BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 19 (Wolk)
          Version: March 25, 2015
          Hearing Date:   April 28, 2015
          Fiscal: Yes
          Urgency: No
          NR   
                    

                                        SUBJECT
                                           
           Physician Orders for Life Sustaining Treatment form:  statewide  
                                      registry

                                      DESCRIPTION  

          This bill, the California Physician Orders for Life Sustaining  
          Treatment (POLST) Act, would require the California Health and  
          Human Services Agency (CHHS) to operate a statewide registry  
          system for the purpose of collecting POLST forms from health  
          care providers and disseminating that information to authorized  
          users.  

          This bill would require CHHS to adopt rules for the operation of  
          the registry, including the means by which POLST forms would be  
          submitted, revised, revoked, and would require that the ability  
          to review the forms for accuracy be made available.  This bill  
          would require that the POLST form be made part of the patient's  
          official medical record, and require that any disclosure of  
          POLST form information be made in accordance with applicable  
          federal privacy laws.  

          This bill would provide immunity for authorized users who obtain  
          information from the registry and act in good faith, as  
          specified.  

                                      BACKGROUND  

          End-of-life is one of the most difficult stages of life and in  
          great need of attention to improve the care and experience of  
          dying individuals.  Data reveals that the majority of  








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          Californians prefer to spend their last months in a non-hospital  
          setting, free of pain, and making sure their family is not  
          burdened by their care. Although 70 percent of Californians  
          indicate they would prefer to die a natural death at home, only  
          32 percent of deaths occurred at home.  In addition, care  
          provided at the end of life consumes a disproportionate share of  
          costs.  (Let's Get Healthy California, Task Force Final Report,  
          December 19, 2012.)

          A number of options exist for those who wish to control their  
          end-of-life care.  Patients may create a "request regarding  
          resuscitative measures," which is a written document signed by  
          the patient and the patient's physician, that directs a  
          healthcare provider regarding resuscitative measures.  These  
          typically come in the form of a "do not resuscitate" order/form  
          (DNR), or a Physician Orders for Life Sustaining Treatment form  
          (POLST).  Patients may also create an advance health care  
          directive (AHCD), which is a document in which an individual  
          appoints a person to make health care decisions if and when the  
          individual loses the capacity to make those decisions for  
          himself and/or provides guidance or instructions for making  
          health care decisions.

          Advance health care directives, which allow another to make  
          health care decisions in the patient's incapacity, are much  
          broader in scope than the DNRs and POLSTs which are used only  
          when a patient faces death if not resuscitated or if there is  
          not a specific medical intervention.  DNRs are used when an  
          individual wishes, in a situation where his or her heart stops  
          beating or he or she stops breathing, for medical providers to  
          not administer any medical procedure to restart breathing or  
          heart function.  POLSTs cover the DNR situation described above,  
          but also allow an individual to indicate what type of medical  
          intervention he or she wants when he or she has a pulse and/or  
          is breathing.  The options, presented as a box to be checked,  
          are "comfort measures only," "limited additional interventions,"  
          or "full treatment." The form is easy for first responders and  
          other medical personnel to understand, and is supposed to  
          physically follow a patient in the event that he or she is  
          discharged or transferred to another facility. 

          Medical professionals have found POLSTs useful in determining  
          how to best care for patients while respecting their end-of-life  
          wishes.  However, POLSTs, which are paper forms, are not always  
          accessible and are reportedly often lost.  To address the  







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          accessibility issue, a handful of states have created POLST  
          registries which allow medical professionals to locate the  
          POLST, or a copy of it, when the paper form is not readily  
          available.  This bill similarly seeks to ensure that a patient's  
          end-of-life treatment preferences are respected by creating a  
          statewide registry system to provide medical providers with  
          electronic access to POLST forms.

                                CHANGES TO EXISTING LAW
           
           Existing law  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 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. (Prob. Code Sec. 4670 et seq.)

           Existing law  requires the Secretary of State to establish a  
          registry system where advance health care directives may be  
          registered in a central information center, and that information  
          may be made available upon request to any health care provider,  
          the public guardian, or the legal representative of the  
          registrant. (Prob. Code Sec. 4800.)

           Existing law  prohibits the failure to register with the  
          Secretary of State from affecting the validity of any advance  
          health care directive. (Prob. Code Sec. 4803.)

           Existing law  requires the Secretary of State to work with the  
          State Department of Health Care Services (DHCS) and the office  
          of the Attorney General (AG) to develop information about end of  
          life care, advance health care directives, and registration of  
          the advance health care directives with the registry. (Prob.  
          Code Sec. 4806.)

           Existing law  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. (Prob. Code Sec. 4780.)

           Existing law  establishes the Physician Orders for Life  
          Sustaining Treatment (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  







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          patient or his or her legally recognized health care  
          decision-maker. Existing law requires the health care provider,  
          during the process of completing form, to inform the patient  
          about the difference between an advance health care directive  
          and the POLST form. (Prob. Code Sec. 4780 et seq.)

           Existing law  protects a health care provider from liability  
          regarding a resuscitative measure 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.  (Prob. Code Sec. 4782.)
          
           This bill  would require the California Health and Human Services  
          Agency (CHHS) to establish and operate a statewide registry  
          system (Registry) for the purpose of collecting POLST forms from  
          health care providers or their designees, and disseminating the  
          information in the form to authorized users.  

           This bill  would allow the Registry to be operated and maintained  
          by a contractor of CHHS and would require CHHS to adopt all  
          rules necessary for the operation of the Registry, including:
           the means by which an initial or subsequent POLST form may be  
            submitted to or withdrawn from the Registry, and include a  
            method for electronic delivery of this information and the use  
            of legally sufficient electronic signatures;
           appropriate and timely methods by which the information may be  
            disseminated to an authorized user;
           procedures for verifying the identity of an authorized user;
           procedures to ensure the accuracy of, and to appropriately  
            protect the confidentiality of, POLST forms submitted to the  
            Registry;
           that a patient or his or her legally recognized health care  
            decision maker, when appropriate, receive confirmation or a  
            receipt that the patient's POLST form has been received by the  
            Registry;
           the ability of the physician who signed the POLST form, his or  
            her designee, the patient, or when appropriate, his or her  
            legally recognized health care decision maker, to review the  
            information in the patient's POLST form after it has been  
            entered into the Registry, and to confirm it is accurate,  
            prior to it being available to an authorized user; and
           the ability of a patient, or when appropriate, his or her  
            legally recognized health care decision maker, to withdraw a  







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            POLST form from the Registry.

           This bill  would require the operation of the registry to comply  
          with state and federal privacy and security laws and  
          regulations, including, but not limited to, compliance with the  
          Confidentiality of Medical Information Act (CMIA) and the  
          regulations promulgated pursuant to HIPAA.

           This bill  would require a physician, or physician designee, who  
          completes a POLST form with a patient or his or her legally  
          recognized health care decision maker, to include the POLST form  
          in the patient's official medical record and submit a copy to  
          the Registry, unless the patient or the legally recognized  
          health care decision maker chooses not to participate in the  
          Registry.

           This bill  would define authorized user as a person authorized by  
          CHHS to submit information to, or receive information from, the  
          POLST registry, including health care providers and their  
          designees.

           This bill  would protect an authorized user acting upon  
          information obtained from the registry from criminal  
          prosecution, civil liability, discipline for unprofessional  
          conduct, administrative sanction, or any other sanction, if the  
          person acted in good faith and had no knowledge that the action  
          or decision would be inconsistent with a health care decision  
          that the individual signing the POLST form would have made on  
          his or her own behalf, or on behalf of the patient, under the  
          circumstances.

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author:

            Healthcare professionals have found the POLST form very  
            useful, when they have access to it; however often times the  
            POLST form doesn't always travel along with the patient. POLST  
            orders in particular can be critical to making important  
            determinations such as whether or not to: transfer a patient  
            to a hospital; initiate intubation and mechanical ventilation;  
            or attempt resuscitation after cardiac arrest. There may be  
            only minutes in which to make these vital decisions.







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             It is important to develop an electronic registry of these  
            documents and the wishes or medical orders they contain.  
            Therefore, individuals' wishes regarding life-sustaining  
            treatments are known and honored across all health care  
            settings.

            In an era of ever-increasing technology and federal support  
            specifically designed to expedite meaningful use of electronic  
            health records, many states are developing electronic  
            registries and/or other systems facilitating the completion  
            of, and access to POLST forms.

           2.POLST forms may conflict with advance health care directives
            
           Advance health care directives (AHCD) give an individual the  
          power to give instructions about his or her own health care,  
          and/or the ability to name someone else to make health care  
          decisions for him or her in the event of incapacity. The AHCD  
          may assist in guiding inpatient treatment decisions, and is  
          recommended for all adults, regardless of their health status.  
          The POLST form, which has been described as a complement to an  
          AHCD, is different in that it is filled out by a physician, near  
          the end of life, and is generally used to guide actions by  
          Emergency Medical Personnel (EMP). 

          In the event that a patient has executed both a POLST and an  
          AHCD, to the extent that the two documents are in conflict, the  
          last executed document controls. Generally, the two documents  
          are distinct because they were designed to address different  
          topics, but there remains the potential for quite a bit of  
          overlap which can lead to challenges in determining exactly what  
          a patient's wishes are.  In 2010, California Advocates for  
          Nursing Home Reform (CANHR) wrote a policy brief and noted a  
          number of issues with the POLST form and POLST law.  CANHR  
          described the following situation where a patient's wishes were  
          overridden by the wishes of his son. 

            Unfortunately, the POLST law permits third parties to  
            expressions of a patient's preferences, undermining the  
            primary purpose of POLST and setting California privacy law  
            and advance health care decision making on their heads. For  
            example, E.H. from Fairfield, California, reports that his  
            friend wrote an AHCD directing that he receive all treatment  
            necessary to prolong his life. The friend's son (and, it  







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            should be noted, his heir) nonetheless later signed a POLST  
            directing his father receive comfort care only. His father  
            passed away soon after.

          This situation highlights the importance of the two documents  
          being read together because, arguably, the physician would not  
          have signed the POLST form if he was aware of the AHCD  
          indicating that the patient's wishes were contrary to those his  
          son was expressing.  The POLST form asks a physician to indicate  
          whether he has read a patient's AHCD, but there is no statutory  
          obligation to do so.  In addition, because an AHCD, like a will,  
          can be stored anywhere, this requirement does little to ensure  
          the physician signing a POLST knows of the AHCD's existence.   
          Storing the two documents together will help health care  
          providers easily access an AHCD, and will help ensure that  
          health care providers have all relevant information at their  
          disposal when seeking to carry out a patient's wishes. 

          Staff further notes that emergency medical technicians who  
          consult the POLST Registry would not necessarily know if a  
          patient had an AHCD, executed either prior to or after the POLST  
          form. This could lead to emergency medical decisions that are  
          not in line with a patient's expressed wishes and potentially  
          violate the controlling legal document.  Two simple safeguards  
          could arguably help ensure that the patient's wishes are  
          respected and that physicians are protected from malpractice  
          suits, and the state is protected from wrongful death law suits.  
           First, physicians should be required to review any advance  
          health care directive that the patient has completed, and  
          second, the Registry should house both advance health care  
          directives and POLST forms so that they can be viewed together.   
          Staff notes that those two safeguards would be consistent with  
          the directions on the POLST form which state: "POLST does not  
          replace the Advance Directive. When available, review the  
          Advance Directive and POLST form to ensure consistency, and  
          update forms appropriately to resolve any conflicts."  

          CANHR, in reluctant opposition to this bill writes, "we have  
          long thought that AHCDs are generally superior to POLSTs for  
          advance care planning, but under [this bill] AHCDs will continue  
          to languish in a registry system that is ancient, unused, and  
          virtually worthless. If the state is going to create a state of  
          the art registry for POLST, it ought to include AHCDs."

           3.Registry may be maintained by a contactor







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           At present, there is broad agreement regarding the benefits of  
          medical providers being able to easily access POLST forms in a  
          timely manner.  However, there is no agreement as to how, when,  
          or where a registry should be implemented.  In 2012, a report on  
          behalf of the National POLST Paradigm Task Force was published,  
          and questioned whether California was ready to implement a POLST  
          registry.  The report questioned the age of California's POLST  
          program, and emphasized the need for statewide coordination and  
          leadership. The report noted that the state of health  
          information technology is in flux, and as of 2012 there was no  
          clear choice for appropriate technology to serve such a large  
          and diverse state.  Furthermore, the report noted that, "because  
          emergency responders in California are overseen by 32 local  
          emergency medical authorities, rather than a single statewide  
          agency, there is no logical centralized home for the registry."  
          (Pathways to POLST Development: Lessons Learned, found at <  
          http://www.polst.org  
          /wp-content/uploads/2012/12/POLST-Registry.pdf> [as of April 24,  
          2014].)  

          The author argues that California is indeed ready for a  
          Registry, and has used the Oregon registry as an example of how  
          to implement a POLST registry in this state.  Vynca, a  
          healthcare technology company specializing in electronic POLST  
          documentation and registry integration that is currently  
          assisting the state of Oregon with the electronic implementation  
          for their POLST completion, testified in Committee and wrote in  
          support of SB 1357 that they have "the technical capability and  
          experience to contribute the technical infrastructure of the  
          proposed California POLST registry."  

          Staff notes, however, that healthcare providers in Oregon  
          currently access the POLST registry through a telephone hotline,  
          because the electronic format and retrieval system is not yet  
          completed.  Oregon's population is roughly 10 percent of  
          California's, and largely speaks English as a first language,  
          unlike California where over 40 percent of persons speak a  
          language other than English at home. Thus, it is difficult to  
          say how such a system will function, or whether it will work  
          well for California's substantially larger, more diverse  
          population and different health care structure. 

          Perhaps more relevant to the feasibility of a California POLST  
          Registry would be a review of how a POLST registry actually  







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          works in one or more communities in California.   The California  
          Health Care Foundation (CHCF) has studied the feasibility of a  
          California POLST Registry pilot project. That study identified a  
          number of information technology (IT) vendors who have expressed  
          an interest in and ability to develop the IT platform, along  
          with a handful of communities willing and able to serve as pilot  
          communities.   By reviewing the successes and challenges of that  
          project, should it be funded by a private foundation, CHHS will  
          arguably better understand what qualities the Registry, and the  
          contractors associated with it, must possess to be successful in  
          California.  Thus, to the extent that this bill authorizes CHHS  
          to have the Registry operated and maintained by a contractor,  
          CHHS should look to all relevant programs, including any  
          California pilot project operated with private funds, for  
          guidance in choosing contractors and where to house the  
          Registry.

           4.Liability associated with a state-run POLST registry
           
          This bill would require CHHS to establish and operate a  
          statewide POLST registry, and would require CHHS to adopt all  
          rules necessary for the operation of the registry.  The bill  
          would also allow the registry to be operated and maintained by a  
          contractor.  

          The presence of an electronic registry raises issues of  
          liability in the event that the system malfunctions, if there is  
          a security breach, or if data is entered inaccurately.  For  
          example, imagine the scenario where a health care provider goes  
          to the aid of a person in cardiac arrest and cannot physically  
          locate a POLST form. The doctor then accesses the POLST registry  
          and finds a form associated with the patient by name and  
          birthday.  The electronic POLST information indicates that the  
          patient wishes to die a natural death, and has agreed to forgo  
          any resuscitation. The doctor therefore allows the patient to  
          die, only to subsequently discover from the family who produces  
          the original POLST form that the information the physician  
          received from the registry was inaccurate and the patient wished  
          to be resuscitated. 

          California has a long history of challenges with respect to  
          information technology, dating as far back as 1994 when a failed  
          DMV system was abandoned after the state had already spent $50  
          million.  In 2012, the state controller's office reported that  
          "one of the state's biggest technology endeavors, a $371 million  







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          overhaul of the government payroll system, is beset with  
          problems and in danger of collapsing. (Chris Megerian, Overhaul  
          of California government payroll system at risk of collapse, Los  
          Angeles Times, Dec. 21, 2012.) Again in 2013, the DMV canceled a  
          technology overhaul after spending $135 million, and in 2012 the  
          Judicial Council shelved a Court Case Management System after  
          only partial implementation.  (California's courts, minus  
          computers; The Los Angeles Times, March 27, 2012.) Given the  
          above track record, this Committee's analysis of SB 1357 noted  
          concerns about the ability of the state to effectively develop a  
          database. 

          Although there was broad consensus regarding the benefits of  
          medical providers being able to access POLST forms easily, the  
          Committee questioned the reliability of presently unknown  
          contractors, software, and methods of operation. Moreover, it is  
          unclear who, if anyone at all, would be held liable in the event  
          that the program malfunctioned or information was entered into  
          the registry inaccurately. Because the POLST registry  
          necessarily deals with life and death, the Committee recognized  
          that any error could result in death and potentially a wrongful  
          death suit.   

          The immunity provision under this bill is nearly identical to  
          the protections extended to health care providers under existing  
          law dealing with resuscitative measures (i.e., DNRs and POLSTs).  
           Thus, including it in this bill will not change the liability  
          for health care providers acting in good faith, and would also  
          serve to insulate health care providers from a wrongful death  
                                                                     law suit when they relied on data that was inaccurately entered  
          or transmitted from the POLST registry.  However, as a matter of  
          policy, the question arises as to whether a contractor operating  
          the Registry could be liable in a suit resulting from the  
          inaccurate transmission of information that was reasonably  
          relied upon by a health care provider.  

          The following amendment would clarify that contractors are not  
          protected from liability under the bill, thereby ensuring that a  
          contractor could be liable in the event of negligence on its  
          part.    

             Author's amendment: 

             On page 4, strike lines 17-24, and insert "A health care  
            provider who honors a patient's request regarding  







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            resuscitative obtained from the registry is not subject to  
            criminal prosecution, civil liability, discipline for  
            unprofessional conduct, administrative sanction, or any other  
            sanction as set forth in Probate Code Section 4782."

           Support  :  AARP; Alliance of Catholic Health Care; Blue Shield of  
          California; California Assisted Living Association; California  
          Association of Physician Groups; California Chapter American  
          College of Emergency Physicians; California Commission on Aging
          California Hospital Association; California Long Term-Care  
          Ombudsman Association; Long Term Ombudsman Services of San Luis  
          Obispo County; Medical Board of California; Petaluma Valley  
          Hospital; Providence Health and Services Southern California;  
          Queen of the Valley Medical Center; Redwood Memorial Hospital;  
          Riverside Family Physicians; Santa Rosa Memorial Hospital; St.  
          Joseph Hospital, Eureka; 
          St. Joseph Hospital, Orange; St. Jude Medical Center, Fullerton 

           Opposition  :  California Advocates for Nursing Home Reform  
          (unless amended)


                                        HISTORY
           
           Source  :  The Coalition for Compassionate Care of California

           Related Pending Legislation  :

          AB 637 (Campos) would allow nurse practitioners and physician  
          assistants, acting under the supervision of the physician and  
          within the scope of practice authorized by law, to sign a POLST  
          form.  This bill was heard in the Assembly Judiciary Committee  
          on April 7, 2015, and is currently on the Assembly Floor.  
          
          AB 791 (Cooley) would require the State Medicaid Health  
          Information Technology Plan to specify the process by which  
          patient advance health care directive information would be  
          managed, including the secure preparation, storage, printing,  
          and display of the patient's advance health direction  
          information, as prescribed.  This bill is scheduled for hearing  
          in the Assembly Health Committee on April 21, 2015.

           Prior Legislation  :

          SB 1357 (Wolk, 2014) would have established a POLST registry at  







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          CHHS.  This bill was held on the Senate Appropriations suspense  
          file.  

          AB 2452 (Pan, 2014) required, commencing on January 1, 2016, the  
          Secretary of State to establish and maintain access, as  
          specified, to a secure portion of the Secretary of State's  
          Internet Web site that provides an electronic reproduction of an  
          advance health care directive and other specified documents  
          submitted to the registry system. This bill was never scheduled  
          for hearing in the Senate Judiciary Committee.

          AB 3000 (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.

          AB 2445 (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.

           Prior Vote  :  Senate Health Committee (Ayes 9, Noes 0)

                                   **************
                                          








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