Overview
On March 16, 2010, Governor David A. Paterson signed into law the Family Health Care Decisions Act (“FHCDA”). The FHCDA, effective June 1, 2010, applies to hospitals and nursing homes and establishes a decision-making process whereby a surrogate is selected and empowered to make health care decisions for incapacitated patients.  Once appointed, the surrogate has authority to make all health care decisions for the patient, including end of life decisions. The FHCDA protects surrogates who make health care decisions in good faith and the health care providers who honor such decisions by immunizing such surrogates and health care providers from civil and criminal liability. 

Prior to appointing surrogates, facilities must determine that a patient lacks capacity and does not have a health care proxy or a guardian. After such determinations, facilities must consider which individuals are eligible to act as surrogates, including court appointed guardians, spouses and domestic partners, adult sons and daughters, parents, adult brothers and sisters, and close relatives and friends. Therefore, under the FHCDA, hospital and nursing home employees may not generally act as surrogates.

Policies and Procedures for Appointing Surrogates
In order to utilize the surrogate decision-making process, facilities must enact certain policies and procedures detailing how incapacity is determined by the facility, how surrogates are appointed, and how the facility implements surrogate decisions once made. Varying with specific factual situations, the FHCDA requires facilities to follow certain procedures during the surrogate decision-making process.  For example, in order to honor a surrogate’s decision to withhold or withdraw life-sustaining treatment, two physicians must make and document several specific determinations.  It is critical that facilities have policies and procedures in place to ensure compliance with this and other new FHCDA requirements.

In addition to enacting new policies and procedures, facilities must re-evaluate and modify their existing DNR, end of life, and health care proxy policies to conform to the FHCDA and accommodate the surrogate appointing and decision-making processes. These revisions, along with the new policies and procedures, should be in place prior to the FHCDA’s June 1, 2010 effective date to allow facilities to appoint and utilize surrogates for the health care decisions of incapacitated patients.

For more information on the FHCDA or other end-of-life decision making issues, please contact Heidi Schult Gregory at (585) 419-8720 or hgregory@harrisbeach.com, or the Harris Beach attorney with whom you usually consult.

This legal alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, White Plains, and Yonkers, as well as New Haven, Connecticut and Newark, New Jersey.