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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