On February 6, New York Gov. Kathy Hochul signed the Medical Aid in Dying Act (MAID), making New York the 13th state to adopt similar legislation along with the District of Columbia. MAID has created a new Article 28-F to the New York Public Health Law, which will be effective August 5, 2026.
What is MAID?
MAID is a law that gives a terminally ill “Qualified” New York resident the ability to request prescription medicine which the “Patient” may choose to self-administer to bring about their own death.
MAID can be self-administered at home or in a health care facility. The medicine cannot be administered to the Patient by a health care professional or other person.
In most cases, the prescription for the medicine cannot be filled until five days after the prescription has been written.
How does a Patient request MAID?
The Patient makes a request to their attending physician for self-administered medicine for the purpose of ending their own life. The request is made verbally and then submitted in writing. Alternate request methods can be used for a Patient who cannot physically make the verbal request. Verbal requests must be recorded and permanently stored in the patient’s medical records.
What Type of Writing is needed for MAID?
Written requests for MAID and consent to self-administer the medicine are subject to specific safeguards, and the request must be in a form that “substantially complies” with the form provided in section 2899-K of the new Article 28-F.
The writing must include the diagnosis and a declaration that the Patient has been fully informed of their diagnosis, prognosis, alternatives, and the potential risks of the medicine. The writing must include a statement that the patient either has no family or the Patient’s statement if they have decided to (or not to) inform their family about their MAID request. The writing must include a statement that the Patient has been told that they can rescind the request for MAID and that they can decide not to take the medicine at any time.
The request must be signed and dated by the Patient. Two adult witnesses must attest in the Patient’s presence that the Patient’s request was voluntary and without coercion, and that the Patient has decision-making capacity. Certain people are ineligible to be witnesses. Witnesses cannot be the Patient’s agent under health care proxy or power of attorney; domestic partner; or related to the Patient by marriage, biology, or adoption. Witnesses cannot stand to inherit from the Patient or receive any financial benefit from the Patient’s death. Witnesses cannot work for, own, operate or be an independent contractor of a health care facility where the Patient lives or receives care.
The writing must be in the same language as the MAID conversations, consultations or interpreted conversations or consultations. The writing can be in English, even if the conversations and consultations were in a different language, or were conducted with auxiliary aids or hearing, speech, or visual aids if there is an interpreter’s declaration attached to the writing. Section 2899-K requires that the interpreter’s declaration must substantially conform to the form provided in Section 2899-K. The interpreter cannot be a person who would be prohibited from serving as a witness, except that the interpreter can be an employee or independent contractor of the health care facility if their job description includes being an interpreter, they are trained as an interpreter, and the Patient asked them to function as interpreter.
The Patient can rescind their request for MAID at any time. The Patient’s right to rescind the request is not subject to a further finding of decision-making capacity.
Is MAID suicide?
No, MAID is not considered suicide under the law. The person’s death certificate must identify the underlying illness/condition as the cause of death. The cause of death shall not be suicide or MAID.
Is MAID assisted suicide?
No, under the law MAID is not assisted suicide, mercy killing, or homicide.
Can an agreement be contingent on or prohibit MAID?
No, any provision in an agreement, contract, or testamentary instrument encouraging, prohibiting, or affecting a person’s right to make a request for or participate in MAID is invalid. Life insurance benefits cannot be denied to a person’s beneficiaries because the person took actions under Article 28-F absent other factors including material misrepresentations.
Who is qualified for MAID?
A Patient’s qualification for MAID cannot be based solely on age or disability.
A Patient is a Qualified Person if they are a New York resident, 18 years or older, under the care of a New York licensed physician, has decision-making capacity and a medically confirmed terminal illness/condition who meets specific criteria. Self-administration is the affirmative, conscious, and voluntary act to ingest the medicine. Self-administration specifically excludes lethal injection and lethal infusion.
The right to request MAID is a personal right, it cannot be delegated to an agent or a surrogate. This means that a health care agent cannot request MAID on the patient’s behalf. A request for MAID is different from a request to withdraw life support or other medical care.
What are the criteria?
The Patient must understand and appreciate the “nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, including MAID and to ability to reach an informed decision.”
The Patient, of their own volition, must also make an informed decision based on their understanding and acknowledgment of the relevant facts. The new law requires that the Patient be fully informed of: (a) their medical diagnosis and prognosis; (b) the potential risks associated with taking the life-ending medicine; (c) the probable result of taking the life-ending medicine; (d) the possibility of choosing not to obtain the medicine, or not to take the medicine after obtaining the medicine; and (e) the feasible alternatives and appropriate treatment options, including, but not limited to, palliative care and hospice care.
The Patient must have a “Medically confirmed” incurable and irreversible illness or an incurable and irreversible condition which will in reasonable medical judgment produce death within 6 months with or without treatment.
The Patient’s attending New York state-licensed physician must also provide a medical opinion that the patient has a terminal illness/condition and that the Patient has made an informed decision in requesting MAID. The attending physician’s “medical confirmation” must be confirmed by a consulting New York state-licensed physician who has examined the patient and their relevant medical records. Decision-making capacity is to be made by a mental health professional and reported to the attending physician. A determination that a patient lacks decision-making capacity for MAID is not construed to mean the Patient lacks capacity for any other purpose.
What responsibilities does the attending physician have?
The Patient’s attending physician is responsible fulfilling the medical record documentation requirements and for making the Medical Confirmation of the terminal illness/condition. The attending physician must also confirm that the Patient has decision-making capacity, and they are making an informed decision. The attending physician must also discuss the importance of having someone present when the person takes the medicine; that only the Patient can administer the medicine; that the medicine should not be taken in a public place.
The attending physician must discuss with the Patient the importance of telling their family about their decision, but the Patient has the right not to inform their family. The Patient’s decision not to inform their family is not a reason to deny MAID.
The attending physician must also inform the Patient that the Patient can rescind their request for MAID at any time, and in any manner. Unlike the request for MAID, there is no strict process to rescind the request, a Patient can call their doctor and just tell them they no longer want MAID. This step ensures that a Patient does not need to concern themselves with meeting a protocol to withdraw a request.
The attending physician cannot write the prescription without offering the Patient the chance to rescind the request for MAID.
When can health care professionals refuse MAID?
Health care providers are not required to participate in MAID. Health care providers who do not want to or are unable to participate in MAID must cooperate with the Patient’s transfer to new health care providers and requests for medical records.
Private health care facilities are not required to participate in MAID, but they must have a formally adopted policy that is contrary to MAID and is “expressly based” on certain sincerely held beliefs and convictions that are central to the health care facility’s operating principals.
The non-participating health care facility must have informed the Patient of their position before admission or as soon as reasonably possible after admission. If the Patient requests MAID in a non-participating health care facility, and requests a transfer to another facility, the non-participating facility shall promptly transfer the Patient to a reasonably accessible facility that is willing and able to permit MAID.
Non-participating health care facilities that have adopted a MAID prohibition and provided written notice of the MAID prohibition can prohibit their employees, providers, and independent contractors from participating in MAID.
Conclusion
New York’s MAID statute recognizes the rights of patients and health care providers and represents a decade long legislative process with input from the public, and health care providers. If you have questions about MAID, please contact the author.