Abstract

The Family Health Care Decisions Act (FHCDA) was adopted by New York State in September 2010, after first being introduced in the Assembly 18 years prior. The FHCDA establishes the authority of a patient’s family member or close friend (referred to as a “Surrogate”) to make health care decisions when the patient lacks decision-making capacity, has not executed a proxy appointing a health care agent, and does not have a guardian. A Surrogate is authorized to make health care decisions, including to direct the withdrawal or withholding of life sustaining treatment, provided that conditions set forth in the FHCDA are met. When adopted, the FHCDA allowed Surrogate decision-making only for patients who were receiving services in a hospital or residential health care facility. In 2011, the FHCDA was amended to allow Surrogate decision-making for patients who were receiving hospice care, where such authority was greatly needed. Until 2015, one category of patients was unable to fully engage the benefits of the 2011 amendment: those patients often referred to as “isolated” or “unbefriended” patients. A 2015 amendment to the FHCDA provides a process through which physicians, acting under the standards that apply to Surrogates, can elect the hospice benefit and consent to a hospice plan of care on behalf of isolated patients. This article explains the context and content of the amendment, and presents considerations gleaned from our experience consulting with health care provider organizations on its implementation.