S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         5435

                              2009-2010 Regular Sessions

                                   I N  S E N A T E

                                      May 5, 2009
                                      ___________

       Introduced by Sen. HUNTLEY -- (at request of the Office of Mental Retar-
         dation  Development  Disabilities)  -- read twice and ordered printed,
         and when printed to be committed to the Committee on Judiciary

       AN ACT to amend the surrogate's court  procedure  act,  in  relation  to
         authorizing  the consumer advisory board to make health care decisions
         for certain residents of the former Willowbrook state school

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  Paragraphs (a) and (b) of subdivision 1 of section 1750-b
    2  of the surrogate's court procedure act, as added by chapter 105  of  the
    3  laws of 2007, the closing paragraph of paragraph (a) as added by chapter
    4  262 of the laws of 2008, are amended to read as follows:
    5    (a)  For  the  purposes  of  making a decision to withhold or withdraw
    6  life-sustaining treatment pursuant to this section, in  the  case  of  a
    7  person  for  whom  no  guardian  has  been appointed pursuant to section
    8  seventeen hundred fifty or seventeen hundred fifty-a of this article,  a
    9  "guardian"  shall  also  mean  a  family  member of a person who (i) has
   10  mental retardation, or (ii) has a developmental disability,  as  defined
   11  in  section  1.03  of  the mental hygiene law, which (A) includes mental
   12  retardation, or (B) results in a similar impairment of general intellec-
   13  tual functioning or adaptive behavior so that such person  is  incapable
   14  of  managing  himself or herself, and/or his or her affairs by reason of
   15  such  developmental  disability.  Qualified  family  members  shall   be
   16  included  in a prioritized list OF SAID FAMILY MEMBERS pursuant to regu-
   17  lations established by the commissioner of mental retardation and devel-
   18  opmental disabilities.  Such family members must have a significant  and
   19  ongoing  involvement  in  a person's life so as to have sufficient know-
   20  ledge of their needs and, when reasonably known  or  ascertainable,  the
   21  person's wishes, including moral and religious beliefs. IN THE CASE OF A
   22  PERSON  WHO  WAS  A  RESIDENT  OF THE FORMER WILLOWBROOK STATE SCHOOL ON
   23  MARCH SEVENTEENTH, NINETEEN HUNDRED SEVENTY-TWO AND  THOSE  ONE  HUNDRED

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07417-03-9
       S. 5435                             2

    1  FOUR  INDIVIDUALS  WHO  WERE  IN  COMMUNITY CARE STATUS ON THAT DATE AND
    2  SUBSEQUENTLY RETURNED TO WILLOWBROOK OR  A  RELATED  FACILITY,  WHO  ARE
    3  FULLY REPRESENTED BY THE CONSUMER ADVISORY BOARD AND WHO HAVE NO GUARDI-
    4  ANS  APPOINTED  PURSUANT  TO  THIS  ARTICLE  OR HAVE NO QUALIFIED FAMILY
    5  MEMBERS TO MAKE SUCH A DECISION, THEN A "GUARDIAN" SHALL ALSO  MEAN  THE
    6  CONSUMER  ADVISORY  BOARD.  A  decision  of  such  family members OR THE
    7  CONSUMER ADVISORY BOARD to withhold or withdraw  life-sustaining  treat-
    8  ment  shall  be  subject to all of the protections, procedures and safe-
    9  guards which apply to the decision of a guardian to withhold or withdraw
   10  life-sustaining treatment pursuant to this section.
   11    In the case of a person for whom no guardian has been appointed pursu-
   12  ant to this article or for whom there is no qualified family  member  OR
   13  THE CONSUMER ADVISORY BOARD available to make such a decision, a "guard-
   14  ian"  shall  also mean, notwithstanding the definitions in section 80.03
   15  of the mental hygiene law, a surrogate [court]  decision-making  commit-
   16  tee,  as defined in article eighty of the mental hygiene law. All decla-
   17  rations and procedures, including expedited procedures, to  comply  with
   18  this  section  shall  be  established  by regulations promulgated by the
   19  commission on quality of care and advocacy for  persons  with  disabili-
   20  ties.
   21    (b)  Regulations establishing the prioritized list OF QUALIFIED FAMILY
   22  MEMBERS required by paragraph (a) of this subdivision shall be developed
   23  by the commissioner of mental retardation and developmental disabilities
   24  in conjunction with parents, advocates and family members of persons who
   25  are mentally retarded. REGULATIONS TO IMPLEMENT  THE  AUTHORITY  OF  THE
   26  CONSUMER  ADVISORY  BOARD  PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION
   27  MAY BE PROMULGATED BY THE COMMISSIONER OF THE OFFICE OF MENTAL  RETARDA-
   28  TION  AND DEVELOPMENTAL DISABILITIES WITH ADVICE FROM THE CONSUMER ADVI-
   29  SORY BOARD.
   30    S 2. This act shall take effect immediately.