BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 791


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          Date of Hearing:  April 21, 2015


                            ASSEMBLY COMMITTEE ON HEALTH


                                  Rob Bonta, Chair


          AB 791  
          (Cooley) - As Introduced February 25, 2015


          SUBJECT:  Electronic health records.


          SUMMARY:  Requires the State Medicaid Health Information  
          Technology Plan to specify the process by which patient advance  
          health care directives (AHCD) information would be managed.   
          Specifically, this bill:  


          1)Requires the Department of Health Care Services (DHCS) to  
            change the Medi-Cal electronic health record (EHR) incentive  
            program to process and store patient AHDC information.


          2)Requires the program to allow an individual to securely  
            complete an online AHDC form expressing the individual's end  
            of life care treatment decisions.


          3)Requires the program to allow an individual to print end of  
            life decisions for signatures by the individual and a witness.


          4)Requires the program to allow for uploading signed end of life  
            decision documents.









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          5)Directs the program to display information to authorized  
            users.


          EXISTING LAW:  


       1)Enacts the Health Care Decisions Law, which governs health care  
            for adults deprived of decision-making capacity.  Codifies a  
            form for AHCDs.

       2)Allows a surrogate to make a health care decision in accordance  
            with the patient's individual health care instructions to the  
            extent known to the surrogate.

       3)Requires the Secretary of State (SoS) to establish a registry for  
            people who have a written AHCD.

       4)Requires SoS to issue a registrant an AHCD registry  
            identification card indicating that an AHCD, or information  
            regarding an AHCD, has been deposited with the registry.   
            Costs associated with issuance of the card shall be offset by  
            the fee charged by the SoS to receive and register information  
            at the registry.

       5)Requires SoS to provide the information about the AHCD to any  
            health care provider, the public guardian or legal  
            representative of the person who registered by the close of  
            the next business day.

       6)Requires hospitals, within 24 hours to contact a person who can  
            make health care decisions for a patient who is unconscious or  
            otherwise incapable of communication.  Establishes a hospital  
            has met its duty if it attempts specified actions including  
            contacting the SoS to determine if the patient has registered  
            an AHCD with SoS.










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          FISCAL EFFECT:  This bill has not yet been analyzed by a fiscal  
          committee.


          COMMENTS:  


          1)PURPOSE OF THIS BILL.  According to the author, in numerous  
            conversations with the author's constituents, people have  
            agreed the problem is a real one and this bill would afford  
            families a very valuable improvement and solution.  The author  
            explains this bill was introduced in response to research by  
            the students in the Elder Law Clinic and the Legislative and  
            Public Policy Clinic at McGeorge School of Law.  The lack of  
            an easily accessible and widely utilized system for recording  
            and retrieving patient decisions for end-of-life care has  
            resulted in confusion and misunderstandings.  When medical  
            practitioners are faced with ambiguous or conflicting reports,  
            they err on the side of caution and prolonging life.  One  
            recent study suggests that as many as 20% of patients in an  
            emergency setting receive unwanted treatment.


            The author states this bill relies on an existing system  
            making it far less expensive to add onto an existing Hospital  
            and HMO database than to create one from the ground up and it  
            charges the EHRs system provider, the expert in this  
            technology, with the responsibility for developing the system  
            rather than a state agency that may not have the same level of  
            expertise.  The author also notes this approach takes  
            advantage of federal funds since the allocation has already  
            been made to implement an electronic health records database.   
            The author concludes this approach grants physicians and  
            emergency-service providers access to this vital information  
            within the same system that they are gathering other vital  
            information. 










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          2)BACKGROUND.  An AHDC is a set of written instructions that a  
            person gives that specifies what actions should be taken for  
            their health, if they are no longer able to make decisions  
            because of illness or incapacity.  The document can take many  
            forms, including a living will, personal directive, advance  
            directive, or advance decision.  California does not provide  
            for a living will in law, only an AHCD.


            The California Probate Code defines AHCD as an individual  
            health care instruction or a power of attorney for health  
            care.  Current law codifies a statutory AHCD form that  
            includes an explanation of each part, an explanation of the  
            duties of a designated agent, and instructions for signing the  
            form, including an explanation of witnessing requirements or  
            notarization requirements.  The use of this form is optional,  
            and does not preclude the use of additional or different  
            forms.


            The demand and need for AHCDs in partly in response to the  
            increasing sophistication and prevalence of medical  
            technology.  The improvements in health care have led to  
            significant changes in the death experience of many Americans.  
             Of U.S. deaths, 50%-75% occur in health care facilities.   
            People are more likely to die of a chronic condition with  
            their deterioration and eventual death occurring after a  
            prolonged period rather than the result of a sudden incident,  
            such as a fatal heart attack or accident.  Researchers have  
            documented that medical care for the dying can be  
            unnecessarily prolonged, painful, expensive, and emotionally  
            burdensome to both patients and their families.


            AHDCs gained widespread usage among health care professionals  
            when it appeared in the Patient Self-Determination Act (PSDA),  
            a federal statute enacted as part of the federal Omnibus  
            Budget Reconciliation Act of 1990.  The PSDA required health  
            care facilities receiving Medicare funding to provide each  








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            patient with information about AHDCs.


            "Physician Orders for Life-Sustaining Treatment" (POLST) is a  
            form that contains a doctor's orders to ensure that a  
            patient's wishes are honored regarding medical treatment  
            towards the end of life.  Currently, the POLST form is a paper  
            document, and as such, is oftentimes a key barrier to its  
            effectiveness given that it can be misplaced. Furthermore,  
            there isn't a central database or registry that first  
            responders can access in an emergency situation.  The POLST is  
            a product of a clinical process to facilitate communication  
            between health care professionals and patients with serious  
            illness or frailty (or their authorized surrogate) where the  
            health care professional would not be surprised if the patient  
            died within the next year.  The process encourages shared,  
            informed medical decision-making leading to a set of portable  
            medical orders that respects the patient's goals for care in  
            regard to the use of cardiopulmonary resuscitation and other  
            medical interventions, is applicable across health care  
            settings, and can be reviewed and revised as needed.


          3)REGISTRY EXPERIENCE.  Currently, the SoS holds the  
            responsibility for the operation of California's AHDC  
            Registry.  The registry allows a person that has completed an  
            AHDC to register information about the directive with the SOS.  
             The SOS, upon written request, makes the advanced health care  
            directive available to the registrant's health care provider,  
            public guardian, or legal representative.  This largely  
            paper-based process currently takes approximately one week to  
            respond to a physician inquiry, resulting in the advance  
            directives being unavailable to physicians in emergency rooms  
            and other crisis settings where death may be imminent.   
            Moreover, the registry is woefully underutilized with only 450  
            directives filed annually and, at most, 93 requests for  
            information per year. 










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            Because there are so few registered AHCDs, the registry is  
            rarely used and many physicians are unaware of its existence.   
            California is not the only state facing difficulties  
            establishing a registry.  The State of Washington ended its  
            living well registry in 2011.  Only 2500 people had registered  
            and the fees could not support the program operations.

          4)SUPPORT.  Supporters argue this bill will speed up the process  
            by which doctors receive important information about a  
            patient's treatment and medical care wishes via an AHCD.  They  
            all cite problems with the hardcopy process the SoS uses in  
            the current registry.  


            The California Academy of Family Physicians has a position of  
            support if amended.  They agree with the intent of this bill,  
            citing the problems with the current SoS's registry of  
            hardcopy AHCDs.   They request an amendment that all important  
            end-of-life forms, such as POLST be included in this bill, so  
            that all forms patients may have regarding end of life health  
            care decisions are accessible to providers.


          5)OPPOSITION.  The California Right to Life Committee opposes AB  
            791 unless amended to address their concerns regarding  
            privacy.  They are seeking amendment to clarify the patient is  
            the only person with the right to complete and submit a health  
            form and not health care providers.


          6)RELATED LEGISLATION.  SB 19 (Wolk) Establishes a POLST  
            Registry operated by the California Health and Human Services  
            Agency (CHHS) for the purpose of collecting a POLST form  
            received from a physician, or his or her designee, and  
            disseminating the information in the form to persons  
            authorized by CHHS.  This bill is awaiting hearing in Senate  
            Judiciary.










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          7)PREVIOUS LEGISLATION.  


             a)   AB 2452 (Pan) of 2014 would have required the SoS to  
               establish an electronic process for submittal and retrieval  
               of AHDCs.  AB 2452 was held in the Senate Judiciary  
               Committee.  

             b)   SB 1357 (Wolk) would have developed an online database  
               for the POLST form only.  SB 1357 was held under submission  
               on the Senate Appropriations Committee's suspense file.

             c)   AB 2445 (Canciamilla), Chapter 882, Statutes of 2004,  
               authorized issuing an identification card and allowed the  
               SoS to charge a fee for the AHDC registry.



             d)   AB 891 (Alquist), Chapter 658, Statutes of 1999,  
               establishes the Health Care Decisions Law, which also  
               governs AHDCs, including establishing the program at the  
               SoS.



             e)   SB 945 (Committee on Health), Chapter 433, Statutes of  
               2011, creates the requirements for the State Medicaid  
               Health Information Technology Plan.
            
          1)POLICY COMMENTS.



             a)   Two ADHC Directories.  This bill creates a second state  
               system that holds an inventory of end of life directives.   
               Although the program administered by the SoS is small and  
               unsuccessful, a second program would lead to confusion and  
               duplication of effort.









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             b)   Administrative Agency Fit.  This bill probably places  
               the program in the wrong agency.  DHCS is an administrator  
               and payor of health care programs for specified  
               populations, chiefly Medi-Cal.  The AHCDs program is not a  
               health care program and could be better placed in another  
               agency.  



             c)   Information technology issues.  This bill makes the  
               newly created system part of the state's plan for  
               increasing EHRs use among Medi-Cal providers.  If, as the  
               bill requires, individuals will have to access for purposes  
               of uploading and downloading documents, this is likely to  
               require redesign of the system and raises security issues  
               of public access to a system limited to health care  
               providers.



             d)   Possible fiscal issues.  The plan that is being amended  
               by this bill is a Medi-Cal administrative function that is  
               paid for by state and federal funds.  It is part of the  
               Medi-Cal program.  This bill requires the plan to develop  
               procedures and requirements for processing advanced health  
               care decisions, presumably to all Californians and not just  
               Medi-Cal beneficiaries.  Federal requirements do not allow  
               for federal funds to be used for program for individuals  
               who are not Medi-Cal beneficiaries.  The federal match is  
               not available for this program.  Indeed enactment of the  
               bill would jeopardize further federal funding and may  
               necessitate paying the federal government back for some of  
               the funds used to develop and administer the plan.  
              


          REGISTERED SUPPORT / OPPOSITION:








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          Support


          American Federation of State, County and Municipal Employees,  
          AFL-CIO


          California Academy of Family Physicians


          California Chapter of the American Academy of Emergency  
          Physicians




          Opposition


          California Right to Life Committee




          Analysis Prepared by:Roger Dunstan / HEALTH / (916) 319-2097


















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