to ask for a physi-
cian's aid in taking his or her own life.) Physicians also support aid
in dying. In a recent survey conducted by Medscape, 54% of physicians in
the U.S. believe that aid in dying should be permitted, while only 31%
opposed it. The Medical Aid in Dying Act will enable mentally competent,
terminally ill patients to choose to self-administer medication to bring
about a peaceful death. It also provides their physician, when acting in
good faith in accordance with the provisions of the Act, protections
from civil and criminal liability and professional disciplinary action.
At least seven states - Oregon, Vermont, Washington, California, Monta-
na, New Jersey and Colorado - allow physician assisted aid in dying.
More than 65% of Colorado voters approved the ballot initiative to
provide for aid in dying. Not only did the mayor of the District of
Columbia signed a medical aid in dying act, but legislators in multiple
states throughout the nation have aid in dying bills pending.
Aid in dying legislation is supported by the American Public Health
Association, the American Medical Women's Association, the American
Medical Student Association, the American College of Legal Medicine, and
Lamda Legal.
 
LEGISLATIVE HISTORY:
S.2445 of 2023-2024 (Hoylman-Sigal): Died in Health
A.995 of 2023-2024 (Paulin): Died in Health
A.4321-A of 2020-21 (Paulin): Died in Health
S.6471 of 2021-22 (Savino): Died in Health
2019-20: A.2694,Referred to Health /S.3947,Referred to Health
2017-18:A.2383-A, Referred to Health / S.3151-A, Referred to Health
2016: A.10059, Referred to Codes / S.7579, Referred to Health
 
FISCAL IMPLICATIONS:
None to the State.
 
EFFECTIVE DATE:
This act shall take effect immediately.