BILL NUMBER: S8395
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 to
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-a 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
capacity in hospitals as defined in the Mental Hygiene Law.
Sections 3, 4, 5, 6, 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 7 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. The current law is 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.
Section 10 of the bill contains the effective date, one hundred eighty
days after it shall have become law.
 
JUSTIFICATION:
These changes are necessary to address unnecessary complications in the
law, ensure equal treatment for patients with terminal health conditions
regardless of what type of hospital they are admitted to, and to imple-
ment the recommendations of the New York Task Force on Life and Law
Special Advisory Committee report from 2016.
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 hospital. 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 transferable,
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 OMH hospital, 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 regardi ng
comfort care. This cycle may occur multiple times before the patient can
be transferred to hospice or passes away. This scenario presents both
ethical and legal concerns for OMH staff who are faced with the decision
to pursue medical treatments for patients at the end of their life.
Lastly, the inability to OMH hospital staff to execute MOLSTs and
hospice elections for qualifying patients, pursuant to the terms of the
FHCDA which requires independent ethics review, makes it more challeng-
ing for OMH hospitals to refer and transfer patients for palliative care
services in more appropriate settings.
 
PRIOR LEGISLATIVE HISTORY:
S.7507 and S.7507-A passed the Senate in 2023 and 2024.
 
FISCAL IMPLICATIONS:
None.  
EFFECTIVE DATE:
180th day after it shall have become law.

Statutes affected:
S8395: 2994-a public health law, 2994-b public health law, 2994-b(1-a) public health law, 2994-d public health law, 2994-d(5) public health law, 2994-g public health law, 2994-g(5-a) public health law, 2994-l public health law, 2994-l(1) public health law, 2994-m public health law, 2994-m(4) public health law