BILL ANALYSIS Ó
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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