OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
NOTICE OF ADOPTION
I.D No. MRD-42-07-00007-A
Filing No. 1363
Filing Date. Dec. 11, 2007
Effective Date. Dec. 30, 2007
Health Care Decisions Act
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 633.10 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b); Surrogate's Court Procedure Act, section 1750-b; and L. 2007, ch. 105
Subject:
Amendment of certain regulatory provisions implementing the Health Care Decisions Act consistent with chapter 105 of the Laws of 2007.
Purpose:
To include, in regulation, a prioritized list of family members who may be qualified to make a decision to withhold or withdraw life-sustaining treatment in certain circumstances.
Text or summary was published
in the notice of proposed rule making, I.D. No. MRD-42-07-00007-P, Issue of October 17, 2007.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Barbara Brundage, Director, Regulatory Affairs Unit, Office of Mental Retardation and Developmental Disabilities, 44 Holland Ave., Albany, NY 12229, (518) 474-1830; e-mail: barbara.brundage@omr.state.ny.us
Additional matter required by statute:
Pursuant to the requirements of the State Environmental Quality Review Act (SEQRA) and in accordance with 14 NYCRR Part 622, OMRDD has on file a negative declaration with respect to this action. Thus, consistent with the requirements of 6 NYCRR Part 617, OMRDD, as lead agency, has determined that the action described herein will not have a significant effect on the environment, and an environmental impact statement will not be prepared.
Assessment of Public Comment
OMRDD received two letters containing comments on the proposed regulations, one from the Mental Hygiene Legal Service (MHLS) and one from a service provider agency. The specific comments and OMRDD's response are as follows.
○ Comment: The MHLS suggested the addition of the phrase “who has also complied with the other provisions of SCPA 1750-b” following the term “qualified family member.”
Response: This issue is addressed in clause (c) of the proposed regulation which states: “A decision to withhold or withdraw life-sustaining treatment may be made in accordance with SCPA section 1750-b by the following qualified family members …” (emphasis added).
○ Comment: The MHLS wondered how a hospital or other health care facility would determine the appropriate priority if there were several involved family members, and how such facilities would determine the level of active involvement among members of the same category.
Response: OMRDD declined to specifically address this issue in the regulations for three reasons: (1) OMRDD lacks the authority to regulate hospitals or other health care facilities; (2) OMRDD intends to administratively advise residential providers under its auspices to provide information regarding the individual's family members to the hospital or health care facility; and (3) It is OMRDD's position that the notification/objection processes contained in the Health Care Decisions Act (HCDA) should prevent such a decision being made by an inappropriate or unqualified family member.
○ Comment: The MHLS suggested the addition of language requiring notification of other qualified family members when a decision is made.
Response: Chapter 105 did not amend the notification or objection provisions of the HCDA. It merely expanded usage of the term “guardian” to include certain actively involved family members when no guardian had been appointed. It would be beyond the scope of OMRDD's statutory authority for this regulation to amend the notification or objection provisions of the HCDA.
○ Comment: The responding service provider noted that the prioritized list of surrogates set forth in the regulation differs slightly from the surrogate list for consent to Do not Resuscitate (DNR) orders found in OMRDD's regulations at section 633.18.
Response: OMRDD is aware of the difference in the two prioritized lists of surrogates. The DNR surrogate list set forth in section 633.18 mirrors the list contained in Public Health Law (PHL) section 2965. However, the sponsor's memorandum accompanying Chapter 105, which amends the HCDA, specifically suggested that the surrogate list in the present required regulations should be based upon the prioritized surrogate list set forth in section 633.11 for consent to professional medical treatment.
