End-of-life discussions between patients or their surrogate loved ones can be fraught with a range of emotions and emotional reactions in the ICU. Nowhere is this more evident than in the neuroscience critical care unit, where distraught and grieving families must grapple with the fact that their loved one, on a ventilator with supportive equipment and medications, is lawfully dead. Misunderstandings about brain death as well as religious and moral beliefs may make these conversations even more challenging. 

“Uniform” Determination of Death Act

  The Uniform Determination of Death Act (UDDA), first enacted in 1981, recognizes both cardiopulmonary cessation and cessation of whole brain function as medical and legal death.[1] Since then, brain death/death by neurological criteria (BD/DNC) has been accepted as the medical and legal equivalent to cardiopulmonary cessation in all 50 U.S. states, unfortunately adaptation has been anything but uniform. Thirty-eight states have adopted the UDDA, while the other states have adopted the UDDA with additional qualifiers. New Jersey added the provision that BD/DNC can only be declared when circulatory and respiratory functions are maintained by artificial means; in addition, surrogates can object to the declaration of BD/DNC and the termination of organ support after BD/DNC if the declaration of BD/DNC violates the patient’s religious beliefs. California, Illinois, New Jersey, and New York have laws requiring hospitals to provide “reasonable accommodation” to those who have objections to BD/DNC. and New York have laws requiring hospitals to provide “reasonable accommodation” to those who have objections to BD/DNC. 
While explicitly endorsing the UDDA definition of death, the American Academy of Neurology (AAN) also acknowledged that critical care physicians and other clinicians may encounter requests from patient surrogates to forego brain death testing or to continue organ support after BD/DNC declaration.[2, 3][JD1.1][LK1.2] In a survey of neurologists, nearly half reported requests from families to continue organ support after declaration of death[JD2.1][LK2.2].[4] The 2025 position statement affirms that there is no ethical obligation to provide medical treatment to a deceased person, and with the exception of New Jersey, there is no legal requirement to provide indefinite accommodation.[2] The 2023 American Academy of Neurology (AAN) Brain Death/Death by Neurologic Criteria Consensus Guideline recommends hospital policies consider “providing a reasonable period to accommodate families after the death of a family member and should provide a process to resolve disagreements when families do not agree with the medical team about … termination of organ support after determination of BD/DNC.”[3] 

Reasonable Accommodations

In states with legal requirements for reasonable accommodations, the definition, duration, and expectation of “reasonable accommodation” are not well defined. California code requires a “reasonably brief period of accommodation” defined as an amount of time afforded to gather family or next of kin at the patient's bedside, but in cases of concerns around the declaration, “the hospital shall make reasonable efforts to accommodate those religious and cultural practices and concerns[JD3.1][LK3.2],” without further clarifications as to what constitutes reasonable.[5] New York State Department of Health mandates that hospitals establish written procedures for the reasonable accommodation for religious and moral objections that should include policies for continuation of artificial ventilation as well as a duration for accommodation but leaves to hospitals to develop their own policies and practices.[6] Likewise, Illinois requires that every hospital adopt policies and procedure “to take into account the patient’s religious beliefs concerning the patient’s time of death.”[7]
There is limited information available regarding specific hospital policies for “reasonable accommodation” after BD/DNC. In a 2015 article, a review of 331 hospital brain death protocols showed that nearly 80% did not mention how to navigate requests from families who object to brain death declaration or discontinuation of organ support. Of policies that address accommodation, the time period for ongoing organ support varies drastically, from less than 24 hours to up to cardiac death.[8][JD4.1] Not only is the duration of organ support open to interpretation, but the intensity of support can be debated. For instance, some policies require complete support (invasive mechanical ventilation, vasopressors, renal replacement therapy, antibiotics, nutrition, etc.) while others allow continuation of partial support (e.g. invasive mechanical ventilation only) during the accommodation period.

Navigating Objections Prior to Declaration of Death

Clinicians have an obligation to accurately diagnosis death in a timely fashion.[2] However, clinicians should also strive to provide compassionate care and be sensitive to the unique religious, moral and cultural beliefs of their patients and their family members. When possible, it is best to begin conversations with family members about intentions to perform BD/DNC examination prior to the official examination. As patients suspected of meeting BD/DNC often require observation time for confirmation of permanence of brain injury, washout of sedation, or correction of metabolic abnormalities, this time should be utilized for preemptive discussions and preparation of the family. Accommodations prior to the declaration of death might include waiting for certain family members or avoiding significant holidays or religious events. 
Clinicians should provide the opportunity for family members to observe all aspects of the clinical examination, including apnea testing. If, during this time, family members indicate the patient has an objection to the declaration of BD/DNC, such as a religious or moral objection, there is an opportunity to try to come to consensus and limit conflict after the declaration of BD/DNC. If family expresses objection to a BD/DNC declaration, hospital staff should explain and implement their hospital policy regarding BD/DNC. The process should involve the treating physician (and consulting specialist if the primary attending is not declaring BD/DNC), an ethics consultation, hospital chaplain/religious services, and/or a hospital patient/guest relations team.     

Benefits and Limitations to Accommodation Policies

 When developing a “reasonable accommodation” policy, hospitals should consider what such a policy is likely capable of achieving and what is unlikely to be achieved. A time-limited accommodation policy may allow time for the engagement of support teams for both family members and the clinical health team, such as palliative care, ethics, and religious leaders. It may also have value in supporting families, allowing family members time to gather and visit. Families may require time to come to terms with the death of a loved one, and having a few extra days, whether it is before or after declaration of BD/DNC or palliative extubation and cardiopulmonary death, may allow for some degree of closure. In addition, if a patient surrogate requests transfer to another institution, accommodation policies can provide instructions on contacting the referring facility. Having an established, written policy available to show family members may be helpful in demonstrating an established course of action in such situations, rather than family perceiving the hospital’s actions to be arbitrary or capricious.
While the AAN recognizes patient autonomy, it also notes that autonomy is not absolute, and limits, both legal and ethical, exist as to the extent of continuing wanted but medically unjustified therapy, including organ support after BD/DNC. [LK5.1]The AAN also recognizes potential harms associated with indefinite accommodation after a declaration of BD/DNC, including prolongation of the grieving process, provision of false hope, mistreatment of the newly dead, deprivation of dignity, and societal harm associated with inconsistent standards of death.[2]    
Certain outcomes are unlikely to occur regardless of the specifics of a “reasonable accommodation” policy. The diagnosis of BD/DNC itself is also unlikely to change during a period of reasonable accommodation, as there have been no reported cases of return of brain function after declaration of BD/DNC when BD/DNC guidelines have been appropriately followed.[2] An individual’s moral or religious beliefs, and their non-acceptance of BD/DNC as death, are unlikely to change, although involvement of relevant religious leaders may help manage communication between the clinical team and family, and develop a care plan for the patient. For those primarily affected by grief, not all individuals achieve a meaningful degree of closure or acceptance with an accommodation period of a few days. 

Creating Hospital Policies for Accommodation: 

Hospitals in states with reasonable accommodation laws must have a written policy to remain compliant with the law. To provide fair and equitable care after BD/DNC, even hospitals that are not legally required should strongly consider developing policies for management of patients before and after BD/DNC declaration in anticipation of potential objections from family members.  Accommodation policies relieve pressure on the individual practitioner to decide what is "reasonable" and if the policy is created with the consultation of legal counsel, it also provides some legal support for the practitioners. 
These policies should address the definition of accommodation prior to declaring BD/DNC (and thus delaying the diagnosis of BD/DNC) and/or after declaration of BD/DNC (and thus continuing organ support in a deceased individual). Due to the potential harms associated with indefinite continuation of organ support after BD/DNC, policies should specify a time limit for the continuation of organ support after BD/DNC. The AAN advocates for a period of accommodation of 48 hours. Local policies for reasonable accommodation after BD/DNC may be developed with consideration to the hospital’s own values, values of its local population, legal guidance, resource utilization, and other factors. For example, some policies may allow for accommodation until the occurrence of cardiac cessation after BD/DNC without termination of invasive mechanical ventilation for patients with religious beliefs that do not accept the BD/DNC as death. In this sense, families who do not accept BD/DNC may ultimately accept the diagnosis of death after cardiac cessation. Likewise reasonable accommodation may outline situations where it is permissible to not escalate care, such as not increasing ventilator settings, not refilling vasopressors after a bag runs out, and not performing chest compressions after cardiac cessation.[9] The timeframe that this may occur, however, can be variable, and potentially longer than a hospital may consider to be a reasonable accommodation.
A[JD6.1] “reasonable accommodation” period may allow transfer of a patient to another facility where organ support will continue indefinitely (i.e. New Jersey). For example, in the 2013 case of Jahi McMath, where after the courts ruled in favor of the hospital and the declaration of brain death, the family and the hospital came to an agreement outside of court in which Jahi’s body was released to the coroner, and then the coroner released the body to family who had her transferred to an accepting hospital in New Jersey.[8] State laws regarding the transportation of dead patients may hinder this request, but outlining the responsibility of clinical care teams to provide relevant information to the identified hospital may establish trust between family members and the clinical care teams. 
Hospital policies should also address whether unilateral withdrawal of organ support is permissible as a last resort, when resolution of conflicts has been unsuccessful after the involvement of the health care team; support teams and mediation; and institutional administrative, ethics, and legal teams[JD7.1].[2]

Conclusion: 

Determination of death should be based upon objective criteria and applied consistently amongst all individuals. Hospital policies, even in required accommodation states, should affirm the UDDA definition of death. When developing accommodation policies, it is difficult to account for every variable, however. hospitals must consider potential harm to the decedent, families, and moral distress of hospital staff providing care to the decedent with longer durations of accommodation. Consideration should also be given to the extent of ongoing organ support. Limited organ support, such as continuation of ventilator support only, may be considered. Implementation of a “no escalation” approach should strongly be considered. Diagnostic testing after declaration of BD/DNC should be avoided. Ultimately, the goal of a “reasonable accommodation” after BD/DNC should be declaration and acceptance of death. “Reasonable accommodation” should be finite and limited, unless indefinite organ support is required by law. If indefinite organ support is required by law, clinicians should continue to engage and educate family members about the death of their loved one.