N.Y. Comp. Codes R. & Regs. tit. 14 § 710.5

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

Section 710.5 - Procedures of the surrogate decision-making committee program and panels

(a) Upon receipt of the declaration, the procedures of the program staff are as follows:

(1) The program staff or its designee shall send a copy of the declaration to the following interested parties as set forth in the declaration: the patient, the patient's parent, spouse, adult child, legal guardian, other authorized surrogate, correspondent, if known; the director of the patient's residential facility or such director's designee; and the Mental Hygiene Legal Services (MHLS) departmental office that serves the same region as the patient's county of residence.

(i) certified mail, return receipt requested; or

(ii) by any other means wherein an admission of receipt is obtained in writing; or

(iii) by any other means wherein consent to receipt of the declaration by such means was obtained and the individual obtaining such consent documents the date and time of the consent, means of transmission or delivery and the consenting individual in the panel's record of the proceedings; or

(iv) special mail service by express mail or use of any special delivery service wherein a receipt or record of deposit is prepared and maintained as part of the record; or

(v) first class mail when a record of deposit is prepared and maintained as part of the record.

(2) Copies of the declaration shall be sent along with a notice of hearing which shall inform recipients of the procedures of the panel, including the opportunity for the recipient to be present and to be heard.

(3) A patient's parent, spouse, adult child, legal guardian, other authorized surrogate, or correspondent who does not respond to the notice or who submits a signed waiver for the proceeding shall be deemed to be willing to allow the panel to proceed; provided, however, that parents of minors who have not had their parental rights terminated must submit a waiver to indicate their willingness to allow the panel to consider the declaration.

(4) The hearing shall be scheduled no earlier than five days after the notice of hearing is sent by the program staff to the interested parties set forth in (a)(1) of this section, except where medical or dental circumstances require a more immediate hearing, or where consent to conduct a more immediate hearing has been obtained from all of the interested parties. When the interested parties have consented to a more immediate hearing, a hearing shall be scheduled at the earliest convenience.

(5) The program staff shall assign the declaration to one of the committee's panels and shall send a copy of the declaration and any supporting documents to the members of the designated panel. Confidential information regarding AIDS, HIV infection or related virus or illness shall be sent to the panel and to MHLS on behalf of the patient. Such confidential information shall also be sent to any other person only if necessary to provide for appropriate review by the committee; provided, however, that any such disclosure shall include a notice of the confidential nature of the information and the penalties for unauthorized disclosure as provided for by PHL article 27-F.

(6) The panel proceedings may be conducted with only three persons. Provided, however, if a program staff receives reasonable notice at least 48 hours prior to the hearing that a panel member will not be able to attend a panel hearing, program staff shall take reasonable steps to secure an appropriate replacement panel member.

(i) Repealed.

(ii) Repealed.

(7) Prior to the date of the hearing, the declaration shall be preliminarily reviewed by program staff to ascertain whether additional information may be necessary to assist the panel in determining the patient's need for surrogate decision-making and in determining whether the patient's best interests will be served by the proposed major medical treatment or end-of-life decision on the patient's behalf. The program staff may request and shall, notwithstanding any other law to the contrary, be entitled to receive from any physician, mental hygiene facility, health care facility or person licensed to render health care, any information which is relevant to the patient's need for surrogate decision-making or the proposed decision. Such information may include, among other things: facts regarding the patient's parents, spouse, adult child, legal guardians, or other authorized surrogates; facts and professional opinions regarding the patient's capacity to make the proposed decision; and facts and professional opinions regarding whether the proposed major medical treatment decision is in the patient's best interests.

(b) The general procedures of the hearing are as follows:

(1) The hearing shall be conducted by the panel. Recipients of the declaration, as well as any other person requested by the patient to appear on his or her behalf, shall have the right to be present and be heard.

(2) The facility where the patient resides shall, to the extent possible, ensure the presence of the patient at the hearing unless the declaration contains a certification by a physician, podiatrist, or dentist that the patient is unable for medical reasons to attend the hearing or unless it is a declaration regarding the withdrawal or withholding of life-sustaining treatment. To the extent practicable, the patient should be accompanied by a person who is personally familiar with the patient, his or her condition and his or her history. If the patient is unable to attend the hearing or if it is a declaration regarding the withdrawal or withholding of life-sustaining treatment, the panel members shall either personally observe and interview the patient, or the program staff or a designee shall designate at least one panel member to observe and interview the patient prior to the commencement of the hearing.

(3) The panel shall be empowered to administer oaths to and to take testimony from any person who might assist the panel in making its decision.

(4) The panel shall be empowered to conduct its proceeding via telephone conference calls in appropriate cases, including but not limited to cases in which:

(i) the conference call proceeding appears to be more appropriate to meet the needs of the patient for timely decision-making as determined by the circumstances.

(ii) the conference call proceeding may afford the opportunity to consult with a person who may assist in the panel's determinations;

(iii) the panel determination that a patient is in need of surrogate decision-making for the proposed major medical treatment decision has expired, and a request is made to renew and extend the effective date of the determination;

(iv) the conference call proceeding may provide timely receipt and consideration of information concerning any changed circumstances, new conditions, or information and application for additional surrogate decision-making related to the major medical treatment decision which was the subject of an initial hearing and surrogate decision-making determination; provided however a conference call or additional hearing shall not be required for procedures which are related diagnostic, medical, or dental procedures that are normal and customary in accordance with sound medical practice and thereby included within an original determination that has not expired;

(5) Confidential information regarding AIDS, HIV infection or related virus or illness may be disclosed as determined by the panel during the hearing if relevant to the determination of capacity or determination of need for major medical treatment; provided, however, that participants shall be provided with a notice of the confidential nature of the information and the penalties for unauthorized disclosure as provided for by article 27-F of the PHL.

(6) Formal rules of evidence shall not apply to the panel proceedings.

(7) If at any time during the pendency of a proceeding, a patient, parent, spouse, adult child, legal guardian, or other surrogate who is legally authorized to consent to or refuse such treatment on the patient's behalf, objects to the panel acting upon the declaration, the proceedings regarding such patient shall cease. Any such person's objection shall be made part of the record.

(8) When the proposed major medical treatment decision consists of more than one medical, surgical or diagnostic intervention or procedure, the panel shall be empowered to consider and give or refuse consent for each proposed intervention or procedure separately. If the panel gives consent for one or more, but not all, of the proposed interventions or procedures, the panel's record of its determination shall indicate consent or refusal for each intervention or procedure separately.

(9) When the proposed end-of-life decision consists of more than one medical, surgical or diagnostic intervention or procedure, the panel shall be empowered to consider and give or refuse consent for each proposed intervention or procedure separately. If the panel gives consent for one or more, but not all, of the proposed interventions or procedures, the panel's record of its determination shall indicate consent or refusal for each intervention or procedure separately.

(10) Where practicable, the panel shall reach its determination immediately and provide a copy of the determination to the interested parties immediately after the hearing. Notice of this determination may be given by any means that will provide timely or reliable notice. The giving of such notice shall be made part of the record.

(11) At the hearing, the panel shall be empowered to:

(i) order an independent assessment of the patient, or order information concerning the patient, including obtaining an independent opinion, where such independent assessment or opinion is determined to be necessary by the panel chairperson; or

(ii) consult with any other person who might assist in such a determination of the best interests of the patient, including ascertainment of the personal beliefs and values of the patient.

(12) Nothing in this section shall be interpreted to authorize ex parte communications during the hearing or consideration of materials, information, or opinions not presented formally at the hearing.

(c) The panel's determination of the patient's need for surrogate decision-making shall be made in accordance with the following provisions:

(1) In hearings regarding proposed major medical treatment decisions, the panel shall determine whether there is clear and convincing evidence that the patient: lacks the capacity to make the proposed major medical treatment decision; and does not have a parent, spouse, adult child, other authorized surrogate, or legal guardian, who is legally authorized, available and willing to make such a decision. Clear and convincing evidence is evidence that is highly reliable and upon which reasonable persons may rely with confidence in the probability of its correctness.

(2) In determining whether the patient lacks the capacity to make the proposed major medical treatment decision, the panel shall consider whether the patient is unable to adequately understand and appreciate the nature and consequences of the proposed major medical treatment decision, including:

(i) the burdens of the treatment to the patient in terms of pain and suffering outweighing the benefits, or whether the proposed treatment would merely prolong the patient's suffering and not provide any net benefit;

(ii) the degree, expected duration and constancy of pain with and without treatment, and the possibility that the pain could be mitigated by less intrusive forms of medical treatment including the administration of medications;

(iii) the likely prognosis, expectant level of functioning, degree of humiliation, and dependency with or without the proposed major medical treatment; and

(iv) the evaluation of treatment options, including non-treatment, and their benefits and risks compared to those of the proposed major medical treatment decision.

(3) In hearings regarding the proposed withholding or withdrawal of life-sustaining treatment, the panel shall determine whether there is clear and convincing evidence as defined in (c)(1) of this section that the patient is in need of surrogate decision-making by considering the certification by the attending physician and the consulting physician or licensed psychologist as set forth in Part 710.4(c)(2) and considering each of the factors set forth in the declaration.

(4) Unless three panel members concur in the determination that the patient is in need of surrogate decision-making, the patient shall be deemed not to need surrogate decision-making.

(5) In the event that the patient is deemed not to need surrogate decision-making because he or she has the capacity to consent on his or her own behalf, patient consent to or refusal of such treatment, if given, shall constitute legally valid consent or refusal therefor. No other consent shall be required by a provider of health services.

(d) The panel's determination regarding the appropriateness of the proposed health care decision shall be made in accordance with the following provisions:

(1) In a hearing regarding proposed major medical treatment, if a patient has been determined by the panel to be in need of surrogate decision-making, the panel shall make a determination whether the proposed major medical treatment is in the best interests of the patient based upon a fair preponderance of the evidence. A fair preponderance of the evidence is evidence that an issue is more likely true than not.

(2) In a hearing regarding the proposed withholding or withdrawal of life-sustaining treatment, if a patient has been determined by the panel to be in need of surrogate decision-making, the panel shall make a determination whether the proposed end-of-life decision is in the best interests of the patient based upon a fair preponderance of the evidence as defined in (d)(1) of this section. Decisions to withhold or withdraw life-sustaining treatment pursuant to section 1750-b of the SCPA shall include consideration of the following additional factors:

(i) the panel decision is not intended to permit suicide, assisted suicide or euthanasia;

(ii) the panel decision shall be based on the patient's qualifying medical condition, other than developmental disability, with recognition that a person with developmental disability is entitled to full and equal rights, equal protection, respect, medical care and dignity afforded to persons without developmental disabilities and without any financial considerations as such may affect the health care provider or any other party.

(3) Any evidence of an articulated preference by the patient concerning the proposed treatment shall be given full consideration by the panel.

(4) The panel's consent to major medical treatment shall state that any tissues or parts surgically removed may be disposed of or preserved by the provider of health services in accordance with customary practice.

(e) Effect of the panel determination

(1) The panel determination shall include the effective date and the expiration date. The panel may delay the effective date for up to five days in order to enable an objecting party to exercise the right of appeal. For all determinations regarding a decision to withhold or withdraw life-sustaining treatment, the panel shall not delay the effective date of its decision.

(2) A copy of any panel determination shall contain a statement describing the right to appeal and shall promptly be sent to the following parties: patient; other persons requested by the patient to appear on his or her behalf; declarant; patient's parent, spouse, adult child, legal guardian, other known authorized surrogates, and correspondents; the director of the patient's residential facility or designee; service coordination provider; and MHLS.

(3) In the event that a panel refuses to consent to a major medical treatment that may be considered life-sustaining, any party may submit a new declaration for consideration as a declaration for the withholding or withdrawal of life-sustaining treatment with the requisite certifications and supporting documents.

(4) In the event that a panel refuses to consent to the withholding or withdrawal of life-sustaining treatment, any party may submit a new declaration for consideration as a declaration for surrogate decision-making for major medical treatment, with the requisite supporting documents.

(5) The panel determination regarding the major medical treatment decision or the end-of-life decision shall constitute legally valid consent or refusal to such treatment in the same manner and to the same extent as if the patient were able to consent or refuse on his or her own behalf. No other consent shall be required by a provider of health services.

(6) A panel determination that a patient is in need of surrogate decision-making for the proposed major medical treatment decision shall not be valid for any future major medical treatment and shall not be construed or deemed valid for any other purpose or for any other future major medical treatment unless the determination applies to related or continuing treatment necessitated by the original treatment. No panel determination shall be valid after the expiration date listed in the determination, except as provided for in section 701.5(b)(4)(iii).

(7) A panel determination that a patient is in need of surrogate decision-making shall not be construed or deemed to be a determination that such patient is impaired or incompetent or incapacitated pursuant to article 81 of the MHL.

(8) No person shall be deemed to have failed to exhaust administrative remedies for commencing a legal action to obtain a major medical treatment decision because of the pending review of the case by a panel.

(f) A record of the determinations and proceedings of the panel shall be made and retained for 10 years. Such record shall include any information, record, assessment, consultation, or amendment submitted to or considered by the panel.

(1) The Justice Center, any designee, and each member of the panel shall maintain the confidentiality of records as required by sections 33.13 and 80.07(c)(1) of the MHL, article 27-F of the PHL.

(2) All information, records, assessments, consultations or amendments submitted to or considered by the panel and the panel deliberations are not subject to the Freedom of Information Law or the Open Meetings Law.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 710.5

Renumbered from 710.4 New York State Register November 28, 2018/Volume XL, Issue 48, eff. 11/28/2018