BILL ANALYSIS Ó
AB 637
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Date of Hearing: April 7, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 637
(Campos) - As Introduced February 24, 2015
SUBJECT: Physician Orders for Life Sustaining Treatment forms
KEY ISSUE: SHOULD A NURSE PRACTIONER or PHYSICIAN'S ASSISTANT
who is acting under the supervision of a physician and within
his or her scope of practice BE AUTHORIZED to sign A PHYSICIAN
ORDER FOR LIFE SUSTAINING TREATMENT FORM that also must be
signed by either the patient, or the patient's legally
recognized health care decisionmaker, and which gives a health
care provider information regarding the patient's preferences
for use of resuscitative and life-sustaining measures?
SYNOPSIS
This modest bill seeks to allow either a nurse practitioner or
physician's assistant acting under the supervision of a
physician and within his or her scope of practice to sign a
Physician Order for Life Sustaining Treatment (POLST) form. The
POLST program has shown itself to be helpful in instructing
health care providers about which resuscitative means, if any, a
patient would like to be used in a health care emergency. These
standardized orders are designed to assist individuals in
fragile or frail health, or those diagnosed with a terminal
illness, in communicating their preferences for the type of care
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they wish to receive at the end of their lives. Unlike broad
advanced health care directives, which often are not readily
available to health care personnel, these model forms allow for
specific instructions for what, if any, resuscitative means are
to be employed. In support of the bill, the California Medical
Association and other supporters point out that allowing Nurse
Practitioners and Physician Assistants to sign POLST forms will
make the forms more accessible and available. Meanwhile, the
California Right to Life Committee argues that this bill
replaces physicians with health care providers who have a lower
level of medical training, makes those new health care providers
into end of life care decision makers, and devalues the lives of
elderly and vulnerable citizens.
SUMMARY: Expands the ability to sign a Physician Order for Life
Sustaining Treatment Form to Nurse Practitioners and Physician
Assistants. Specifically, this bill:
1)Authorizes a nurse practitioner or a physician assistant to
sign a POLST form, completed by a health care provider based
on patient preferences and medical indications, with either
the patient, or the patient's legally recognized health care
decisionmaker under specified circumstances.
2)Requires that the nurse practitioner or physician assistant
who signs such a form to be acting under the supervision of
the physician and within the scope of practice authorized by
law.
EXISTING LAW:
1)Provides that an advanced health care directive is either a
document containing (1) individual health care instruction or
(2) a power of attorney for health care. Existing law further
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establishes a process and form for an individual to give
instructions about health care decision making and designating
an agent to make decisions on his or her behalf. (Probate
Code Sec. 4670 et seq. All references are to the Probate
Code, unless otherwise indicated.)
2)Requires a request regarding resuscitative orders to be a
pre-hospital "Do Not Resuscitate" form, as specified, or an
Emergency Medical Services Authority (EMSA) approved POLST
form. (Section 4780.)
3)Establishes the POLST form and requires the form to be
completed by a health care provider based on patient
preferences and medical indications, and signed by a physician
and the patient or his or her legally recognized health care
decision-maker. (Section 4780.)
4)Requires the health care provider, during the process of
completing the form, to inform the patient about the
difference between an advance health care directive and the
POLST form. (Section 4870 et seq.)
5)Protects a health care provider from liability regarding a
resuscitative measures if the health care provider (1)
believes in good faith that his or her action is consistent
with the applicable law, and (2) has no knowledge that the
action or decision would be inconsistent with a health care
decision that the individual would have made on his or her own
behalf under like circumstances. (Section 4782.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
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COMMENTS: The POLST Paradigm is a clinical process designed to
facilitate communication between health care professionals and
patients (or their authorized surrogates in cases where the
patients themselves do not have the capacity to make health care
decisions) who are very ill or very frail. The process
encourages patients and their families to participate in
planned, shared, and informed medical decision-making that
respects the patients' goals for care in regard to the use of
cardiopulmonary resuscitation and other medical interventions.
The POLST paradigm promotes the use of a highly visible,
portable medical form, known as a POLST form, which transfers
from one setting to another with the patient. It functions as a
Do Not Resuscitate order and provides treatment direction for
multiple health situations. The form itself is outcome neutral.
Its options range from full treatment to comfort care only.
The POLST form is neither an advance directive, nor a
replacement for advance directives. However, like an advance
directive, the POLST form is helpful for communicating patient
wishes to health care providers. While an advance directive is
a form in which an individual appoints a person or persons to
make health care decisions for the individual if and when the
individual loses capacity to make health care decisions (health
care power of attorney) and/or provides guidance or instructions
for making health care decisions (living will), the POLST
consists of a set of medical orders that applies to a limited
population of patients and addresses a limited number of
critical medical decisions. The POLST form is a complement to
advance directives in that it serves as a translation tool for
continuity of care.
As of January 1, 2014, 24 states offered POLST programs. In the
majority of those states (14 of 24), RNs and PAs were allowed to
sign a POLST form. California is one of only nine states that
allow only physicians to sign POLST forms. (New Jersey allows a
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physician or "Advanced Practice Nurse" to sign the form.
(2H-134(b)(3).)
POLST Implementation in California. As published in an August
10, 2012 article in the Journal of General Internal Medicine,
Implementation of Physician Orders for Life Sustaining Treatment
in Nursing Homes in California: Evaluation of a Novel Statewide
Dissemination Mechanism, 82 percent of the 546 California
nursing homes responding to a statewide survey of nursing homes
reported that their staff received POLST education. Fifty-nine
percent of responding nursing homes reported having a formal
policy on POLST. Two-thirds had admitted a resident with a
POLST and 15 percent of newly admitted residents over the past
month had a POLST. Few nursing homes reported difficulty
following POLST orders, but 38 percent noted difficulty
involving physicians in POLST completion.
A 2013 article in the Journal of American Geriatrics Society,
Implementing Physician Orders for Life-Sustaining Treatment in
California Hospitals: Factors Associated with Adoption,
indicates that 65 percent of hospitals which responded to a
survey had a policy on POLST. Eighty-seven percent of the
hospitals made POLST forms available, 84 percent had educated
staff, and 94 percent reported handling POLST properly in the
emergency department upon admission of patients. Although the
POLST form is widely used in California, a significant number of
hospitals remain unprepared three years after implementation.
Among consumers, a 2010 survey commissioned by the California
Healthcare Foundation regarding POLST use in California nursing
homes found overall satisfaction with the forms among residents.
The survey also revealed that more than one third of nursing
homes reported difficulty in obtaining physician participation
in POLST completion and having physicians sign the POLST.
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(Wenger et al.: POLST Dissemination in California Nursing Homes,
J Gen Intern Med 28(1): 51-7;
http://www.polst.org/wp-content/uploads/2013/01/wenger_JGIM.pdf
)
ARGUMENTS IN SUPPORT: In support of the bill, the California
Medical Association writes that the POLST improves communication
between patients and health care providers:
POLST also helps patients talk with their healthcare team
and loved ones about their choices. In this way, POLST can
help reduce patient and family suffering by making sure
that patient wishes are known and honored. While patients
discuss POLST with other members of the healthcare team,
NPs and PAs, in addition to their physician, currently the
POLST does not become actionable until signed by both the
patient or their health care decision maker and their
physician. Therefore, to help increase POLST utilization
and availability, this bill allows NPs and PAs under a
physician's supervision to also sign POLST forms.
In support of the bill, the author writes,
The POLST is viewed by health care professionals as useful,
helpful, reliable and most importantly, very effective at
ensuring preferences for end-of-life care are honored.
Physicians recognize and appreciate the value of the
multiple member health care team and support efforts to
increase productivity while ensuring quality of care. NPs
and PAs are currently having conversations with patients
about their end-of-life care options and preferences, and
in some instances are able to sign off on other immediately
actionable documents under supervision, such as drug orders
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and medical certificates. By allowing NPs and PAs under
physician supervision to sign POLST forms, this bill will
improve end-of-life care by increasing the availability of
actionable medical orders for medically indicated care
consistent with patient preferences.
ARGUMENTS IN OPPOSITION: The California Right to Life Committee
criticizes the bill for "not only replac[ing] the physician with
a lower level of medically trained health care decision maker
but even further remov[ing] the patient himself from the
decision making process by assigning the title of "legally
recognized health care decision maker" to nurse practitioners
and nursing assistants who will determine when or if this
person's life is no longer to be considered worthy of
restorative health care treatment." However, the California
Association of Nurse Practitioners points out that "Nurse
practitioners (NPs) are advanced practice registered nurses who
are licensed by the Board of Registered Nursing and have pursued
higher education, either a master's or doctoral degree, and a
certification as a NP." Other supporters, such as the AARP,
point out that "health team members such as NPs and PAs . . .
are already discussing health care decisions with patients
and/or their decision makers regarding the levels of medical
intervention identified on the POLST form. The Right to Life
Committee mistakenly assumes that the bill assigns the title of
"legally recognized health care decision maker" to nurse
practitioners and nursing assistants. In fact, the decision
maker is always the patient himself or herself, except when the
patient lacks capacity, in which case the "legally recognized
health care decisionmaker" is empowered to make decisions on
behalf of the patient. A legally recognized health care
decisionmaker is only allowed to execute the Physician Orders
for Life Sustaining Treatment form if and when the patient lacks
capacity, or the individual has designated that the
decisionmaker's authority is effective pursuant to Section 4682.
(Section 4680(b).) Finally, the California Right to Life
Committee is mistaken in its conclusion that it is "nurse
practitioners and nursing assistants who will determine when or
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if this person's life is no longer to be considered worthy of
restorative health care treatment" because physicians do not
currently make such decisions for patients and the bill does not
propose that RNs and PAs make those decisions in the future.
End of life treatment decisions are only made by the patient or,
if the patient lacks capacity, a "legally recognized health care
decisionmaker," who is likely to be the patient's family member
or loved one.
Prior Related Legislation: AB 2452 (Pan, 2014) would have
required the Secretary of State (SOS) to establish an electronic
process for submittal and retrieval of advance health care
directives (AHCDs). Died in the Senate Judiciary Committee.
SB 1357 (Wolk, 2014) would have required the California Health
and Human Services Agency, on or before January 1, 2016, to
establish and operate a statewide registry system, to be known
as the California POLST Registry, for the purpose of collecting
POLST forms received from health care providers, who would be
required to submit the forms to the registry unless a patient or
his or her health care decisionmaker chooses not to participate.
Died in Senate Appropriations Committee.
AB 300 (Wolk, Chapter 266, Statutes of 2008) created POLST in
California, which is a standardized form to reflect a broader
vision of resuscitative or life sustaining requests and to
encourage the use of POLST orders to better handle resuscitative
or life sustaining treatment consistent with a patient's wishes.
AB 1676 (Richman, Chapter 434, Statutes of 2005) created the
Advance Directives and Terminal Illness Decisions Program, which
required the development of information about end of life care,
advance health care directives, and registration of the advance
health care directives at the Advance Health Care Directive
Registry.
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AB 2442 (Canciamilla, Chapter 882, Statutes of 2004) required
the Secretary of State to receive and release a person's advance
health care directive and transmit the information to the
Advance Health Care Directive Registry of another jurisdiction
upon request.
AB 891 (Alquist, Chapter 658, Statutes of 2000) established the
Health Care Decisions Law which also governs advance health care
directives.
SB 1857 (Watson, Chapter 1280, Statutes of 1994) required the
Secretary of State to establish a central registry for power of
attorney for health care or a Natural Death Act declaration.
This legislation was repealed and replaced by the Health Care
Decisions Law.
REGISTERED SUPPORT / OPPOSITION:
Support
California Medical Association (sponsor)
AARP
American College of Emergency Physicians, California Chapter
Blue Shield of California
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California Assisted Living Association
California Association for Health Services at Home
California Association of Nurse Practitioners
California Long-Term Ombudsman Association
LeadingAge California
Several individuals
Opposition
California Right to Life Committee
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334
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