BILL NUMBER: S1965
SPONSOR: RIVERA
 
TITLE OF BILL:
An act to amend the public health law and the surrogate's court proce-
dure act, in relation to restoring medical futility as a basis for both
surrogate consent to a do not resuscitate order and for a do not resus-
citate order for a patient without a surrogate
 
PURPOSE:
Restores medical futility as a basis for do not resuscitate orders.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 describes the intention of the legislation which is to rees-
tablish the basis for do not resuscitate orders based on medical futili-
ty.
Section 2 amends subparagraphs (i) and (ii) of paragraph (a) of subdivi-
sion 5 of section 2994-d of the Public Health Law (PHL), as it relates
to orders not to resuscitate. With respect to a decision of a do not
resuscitate order, decisions to withhold or withdraw life-sustaining
treatment can be made if an attending physician determines resuscitation
would be unsuccessful in restoring cardiac and respiratory function or
that the patient will experience repeated arrest in a short time period
before death occurs.
Section 3 amends paragraph (b) of subdivision 5 of section 2994-g of PHL
as it relates to orders not to resuscitate. According to this section,
an order not to resuscitate may be entered for an adult patient who has
been determined to lack decision-making capacity if the patients enters
cardiac or respiratory arrest and if resuscitation will be unsuccessful
in restoring cardiac and respiratory function or that the patient will
experience repeated arrest in a short time period before death occurs.
Section 4 amends subparagraph (i) and (ii) of paragraph (b) of subdivi-
sion 4 of section 1750-b of the Surrogate's Court Procedure Act as it
relates to orders not to resuscitate terminally ill patients. This
section adds a definition for the term 'terminally ill' as an illness or
injury from which there is no recovery and which can reasonably be
expected to cause death within one year. The added definition of 'termi-
nally ill' also includes, in the case of a decision to enter an order
not to resuscitate, that in the event of cardiac or respiratory arrest
such resuscitation would be unsuccessful in restoring cardiac and
respiratory function or that the patient will experience repeated arrest
in a short time period before death occurs.
Section 5 provides an effective date.
 
JUSTIFICATION:
For over 20 years under the former do not resuscitate (DNR) law (PHL Art
29-8), a surrogate could consent to a DNR order if the patient met
anyone of four clinical criteria, one of which being a finding by two
physicians that resuscitation "will be unsuccessful in restoring cardiac
and respiratory function or that the patient will experience repeated
arrest in a short time period before death occurs." The former DNR law
also allowed a DNR order to be entered on that basis for a patient who
did not have a surrogate. That law applied to all patients, including
developmentally disabled patients.
The Family Health Care Decision Act (FHCDA), in contrast, establishes
standards for the withdrawal or withholding of a broad range of life
sustaining treatment. Accordingly it does not have a standard specif-
ically relating to medically futile resuscitation. Chapter 8 of the laws
of 2010 made the FHCDA apply to DNR orders for most patients in hospi-
tals and nursing homes.
Similarly, SCPA § 1750-b does not have a standard specifically relating
to medically futile resuscitation. Chapter 8 of the laws of 2010 made
SCPA § 1750-b apply to DNR orders for developmentally disabled patients.
This loss of the long-established "medical futility" grounds for a DNR
was inadvertent. Experience has shown that the broader FHCDA and SCPA §
1750-b standards, especially the standards for patients who do not have
surrogates, can be difficult to apply to decisions about resuscitation.
This bill would restore the former DNR law's medical futility standard
as an alternative basis for writing a DNR order under the FHCDA and
under SCPA § 1750-b, with the addition of nurse practitioners to conform
with Chapter 430 of 2017, which added them as eligible practitioners to
execute DNRs.
 
LEGISLATIVE HISTORY:
2019-2020: S5762A/A1203 Gottfried
2021-2022: S4684/A204 Gottfried
2023-2024: S2894/A7178 Dinowitz
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.

Statutes affected:
S1965: 2994-g public health law, 2994-g(5) public health law