Thursday, February 25, 2010


Let it be known that the last week of February of 2010, the NY State Senate passed the Family Health Care Decisions Act (FHCDA). According to their website, it passed 55-3. Meaning something somewhere was bipartisan. Shocked? I know what you're thinking...who were the three?

According to the report, only 20% of us sign a health care proxy, leaving the majority of patients without any opportunity for decisions to be made on their behalf if they become incapacitated. With just over a year in the majority, the Democrats moved the issue out of committee and thus, voted in favor of the legislation.

Senator Thomas K. Duane, the bill’s lead sponsor, said "This is vitally important legislation that protects those who are incapacitated and powerless. The FHCDA eliminates the uncertainty that caregivers face when a patient is no longer able to make decisions for him or herself, assuring that the best interests of that individual are respected.” This proposal lingered in committee for over 17 years.

Senator John Sampson said "I applaud Senator Duane for his leadership and commitment to giving all New Yorkers a health care system that cares for their needs.” These sentiments were echoed by a number of his colleagues and all expect Paterson to sign the bill.

For New Yorkers, this legislation will help families during their most vulnerable times. If you viewed the Olberman video I posted before this, you can see w
here decision making for a loved one can have the most intimate impact on several levels. I fail to understand why this didn't happen before 2009?

I pulled this next quote right from the report: David Gregorie, Executive Director of the Northeastern NY Chapter of the Alzheimer’s Association said, “The FHCDA will change how health care decisions can be made for hospital and nursing home patients who lack decision-making capacity. I have seen firsthand that the progression of Alzheimer’s disease directly impacts a patient’s decision making capabilities. Most individuals with Alzheimer’s disease that seek services from our office believe that their family member or close friend can make these kinds of decisions for them, if necessary. And indeed in most states, that is the case. But it has not been the case in New York. The FHCDA will reform that.”

Alzheimers is in no way the only ailment that debilitates people this way, but it's a good example of how this is an overdue tool for our health guardians throughout the state.

Senate candidate Lawrence Delarose said: "Until now, New York has been one of the two remaining states in the nation that bared family members and domestic partners from making treatment decisions for incapacitated patients. This change brings the State in line with the rest of the country."

Allow me to paste another quote from the report; Daniel Sisto, President of the Healthcare Association of NY State, said: "These patients and their families are lost in the loopholes of existing law, too often resulting in terrible, unneeded suffering on the part of the patient and the patient's loved ones. Beyond the tragic human costs there are also the tremendous financial costs associated with providing care that neither the patient nor the family may support. We need to free them from these terrible dilemmas and give the patient every opportunity to have his or her own wishes fulfilled. It is an essential right for all of us."

Here are some details from the bill:

Appointing a Surrogate:
· To appoint a surrogate, the FHCDA requires a determination by an attending physician that the individual lacks decision-making capacity.
· In a nursing home, this determination must be confirmed by an independent determination by a health or social services practitioner that the individual lacks decision-making capacity.
· In a hospital, the independent determination is required only if the surrogate’s decision concerns withdrawal or withholding of life-sustaining treatment.
· If there is disagreement about whether the individual lacks decision-making capacity, the matter is referred to the hospital or nursing home ethics committee for resolution.

Potential Surrogates (in order of priority):
· Court-appointed guardian;
· Individual designated orally by the subsequently incapacitated individual;
· Spouse or domestic partner;
· Adult son or daughter;
· Parent;
· Adult brother or sister;
· Close relative or friend.

Medical Decisions by a Surrogate:
· The surrogate has all the powers an individual has to make their own medical decisions, including the decision to withhold or withdraw life-sustaining treatment.
· The FHCDA directs the surrogate to make decisions in accordance with the patient’s wishes, including the patient’s religious and moral beliefs.
· If the patient’s wishes are not reasonably known and cannot be ascertained, the FHCDA directs the surrogate to make decisions in accordance with the patient’s best interests.

Decisions to Withhold or Withdraw Life-Sustaining Treatment:
· Decisions to withhold or withdraw life-sustaining treatment are governed by additional standards under the FHCDA.
· A surrogate may withhold or withdraw life-sustaining treatment for an individual if that individual will die within six months with or without treatment, as determined by two independent physicians, and treatment would be an extraordinary burden to the patient.
· A surrogate may also withhold or withdraw life-sustaining treatment if the patient has an irreversible condition, as determined by two independent physicians, and treatment would involves such pain, suffering, or other burden that it would be inhumane or extraordinarily burdensome to provide treatment under the circumstances.
· Decisions to withhold or withdraw life-sustaining treatment for minors are made by the minor’s parents.

Medical Decisions for Individuals Without a Surrogate:
· The FHCDA authorizes the attending physician to act as surrogate for routine medical treatment.
· For major medical treatment, a physician may act only upon the concurrence of another physician that such major medical treatment is necessary.
· A physician may withhold or withdraw life-sustaining treatment for individuals without a surrogate only upon the independent concurrence of another physician that life-sustaining treatment offers no medical benefit to the patient because the patient will die imminently and the provision of life-sustaining treatment would violate accepted medical standards.

Individuals with Mental Retardation/Developmental Disability:
· Under the FHCDA, individuals with mental retardation or developmental disabilities are within the class of individuals for whom health care surrogates may be appointed.

As you can see this is change is as significant as it is overdue. Congrats to our State Senators for finally pulling this proposal off the shelf and acting on behalf of all New Yorkers.


Anonymous said...

Is New York really next to last on this? How can our governing body be so slow to keep up with the rest of the country, and which state is the last dirty holdout?
I cant imagine Texas or Tennessee having such legislation before us. 17 years? That's Pataki and Bruno. I guess I answered my own question. Never mind.

Anonymous said...

Bruno might have kept this bottled up in the Senate, I don't know. But, honestly, blaming Pataki is just goofy. The bill was sitting there for a couple of years before he took office and he has been out of office for over 3 three years. On top of that, Mike wrote in the post that it lingered in committee, not on the governor's desk. It was never passed by the Senate and Assembly for Pataki to consider.

Anonymous said...

Thank you again for this informative article.You help make us all think.

Other blogs seem at times to bring us back to carved images of cows,chickens and stick people on the walls of caves.

Keep up the great work and perhaps a few others will catch on...smitty