N.Y. Comp. Codes R. & Regs. tit. 14 § 710.4

Current through Register Vol. 46, No. 50, December 11, 2024

Section 710.4 - Applications to the Surrogate Decision-Making Committee

(a) Applications to the surrogate decision-making committee must include a declaration setting forth the declarant's reasons for the beliefs that:

1) the patient lacks the capacity to consent to a proposed treatment,

2) there is no available and willing surrogate to make the decision, and

3) the proposed treatment serves the patient's best interests; and supporting documents, if necessary, as set forth in this Part.

(b) Declaration in support of surrogate decision-making

(1) A declarant may file the declaration on behalf of any qualifying patient, as defined in article 80 of the MHL and article 17-A of the SCPA.

(2) For declarations regarding major medical treatment decisions pursuant to article 80 of the MHL, the declaration must be made in writing and include, inter alia, the following:

(i) a brief description of the proposed major medical treatment;

(ii) a statement that the patient does not have a parent, spouse, adult child, legal guardian or other surrogate who is legally authorized, available and willing to make the major medical treatment decision; the factual basis for such a statement; and the efforts made to contact such persons;

(ii) a description of the patient's opinion or reaction, if any, when the proposed major medical treatment decision was explained;

(iii) the reasons for believing that the patient lacks the capacity to make the major medical treatment decision; and

(iv) a statement of the declarant's opinion of whether the best interests of the patient would be promoted by such treatment decision and the basis for the opinion.

(3) For declarations regarding decisions to withhold or withdraw life-sustaining treatment, pursuant to article 17-A of the SCPA, the declaration must be made in writing and include, inter alia, the following:

(i) a statement that the patient does not have a parent, spouse, adult child, legal guardian or other surrogate who is legally authorized, available and willing to make the decision to withhold or withdraw life-sustaining treatment; the factual basis for such a statement; and the efforts made to contact such persons;

(ii) a description of the proposed life-sustaining treatment to be withheld or withdrawn;

(iii) a description of the efforts to determine the moral and religious beliefs of the patient, and such beliefs, if known;

(iv) a description of the patient's opinion or reaction, if any, when the proposed withholding or withdrawing of life-sustaining treatment was explained;

(v) the reasons for believing that the patient lacks capacity to provide informed consent; and

(vi) a statement of the declarant's opinion whether the best interests of the patient would be promoted by such decision and the basis for that opinion.

(4) The declaration shall be signed and dated by the declarant, stating that the information on the declaration is true to the best of the declarant's knowledge.

(5) A declaration regarding a minor patient must indicate whether the patient's parents are deceased, or have had their parental rights terminated, or have waived their right to make the decision.

(c) Supporting documents

(1) For applications regarding major medical treatment decisions, the following documents must be submitted along with the declaration:

(i) A statement completed, signed and dated by a psychiatrist or psychologist duly licensed by the State of New York, providing the factual basis and professional opinion that the patient lacks the capacity to make the major medical treatment decision.

(ii) A statement completed, signed and dated by a physician, podiatrist, or dentist including:

(A) a description of the proposed major medical treatment decision and the patient's medical, podiatric, or dental condition which requires such treatment decision indicating the date of diagnosis;

(B) the risks and benefits to the patient of the proposed treatment decision and any alternative treatments including consideration of non-treatment;

(C) a statement whether the patient has any medical, podiatric, or dental condition which would prevent his or her travel to or presence at the panel hearing and a description of such condition; and

(D) a statement whether there is a need for an expedited review including the factual and medical justification for such a review.

(iii) A statement completed, signed and dated by someone responsible for the patient's medical chart providing supplemental medical information including:

(A) a description of the current medications of the patient, any known allergies, the dates of the last physical examination, EKG, chest X-ray, and laboratory workup;

(B) a history of any cardiac or pulmonary disease and any other major illness or surgery within the previous year; and

(C) a statement of any known primary or secondary physical conditions.

(iv) Any other information that may be necessary to determine the need for such treatment decision, including a copy of a of any pertinent evaluation or data regarding the patient.

(2) For applications regarding decisions to withhold or withdraw life-sustaining treatment, the following documents must be submitted with the declaration:

(i) A certification on capacity, as required by section 1750-b of the SCPA, including:

(A) A statement completed, signed and dated by the attending physician, certifying that to a reasonable degree of medical certainty the patient lacks capacity to make health care decisions, and stating the attending physician's opinion as to the cause and nature of the incapacity and its extent and probable duration;

(B) A statement completed, signed and dated by a consulting physician or psychologist, providing the factual basis and professional opinion that such patient lacks the capacity to make the end-of-life decision;

(C) A statement that either the attending physician or consulting physician or psychologist:

(I) is employed by a developmental disabilities services office named in section 13.17 of the MHL or employed by OPWDD to provide treatment and care to people with developmental disabilities;

(II) has been employed for a minimum of two years to render care and service in a facility or program operated, certified or authorized by OPWDD;

(III) has been approved by the commissioner of OPWDD; or

(IV) otherwise satisfies the statutory requirements of section 1750-b.

(ii) A certification on the appropriateness of withdrawal or withholding of life-sustaining treatment, completed, signed and dated by the attending physician and including:

(A) The risks and benefits of withholding or withdrawing life-sustaining treatment, taking into consideration the extraordinary burdens to the patient of providing life-sustaining treatment in light of the patient's:

(I) medical condition, other than such patient's developmental disability; and

(II) the expected outcome of providing life-sustaining treatment, notwithstanding the patient's developmental disability, and whether there are any alternative treatments available to the patient; and

(III) in the case of a decision to withdraw or withhold artificially provided nutrition or hydration, a certification that there is no reasonable hope of maintaining life, or a certification that the artificially provided nutrition or hydration poses an extraordinary burden.

(B) A statement that to a reasonable degree of medical certainty the patient has a medical condition that is:

(I) a terminal condition in that the patient has an illness or injury from which there is no recovery and which reasonably can be expected to cause death within one year;

(II) permanent unconsciousness; or

(III) a medical condition other than the patient's developmental disability, which requires life-sustaining treatment, is irreversible and which will continue indefinitely.

(C) A statement whether there is a need for an expedited review including the factual and medical justification for such a review; and

(iii) A statement completed, signed and dated by someone responsible for the patient's medical chart, providing supplemental medical information including:

(A) a description of the current medications of the patient, any known allergies, the dates of the last physical examination, EKG, chest X-ray, and laboratory workup; and

(B) a history of any cardiac or pulmonary disease and any other major illness or surgery within the previous year; and

(C) a statement of any known primary or secondary physical conditions.

(iv) A certification on the appropriateness of withdrawal or withholding of life-sustaining treatment, completed, signed and dated by the consulting physician or psychologist, and including all the required information as defined above for the attending physician's certification on the appropriateness of withdrawal or withholding of life-sustaining treatment.

(3) In the event that confidential information regarding acquired immune deficiency syndrome (AIDS), an infection with HIV, or related virus or illness is relevant to the panel's review, such information will be submitted to the committee as a supplemental statement or statements as authorized by PHL section 2782(1)(a).

(d) The declaration and supporting documents must be filed with the surrogate decision-making committee program staff to initiate the review of the request on behalf of a patient.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.4

Renumbered from 710.3 New York State Register September 26, 2018/Volume XL, Issue 39, eff. 11/28/2018