NYSCC Comments on Medical Aid in Dying Act Regulations

On behalf of the New York State Catholic Conference of Bishops, we respectfully submit the following comments on proposed rulemaking ID No. HLT-22-26-00001-P, from the Department of Health, regarding physician reporting requirements pursuant to the Medical Aid in Dying Act, Article 28-F of the Public Health Law.

The Catholic Conference long opposed the legalization of assisted suicide (euphemistically called “Medical Aid in Dying” or MAID). The law, as finally passed and amended, is fundamentally flawed in concept, purpose, and execution. It contains numerous internal contradictions. Its supposed guardrails are grossly inadequate in protecting vulnerable people from exploitation and it fails to respect individual and institutional conscience rights. No set of regulations can adequately repair these defects, which can only be repaired by legislative action – preferably by a full repeal of the law. 

The Catholic Conference urges that these proposed regulations are inadequate to protect the public and to guarantee the religious liberty of individuals and institutions. In summary, our view is that the proposed regulations:

• Fail to provide adequate oversight of the practice of MAID.

• Fail to resolve flaws in the conscience protection provisions in the MAID law. 

The Medical Aid in Dying Act is the most significant – and misguided – piece of public health legislation in many years. It profoundly changes the nature and practice of medicine, and it will adversely affect a multitude of patients with chronic or incurable diseases. As the New York Bishops have said, “This new law signals our government’s abandonment of its most vulnerable citizens, telling people who are sick or disabled that suicide in their case is not only acceptable, but is encouraged by our elected leaders.” 

There will be untold unintended negative consequences from the passage of this legislation, as has been seen in other jurisdictions and nations. Government oversight of the practice in other jurisdictions has been widely criticized as being inadequate. New York can avoid at least some of these dangers, but these proposed regulations are not up to that significant task.  

An extraordinary law with such significant potential negative impact requires exceptionally diligent oversight. The Department of Health has a grave duty to exercise this supervision with great care. 

The Commissioner of Health already has very broad authority to protect “the interests of health and life of the people of the state”. Pub. Health § 206(1)(a). The Commissioner is also authorized to “obtain, collect and preserve such information relating to… mortality… and health as may… contribute to the promotion of health or the security of life in the state”. Pub. Health § 206(1)(e). 

But rather than exercise these broad powers for the public good, the proposed regulations instead adopt a minimalistic approach. They do little more than copy the reporting requirements set forth in the MAID law itself. 

Among their shortcomings are:

• The proposed rules fail to state how the Department will conduct oversight of the records that are filed and reviewed. 

• They say nothing about how the Department will address inadequate record-keeping or filing. 

• They fail to specify how the Department will review the records and what information will be provided in the annual report mandated by Pub. Health § 2899-q. 

• There is no suggestion of an independent and objective review of the evidence collected.

• There is no provision for Department follow-up or enforcement to address deficiencies in practice.

• There is nothing about specialized qualification, training, or standards for doctors who practice MAID.   

As a result, the proposed oversight by the Department is an illusion. 

The inadequacy of the proposed rules can be seen in a nutshell by considering the MAID law’s authorization of remote evaluation of patients by telehealth. Pub. Health § 2899-f(1). 

The law envisions that this will be done only in exceptional circumstances, if an in-person evaluation would impose an “extraordinary hardship”. But the law leaves that determination solely within the discretion of the physician and gives virtually no guidance as to how that standard should be applied. Nor are there any additional record-keeping or reporting requirements to document the decision. The proposed regulations do nothing to fill these crucial gaps. 

The failure of the proposed regulations to address this issue can be seen by contrasting them with other regulations. It is clear that telehealth presents substantial issues of accountability and quality. In other areas, the state has acted accordingly. For example, telehealth for mental health services is subject to an extremely strong and comprehensive set of rules. 14 N.Y.C.R.R. pt. 596. These rules require Department approval, delineate which providers may provide services, and impose substantial record-keeping obligations on providers and the Department. That regulatory system demonstrates the seriousness with which the Department is committed to its oversight duties. 

Surely, the practice of assisting a patient to commit suicide deserves even more supervision than the provision of mental health services. Yet these proposed regulations are utterly silent. This is a failure of both foresight and obligation. 

The inherent dangers of MAID are exacerbated by the insufficiency of the proposed regulations. The result is a substantial risk to public health, particularly to vulnerable patients. Without robust reporting requirements and strong oversight by the Department, the public will never know whether the weak guardrails in the MAID law are being observed. 

These proposed rules fail that test. 

The MAID law severely limits the ability of religious health facilities to opt out of assisted suicide based on moral or religious principles. 

The law says, “A private health care facility may prohibit the prescribing, dispensing, ordering or self-administering of medication under this article”. Pub. Health § 2899-m(2)(a). For this opt-out to be effective, patients and providers must be given prior notice. Pub. Health §§ 2899-m(2)(a) and (c). 

However, that list of four specific activities that can be banned does not include counseling about MAID or participation in referrals or transfers. In fact, participating in referrals and transfers are explicitly required under the law, even in institutions that otherwise prohibit MAID. Pub. Health § 2899-f(1)(d) (the individual provider’s responsibility) and §§ 2899-m(1)(b) and (2)(b) (the institution’s responsibility).

Further, the MAID law also explicitly requires attending physicians to “provide information and counseling” to patients pursuant to the Palliative Care Information Act. Pub. Health § 2899-f(1)(d). The Palliative Care Information Act requires that an attending physician “shall offer to provide [a patient with a terminal diagnosis] with: (a) information and counseling regarding palliative care and end-of-life options appropriate to the patient”. Pub. Health Law § 2997-c(2) (emphasis added). The law specifically requires hospitals and other institutions to have policies “to provide patients ... with access to information and counseling regarding such options appropriate to the patient”. Pub. Health Law § 2997-d(2) (emphasis added). The term “appropriate” is defined by cross-reference to Pub. Health Law § 2997-c, which specifically includes “end of life options”. 

The statutory framework thus creates inherent conflicts with the religious liberty of religious institutions that oppose any cooperation or participation with assisted suicide. 

But a partial solution is possible. The Department should issue regulations clarifying that information about MAID is not encompassed in the information required to be provided under the Palliative Care Information Act. This would not, however, address the flaws in the MAID law itself, which require legislative action that we will continue to advocate for. 

The passage of the MAID law was a tragic mistake. The Department has a grave duty to mitigate the potential damage that will inevitably result from this law by strict regulation and oversight of assisted suicide. These proposed regulations squander an opportunity to fulfill that obligation and thus place the public at risk. The Department should withdraw them and instead put forward a strong system of supervision and enforcement.