BILL ANALYSIS Ó SB 19 Page 1 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including, but not limited to the following: SB 19 Page 2 a) The means by which a POLST form may be submitted or withdrawn from the registry, including a method for electronic delivery of the information and the use of electronic signatures; b) Appropriate and timely methods for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. SB 19 Page 3 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 SB 19 Page 4 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 SB 19 Page 5 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 SB 19 Page 6 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 SB 19 Page 7 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 SB 19 Page 8 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 SB 19 Page 9 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. SB 19 Page 10 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 SB 19 Page 11 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 SB 19 Page 12 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 SB 19 Page 13 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 SB 19 Page 14 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 SB 19 Page 15 California Advocates for Nursing Home Reform (unless amended) Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097