• Physicians Required to Offer Information Regarding Palliative Care/Budget Contains New Obligations for Hospitals
  • April 25, 2011
  • Law Firm: Wilson Elser Moskowitz Edelman Dicker LLP - New York Office
  • Legislation enacted in 2010, which became effective February 9, 2011, mandates that physicians and nurse practitioners in New York State offer information and counseling regarding palliative care and end-of-life options to terminally ill patients. The Palliative Care Information Act defines terminally ill as “an illness or condition which can reasonably be expected to cause death within six months, whether or not treatment is provided” and palliative care is defined as “health care treatment, including interdisciplinary end-of-life care, and consultation with patients and family members, to prevent or relieve pain and suffering and to enhance the patient's quality of life, including hospice care.”

    Information and counseling is to be offered by the “attending” physician or nurse practitioner, defined as the physician or nurse practitioner who has primary responsibility for the care and treatment of the patient. If there is more than one attending physician or nurse practitioner, each has the obligation to offer the palliative care information and counseling, unless there is an agreement that one shall assume such responsibility.

    The information and counseling to be provided shall specifically include, but not be limited to, the range of options appropriate to the patient; the prognosis, risks and benefits of the various options; and the patient's legal right to comprehensive pain and symptom management at the end of life. When considering which options may be “appropriate” for the patient, the law states they must be “consistent with applicable legal, health and professional standards; the patient's clinical and other circumstances; and the patient's reasonably known wishes and beliefs.”

    The information and counseling may be provided orally or in writing. If the patient lacks capacity, the offer needs to be made to the individual with health care decision-making authority, i.e., a health care agent or surrogate. The attending physician or nurse practitioner can also arrange for the information and counseling to be provided by another professionally qualified individual. Although the statute does not define “another professionally qualified individual,” the New York State Department of Health has indicated that a social worker would not have sufficient medical training to provide the information and counseling under the law, but may otherwise be helpful in supplementing the required medical information and counseling. If the physician or nurse practitioner is unwilling or unable to provide the patient with the required information, the patient needs to be referred to a physician or nurse practitioner who will do so.

    It is important to emphasize that the attending physician or nurse practitioner is required to offer the palliative care information and counseling, but the patient (or individual with decision-making authority for an incapacitated patient) may decline to receive the information and counseling. In such instances, the physician or nurse practitioner should document in the patient's medical chart that the offer was made but declined.

    Failure to offer the required information and counseling could subject a physician or nurse practitioner to fines for violating the state's Public Health Law, and repeated or willful violations could also lead to professional disciplinary actions.

    The Department of Health has developed Guidance for Practitioners on the Palliative Care Information Act, prepared a list of Frequently Asked Questions and Answers, and identified links to resources that may provide additional guidance on palliative and end-of-life care, which can be found at:
    http://www.health.ny.gov/professionals/patients/patient&under;rights/palliative&under;care/practitioners/

    The recently enacted New York State Budget includes additional provisions that address the role of hospitals, nursing homes, certain home care agencies and assisted living residences in facilitating access to appropriate palliative care consultation and services. These organizations are expected to develop policies and procedures to address access to counseling and information regarding palliative care options for patients with advanced, life-limiting conditions and illnesses. It remains to be seen how these new state provisions, which do not become effective until late September 2011, will impact the requirement that physicians and nurse practitioners offer counseling and information regarding palliative care to terminally ill patients.