June 2025
TO: MEMBERS OF THE LONG ISLAND JEWISH
ORGANIZED MEDICAL STAFF
As reported in the Health Law Journal, important changes to New York’s Family Health Care Decisions Act have recently been implemented.
Governor Hochul signed a bill that amended the Family Health Care Decisions Act (FHCDA) and related health care decision-making laws in numerous respects.
On its face, the bill made only minor technical and clarifying amendments.
The 2024 Technical and Clarifying Amendments: Chapter 619 of the Laws of 2024 makes minor technical, clarifying and coordinating amendments to the FHCDA, to the Health Care Proxy Law and to the Non-Hospital DNR Law.
A significant change made by the bill is section 10, which now directs the commissioner of health to revise the Hospital Patient’s Bill of Rights.
The statement recites a right to “Receive all the information you need to give informed consent for an order not to resuscitate.”
That right was added in the wake of the 1997 Do Not Resuscitate Law, which is no longer in effect.
The amendment directs the commissioner to replace that clause with a statement that more generally informs patients of their rights with respect to deciding about health care, including appointing a health care agent, consenting to DNR order and making other life-sustaining treatment decisions.
There have been previous attempts to accomplish these changes and other technical amendments had been introduced repeatedly dating back to 2011, shortly after the FHCDA was enacted. But the 2024 legislation, were the first versions to pass both houses.
Items not addressed within the new legislation: The FHCDA applies to decisions for most patients who lack capacity and did not previously appoint a health care agent. However, for patients that are intellectually disabled, a different statute applied. The Health Care Decisions Act, (HCDA).
Although the goals of both Acts are similar, the drafting of each Act is differ enough to create some confusion. A New York State Task force was established to incorporate safeguards from the HCDA into the FHCDA, as there are certain “carved-out groups” not covered by the FHCDA, but these recommendations are still pending.
Other recommendations from Health Law Section,
Although the recent law that made minor technical and clarifying amendments to the FHCDA and related laws was helpful, there is now the need to address more substantive changes.
- Extend the FHCDA to cover all health care decisions for patients with intellectual or developmental disabilities who lack capacity and did not decide in advance.
- Extend the FHCDA to cover all health care decisions (excluding certain psychiatric treatments) for patients in or from psychiatric hospitals and units who lack capacity and did not decide in advance.
- Expand the list of professionals who are qualified to determine incapacity for people with developmental disabilities.
- Revise the standard for end-of-life decisions for socially isolated incapable patients.
- Recognize MOLST, (Medical Orders for Life-Sustaining Treatment), in statute and support eMOLST, (registry).
- Secure DOH cooperation in further studies, by making available relevant governmental data, (assuming de-identified or disclosed under the HIPAA exception), for ongoing studies.
By addressing these issues, the Legislature and DOH would demonstrate a commitment to ensuring that the FHCDA and related health care decision-making policies work well for patients and are continually improved based on experience and data.
Respectfully submitted,
Schaum Law Offices