BILL ANALYSIS                                                                                                                                                                                                    



                                                                      SB 19


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          Date of Hearing:  July 7, 2015


                            ASSEMBLY COMMITTEE ON HEALTH


                                  Rob Bonta, Chair


          SB  
          19 (Wolk) - As Amended June 2, 2015


          SENATE VOTE:  40-0


          SUBJECT:  Physician Orders for Life Sustaining Treatment form:  
          statewide registry.


          SUMMARY:  Requires the California Health and Human Services  
          Agency (CHHSA) to establish and operate a statewide registry  
          system to collect Physician Orders for Life Sustaining Treatment  
          (POLST) forms, and disseminate the information in the form to  
          authorized users, including health care providers. Specifically,  
          this bill:  


          1)Requires CHHSA to establish and operate the California POLST  
            Registry once sufficient non-state funds have been received to  
            allow for the development of the registry and any related  
            startup costs.


          2)Allows CHHSA to contract for the operation and maintenance of  
            the registry, and requires CHHSA to adopt rules necessary for  
            the operation of the registry, including, but not limited to  
            the following:









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             a)   The means by which a POLST form may be submitted or  
               withdrawn from the registry, including a method for  
               electronic delivery of the information and the use of  
               electronic signatures;


             b)   Appropriate and timely methods for the information to be  
               disseminated to an authorized user;


             c)   Procedures for verifying the identity of an authorized  
               user;


             d)   Procedures to ensure the accuracy of, and appropriately  
               protect the confidentiality of, POLST forms submitted to  
               the registry;


             e)   The requirement that a patient, or his or her legally  
               recognized health care decision maker, receive a  
               confirmation or receipt that the patient's POLST form has  
               been received by the registry;


             f)   The ability of the physician who signed the POLST form,  
               or his/her designee, and of a patient, or his/her legally  
               recognized health care decision maker, to review the  
               information in the POLST form after it has been entered  
               into the registry, and to confirm that it is accurate,  
               prior to the information being available to an authorized  
               user; and,


             g)    The ability of a patient, or his/her legally recognized  
               health care decision maker to withdraw a POLST form from  
               the registry.









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          3)Requires the operation of the registry to comply with state  
            and federal privacy and security laws and regulations,  
            including but not limited to the federal Health Insurance  
            Portability and Accountability Act.



          4)Requires a physician or his/her designee who completes a POLST  
            with a patient or his/her legally recognized health care  
            decision maker to include the POLST form in the patient's  
            official medical record, and to submit a copy of the POLST to  
            the registry unless the patient or the legally recognized  
            health care decision maker chooses not to participate in the  
            registry.


          5)Provides that a health care provider who honors a patient's  
            request regarding resuscitative measures obtained from the  
            registry is not subject to criminal prosecution, civil  
            liability, discipline for unprofessional conduct, or  
            administrative sanction.


          EXISTING LAW:  


          1)Defines a request regarding resuscitative measures as a  
            written document signed by an individual with capacity, or a  
            legally recognized health care decision maker, and the  
            individual's physician that directs a health provider  
            regarding resuscitative measures.  Specifies that a request  
            regarding resuscitative measures is not an advance health care  
            directive.
          2)Specifies that a request regarding resuscitative measures  
            includes one, or both of the following:


             a)   A do not resuscitate form developed by the Emergency  








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               Medical Services Authority (EMSA), or one substantially  
               similar; and,


             b)   A POLST form approved by EMSA. 


          3)Defines a POLST form as a request regarding resuscitative and  
            life-sustaining measures that directs a health care provider  
            regarding resuscitative and life-sustaining measures.


          4)Allows a legally recognized health care decision maker to  
            execute a POLST form only if the individual lacks capacity, or  
            the individual has designated that the decision maker's  
            authority is in effect.


          5)Requires the POLST form and medical intervention procedures  
            offered by the form to be explained by a health care provider;  
            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/her legally recognized health  
            care decision maker.  Encourages health care providers to  
            inform patients about the difference between an advance health  
            care directive and a POLST.


          6)Allows an individual with the capacity to revoke a POLST form  
            at any time.  


          7)Requires a health care provider to treat an individual in  
            accordance with a POLST, unless the POLST requires medically  
            ineffective care or care contrary to generally accepted  
            standards.  Allows a physician to conduct an evaluation of the  
            individual and, if possible, in consultation with the  
            individual or his/her legally recognized health care decision  
            maker, issue a new POLST consistent with the most current  








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            information available about the individual's health status and  
            goals of care.


          8)Specifies that a health care provider who honors a request  
            regarding resuscitative measures is not subject to criminal  
            prosecution, civil liability, discipline for unprofessional  
            conduct, or administrative sanction, if the health care  
            provider believes in good faith that the action or decision is  
            consistent with these provisions and has no knowledge that the  
            action or decision would be inconsistent with a health care  
            decision the individual signing the request would have made on  
            his/her own behalf under like circumstances.


          9)Requires the Secretary of State (SoS) to establish a registry  
            system for advance health care directives (AHCD) and make the  
            information in an AHCD available upon request to health care  
            providers, the public guardian, or the legal representative of  
            the registrant.


          10)Provides the format for an AHCD form, which outlines the  
            options for a person to designate medical decision making  
            responsibility to another, specify his or her wishes regarding  
            instructions for health care in the event he or she is unable  
            to communicate; including whether or not to the person wants  
            to prolong his or her life as long as possible, or withhold,  
            or withdraw treatment if he or she has an incurable or  
            irreversible condition.  Does not require that the exact form  
            be used when a person is creating an AHCD.


          FISCAL EFFECT:  According to the Senate Appropriations Committee  
          (as approved on May 28, 2015):  Start-up costs of about $2.5  
          million over the first three years to develop the system  
          (private funds). The California HealthCare Foundation (CHCF) has  
          commissioned a feasibility report to examine the concept of a  
          POLST registry.  According to a draft of the report, it will  








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          cost about $2.5 million to develop the information technology  
          system for an online-accessible registry and set up the program.





          Ongoing costs of about $1.3 million per year to maintain the  
          system, assist health care providers trying to access a POLST  
          form for a patient, and market the system (General Fund or other  
          unknown fund source).





          Unknown potential cost savings due to avoided unwanted medical  
          care (various fund sources). The primary purpose of a POLST and  
          the POLST registry proposed in this bill is to ensure that  
          individuals do not receive medical care they do not wish to  
          receive.  By creating a registry of POLST forms, the bill will  
          improve access to POLST forms by emergency medical services and  
          hospitals. In turn, this will lead to fewer emergency health  
          care services for individuals who do not want those services.   
          The size of this impact is unknown.


          COMMENTS:


          1)PURPOSE OF THIS BILL.  According to the author, a 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.  The author notes, 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 and there isn't a central database or registry that  
            first responders can access in an emergency situation.  The  
            author states, a statewide electronic POLST registry in  








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            California would help ensure immediate access to vital medical  
            orders by emergency medical personnel in an era of  
            ever-increasing technology and federal funding available to  
            specifically support electronic health records.  The author  
            concludes, several states are developing and a few states have  
            already completed a statewide registry to access POLST forms  
            more effectively.







          2)BACKGROUND.  

             a)   National POLST Paradigm.  According to the National  
               POLST Paradigm, the program is an approach to end-of-life  
               planning emphasizing:  advance care planning conversations  
               between patients, health care professionals and loved ones;  
               shared decision-making between a patient and his/her health  
               care professional about the care the patient would like to  
               receive at the end of his/her life; and, ensuring patient  
               wishes are honored.  As a result of these conversations,  
               patient wishes may be documented in a POLST form, which  
               translates the shared decisions into actionable medical  
               orders.  The POLST form assures patients that health care  
               professionals will provide only the treatments that  
               patients themselves wish to receive, and decreases the  
               frequency of medical errors.

             b)   POLST vs. AHCD.  The National Paradigm does not  
               recommend a POLST for everyone.  Only patients with serious  
               illness or frailty, for whom a health care professional  
               would not be surprised if they died within one year, should  
               have a POLST form.  For these patients, their current  
               health status indicates the need for standing medical  
               orders.  For healthy patients, an AHCD is deemed an  
               appropriate tool for making future end of life care wishes  








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               known.


          


                                          


                  ------------------------------------------------------ 
                 |          POLST          |            AHCD            |
                 |-------------------------+----------------------------|
                 |For seriously ill/frail, |  For anyone 18 and older   |
                 |       at any age        |                            |
                 |-------------------------+----------------------------|
                 |   Specific orders for   |  General instructions for  |
                 |    current treatment    |      future treatment      |
                 |-------------------------+----------------------------|
                 |    Can be signed by     |  Appoints decision maker   |
                 |     decision maker      |                            |
                  ------------------------------------------------------ 



               Both documents are helpful for communicating patient  
               wishes.  An AHCD is a form in which an individual appoints  
               a person to make healthcare decisions for the individual if  
               and when the individual loses that capacity.  An AHCD is  
               from the patient, not a medical order.  POLST is a set of  
               medical orders, signed by a health care provider that  
               addresses a limited number of critical medical decisions.


             c)   POLST use in California.  POLST use in California is  
               fairly wide spread.  According to a 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," a survey of 546 nursing homes  








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               found that 82% of responding skilled nursing facilities in  
               California have participated in training sessions about  
               POLST and 59% reported having a formal policy on POLST.   
               Few nursing homes reported difficulty following POLST  
               orders, but 38% 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 of 349  
               hospitals surveyed, sixty-five% of hospitals had a policy  
               on POLST, 87% had available POLST forms, 84% had educated  
               staff, and 94% reported handling POLST properly in the  
               emergency department on admission.


             d)   AHCD use in California.  The SoS maintains the AHCD  
               registry, which allows a person who has executed an AHCD to  
               register the directive with the SoS.  An AHCD can be made a  
               part of the SoS's registry by attaching a copy of the AHCD  
               to the Registration of Written Advance Health Care  
               Directive filed with the SoS.  As of April 3, 2015, there  
               are 4,907 AHCDs on file.  In the past five fiscal years, a  
               total of 2,152 written AHCDs have been filed for an average  
               of 430 filings per year.  This information is made  
               available upon request to the registrant's health care  
               provider, public guardian, or legal representative.  The  
               annual cost to maintain the registry is approximately  
               $45,000, excluding overhead costs.  Although there is a $10  
               registration fee, maintaining the registry is absorbed as  
               part of other programs and services provided by the  
               Business Programs Division through the Business Fees Fund,  
               which consists of a pool of money paid by businesses and  
               individuals that are required or permitted to file  
               documents with the SoS's office.  













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             e)   Other states.  As of December 2013, the POLST Paradigm  
               Task Force had endorsed the POLST programs of 16 states and  
               another 12 states were developing POLST implementation  
               plans.  The 16 endorsed states are:  California, Colorado,  
               Georgia, Hawaii, Idaho, Louisiana, Montana, New York, North  
               Carolina, Oregon, Pennsylvania, Tennessee, Utah,  
               Washington, West Virginia, and Wisconsin (Wisconsin has  
               been endorsed on a regional basis).
          


             f)   California Pilot Project?  In early 2014, CHCF  
               interviewed a wide range of health care stakeholders and  
               POLST leaders regarding the adoption of a POLST registry in  
               California.  Those interviewed included representatives of  
               hospital emergency departments, acute care facilities,  
               hospices, skilled nursing facilities, emergency medical  
               services, and other care providers.  Next steps identified  
               by interviewees included:



               i)     Pilot the registry in a community, with the intent  
                 to scale rapidly;
                  


               ii)    Develop a technology platform for the registry that  
                 supports multiple forms of input and output, from paper  
                 to fax to mobile devices;
                
               iii)   Expand existing POLST education infrastructure to  
                 include education about the registry;



               iv)    Engage state administrative leadership and consider  
                 development of an independently operated registry, based  
                 on the approaches of other successful California health  








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                 registries, such as the California Cancer Registry; and, 


                
               v)     Identify funding sources to build and sustain the  
                 registry. 


               CHCF is currently exploring the idea of sponsoring a POLST  
               pilot project.  They have received nine community  
               proposals, representing seven counties throughout  
               California - north and south. The next step is for CHCF to  
               meet with the sponsors of the proposals and assess the  
               level of engagement of the provider community - hospitals,  
               nursing homes and emergency medical services.  A decision  
               by CHCF's Board on whether to move forward is not expected  
               until September or December 2015. 


          3)SUPPORT.  The Coalition for Compassionate Care of California  
            (CCCC) is the sponsor of this bill and states; a POLST is a  
            physician's order that gives seriously-ill patients more  
            control over their care.  Produced on a distinctive bright  
            pink form and signed by both the doctor and patient, POLST  
            specifies the types of medical care that a patient wishes to  
            receive at the end of their life.  CCCC notes, in so doing,  
            POLST helps ensure that patients receive the care they want,  
            and avoid the care they don't.
          
          The California Assisted Living Association (CALA) supports this  
            bill because an online database will help make POLST forms  
            more accessible for health care and emergency professionals,  
            especially in the event that the paper POLST form is not  
            present.  CALA concludes this accessibility will be a positive  
            step to ensure that individuals' wishes regarding end of life  
            medical treatments are honored.
            AARP supports this bill because they believe an electronic  
            registry will successfully address the issues of portability  
            of the POLST document and respecting and abiding by the wishes  








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            of a patient regarding life sustaining treatment.


          4)OPPOSITION.  California Advocates for Nursing Home Reform  
            (CAHNR) is opposed to this bill unless it is amended to  
            include AHCDs.  CAHNR states they have no objection to  
            creating a POLST registry; however, utilizing state resources  
            to create this registry without including AHCDs represents a  
            significant missed opportunity and threatens to further  
            relegate AHCDs to second class status when it comes to advance  
            health directives.  CAHNR states that currently POLST is used  
            for patients who do not have anything resembling a terminal  
            illness or a chronic condition likely to end their lives, and  
            they believe AHCDs are superior to POLSTs for advance care  
            planning.  


          5)RELATED LEGISLATION.  


             a)   SB 128 (Wolk and Monning), permits a competent,  
               qualified individual who is a terminally ill adult to  
               receive a prescription for aid in dying drug in order to  
               end their life in a humane and dignified manner.  SB 128   
               is scheduled for hearing in the Assembly Health Committee  
               on July 7, 2015.


             b)   AB 637 (Campos) allows 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.  AB 637 is pending a vote on the Senate  
               Floor.





             c)   AB 791 (Cooley) requires the State Medicaid Health  








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               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.  AB 791 was heard in  
               the Assembly Health Committee on April 21, 2015, but no  
               vote was taken.

          6)PREVIOUS LEGISLATION.  


             a)   SB 1357 (Wolk), of 2014, would have established a POLST  
               registry at CHHS.  SB 1357 was held on the Senate  
               Appropriations suspense file.  



             b)   AB 2452 (Pan), of 2014, would have required the SoS to  
               transfer the contents of its advance health care  
               directive's registry to the Department of Public Health  
               (DPH) on January 1, 2016, and would have required DPH to  
               maintain a health care decision registry, to be referred to  
               as the California Health Care Decisions Online Registry.   
               AB 2452  was never scheduled for a hearing in the Senate  
               Judiciary Committee.



             c)   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.



          7)DOUBLE REFERRAL.  This bill is double referred; upon passage  
            in this Committee, this bill will be referred to the Assembly  








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            Judiciary Committee.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Coalition for Compassionate Care of California (sponsor)


          AARP
          Alliance of Catholic Health Care
                                                                       Blue Shield of California
          California Assisted Living Association
          California Association of Physician Groups
          California Chapter of the American College of Emergency  
          Physicians
          California Commission on Aging
          California Hospital Association
          California Long-Term Care Ombudsman Association
          Dignity Health


          Long Term Care Ombudsman Services of San Luis Obispo County
          On Lok Senior Health Services
          Partnership HealthPlan of California
          Providence Health & Services, Southern California
          Riverside Family Physicians
          St. Joseph Health - Eureka, Redwood Memorial Hospital, Santa  
          Rosa Memorial, St. Jude,  Petaluma Valley, Orange, and Queen of  
          the Valley


          Opposition









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          California Advocates for Nursing Home Reform (unless amended)
















          Analysis Prepared by:Lara Flynn / HEALTH / (916)  
          319-2097