BILL ANALYSIS Ó
SB 19
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
19 (Wolk) - As Amended June 2, 2015
As Proposed to be Amended
SENATE VOTE: 40-0
SUBJECT: PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT FORM:
STATEWIDE REGISTRY
KEY ISSUES:
1)should the California Health and Human Services Agency be
required, upon determining that sufficient nonstate funds are
available for development of the registry and any related
startup costs, to establish and operate a statewide registry
system known as the California POLST Registry, for the purpose
of collecting Physician orders for life-sustaining treatment
forms received from physicians and their designees?
2)SHOULD A PHYSICIAN WHO HONORS A PATIENT'S REQUEST REGARDING
RESUSCITATIVE MEASURES OBTAINED FROM THE POLST REGISTRY HAVE
IMMUNITY FROM CRIMINAL PROSECTUTION, CIVIL LIABILITY,
DISCIPLINE FOR UNPROFESSIONAL CONDUCT, AND ANY OTHER SANCTION
FOR A HEALTH CARE PROVIDER?
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SYNOPSIS
The Physician Orders for Life Sustaining Treatment (POLST)
paradigm is a clinical process designed to facilitate
communication between health care professionals and their
patients (or their authorized surrogates, in cases where the
patients themselves do not have the capacity to make health care
decisions) who are very ill or very frail in order to
communicate the patients' goals for care in regard to the use of
cardiopulmonary resuscitation and other medical interventions to
providers of end-of-life medical care. The POLST form is
neither an advance directive, nor a replacement for advance
directives. However, like an advance directive, the POLST form
is helpful for communicating patient wishes to health care
providers. The POLST form is a complement to advance directives
in that it serves as a translation tool for continuity of care.
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. Several states are developing and a few states
have already completed a statewide registry to access POLST
forms more effectively. According to the author, it would be
helpful to healthcare providers in California, including first
responders, if there were a central database or registry that
healthcare providers can access when they need to determine a
patient's wishes for his or her end-of-life care.
This bill requires the California Health and Human Services
Agency, upon determining that sufficient nonstate funds are
available, to establish and operate the California POLST
Registry. The bill also provides immunity for physicians who
rely upon POLST forms in the POLST Registry in providing
resuscitative measures to their patients. As proposed to be
amended, the immunity provision will duplicate the section of
existing law that provides immunity to healthcare providers who
rely upon POLST forms, rather than creating a new standard for
immunity when the POLST form is found in the POLST registry.
The bill is supported by many hospitals, hospice organizations,
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physician organizations, disability advocacy organizations, and
senior organizations. It is supported, in concept, by the
California Medical Board and has no opposition. It was recently
approved by the Assembly Health Committee, where it passed by a
vote of 19-0.
SUMMARY: Requires the establishment of the POLST Registry and
provides immunity for physicians who rely upon POLST forms in
the POLST Registry in providing end-of-life medical care to
their patients. Specifically, this bill:
1)Requires the California Health and Human Services Agency
(Agency), only after determining that sufficient nonstate
funds have been received to allow for the development and any
related startup costs, to establish and operate a statewide
registry system, to be known as the California POLST Registry,
for the purpose of collecting a POLST form received from a
physician or physician's designee and disseminating the
information in the form to an authorized user.
2)Allows the registry to be operated and maintained by a
contractor of the Agency.
3)Requires the Agency to adopt all rules necessary for the
operation of the registry to ensure that information is
secure, accurate and timely and specifies that the rules
satisfy specified standards and, among other things, give a
patient (or, when appropriate, his or her legally recognized
health care decisionmaker) the ability to withdraw a POLST
form from the registry.
4)Requires the operation of the registry to comply with state
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and federal privacy and security laws and regulations,
including, but not limited to, compliance with the
Confidentiality of Medical Information Act, and the
regulations promulgated pursuant to the federal Health
Insurance Portability and Accountability Act of 1996 (Public
Law 104-191).
5)Requires a physician or physician's designee who completes a
POLST form with a patient or his or her legally recognized
health care decisionmaker to include the POLST form in the
patient's official medical record and submit a copy of the
POLST form to the registry, unless the patient or the legally
recognized health care decisionmaker chooses not to
participate in the registry.
6)Provides that a health care provider who honors a patient's
request regarding resuscitative measures obtained from the
registry shall not be subject to criminal prosecution, civil
liability, discipline for unprofessional conduct,
administrative sanction, or any other sanction.
EXISTING LAW:
1)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. (Probate
Code Sec. 4670 et seq. All references are to the Probate
Code, unless otherwise indicated.)
2)Requires the Secretary of State to establish a registry system
where advance health care directives may be registered in a
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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.
(Section 4800.)
3)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. (Section 4780.)
4)Establishes the 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 patient or his or her legally recognized health care
decision-maker. (Section 4780.)
5)Requires the health care provider, during the process of
completing the form, to inform the patient about the
difference between an advance health care directive and the
POLST form. (Section 4870 et seq.)
6)Protects a health care provider from liability regarding
resuscitative measures 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. (Section 4782.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: The Physician Orders for Life Sustaining Treatment
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(POLST) paradigm is a clinical process designed to facilitate
communication between health care professionals and their
patients (or their authorized surrogates, in cases where the
patients themselves do not have the capacity to make health care
decisions) who are very ill or very frail in order to
communicate the patients' goals for care in regard to the use of
cardiopulmonary resuscitation and other medical interventions to
providers of end-of-life medical care. The POLST paradigm
promotes the use of a highly visible, portable medical form,
known as a POLST form, which transfers from one setting to
another with the patient. The POLST form functions as a Do Not
Resuscitate order and provides treatment direction for multiple
health situations. The form itself is outcome neutral. Its
options range from full treatment to comfort care only.
The POLST form is neither an advance directive, nor a
replacement for advance directives. However, like an advance
directive, the POLST form is helpful for communicating patient
wishes to health care providers. An advance directive, also
called a "living will," is a document providing guidance or
instructions for making health care decisions that contains one
of the following: (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. (Sections 4670
et seq.) The POLST consists of a set of medical orders that
applies to a limited population of patients and addresses a
limited number of critical medical decisions. The POLST form is
a complement to advance directives in that it serves as a
translation tool for continuity of care.
As of January 1, 2014, 24 states offered POLST programs. In the
majority of those states (14 of 24), RNs and PAs were allowed to
sign a POLST form. California is one of only nine states that
allow only physicians to sign POLST forms. (New Jersey allows a
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physician or "Advanced Practice Nurse" to sign the form.
(2H-134(b)(3).)
According to the author:
The "Physician Orders for Life-Sustaining Treatment" (POLST)
is a form that contains a doctor's orders to ensure that a
patient's wishes are honored regarding medical treatment
towards the end of life. Currently, the POLST form is a paper
document, and as such, is oftentimes a key barrier to its
effectiveness given that it can be misplaced. Furthermore,
there isn't a central database or registry that first
responders can access in an emergency situation.
A statewide electronic POLST registry in 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. Several states are
developing and a few states have already completed a
statewide registry to access POLST forms more effectively.
POLST Implementation in California. As published in an August
10, 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, 82 percent of the 546 California
nursing homes responding to a statewide survey of nursing homes
reported that their staff received POLST education. Fifty-nine
percent of responding nursing homes reported having a formal
policy on POLST. Two-thirds had admitted a resident with a
POLST and 15 percent of newly admitted residents over the past
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month had a POLST. Few nursing homes reported difficulty
following POLST orders, but 38 percent 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 that 65 percent of hospitals which responded to a
survey had a policy on POLST. Eighty-seven percent of the
hospitals made POLST forms available, 84 percent had educated
staff, and 94 percent reported handling POLST properly in the
emergency department upon admission of patients. Although the
POLST form is widely used in California, a significant number of
hospitals remain unprepared three years after implementation.
Among consumers, a 2010 survey commissioned by the California
Healthcare Foundation regarding POLST use in California nursing
homes found overall satisfaction with the forms among residents.
The survey also revealed that more than one third of nursing
homes reported difficulty in obtaining physician participation
in POLST completion and having physicians sign the POLST.
(Wenger et al.: POLST Dissemination in California Nursing Homes,
J Gen Intern Med 28(1): 51-7;
http://www.polst.org/wp-content/uploads/2013/01/wenger_JGIM.pdf.)
Effect of POLST Forms on Advance Health Care Directives (and
Vice Versa). An advance health care directive (AHCD) gives 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
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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
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 a physician who signs a POLST may
not be aware of the AHCD indicating that the patient's wishes
differ from those expressed on the POLST form. 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,
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and will help ensure that health care providers have all
relevant information at their disposal when seeking to carry out
a patient's wishes.
Furthermore, 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 later expressed wishes and potentially could violate
the patient's intent expressed in the controlling 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 could house both advance
health care directives and POLST forms so that they can be
viewed together. The Committee 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."
Immunity for Healthcare Providers who Honor POLST Forms.
Existing law provides immunity for healthcare providers who rely
upon a POLST form. Section 4782 states the following:
A health care provider who honors a request regarding
resuscitative measures is not subject to criminal
prosecution, civil liability, discipline for unprofessional
conduct, administrative sanction, or any other sanction, as a
result of his or her reliance on the request, if the health
care provider (a) believes in good faith that the action or
decision is consistent with this part, and (b) has no
knowledge that the action or decision would be inconsistent
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with a health care decision that the individual signing the
request would have made on his or her own behalf under like
circumstances. (Section 4782.)
Arguably, this existing provision would immunize any healthcare
provider who relied upon a POLST form that would be found in the
new POLST registry that would be created by this bill, if it
were to become law. Nevertheless, this bill includes a
provision granting nearly identical immunity to a health care
provider who relies upon a POLST found in the registry in
providing end-of-life care:
(e) A health care provider who honors a patient's request
regarding resuscitative measures obtained from the registry
shall not be subject to criminal prosecution, civil
liability, discipline for unprofessional conduct,
administrative sanction, or any other sanction as set forth
in Section 4782 of the Probate Code.
This immunity language differs slightly from the language in
Section 4782 in that it does not include the italicized
language. It could be argued that the immunity provided under
4788 does not require proof of all of the elements set forth in
4782 (i.e. that the healthcare provider who relies on a POLST
form in the registry would have immunity by just showing he or
she "honor[ed] a patient's request regarding resuscitative
measures obtained from the registry).
In order to clarify that health care providers who rely on POLST
forms found in the registry are held to the same standards as
health care providers who rely on POLST forms that are obtained
elsewhere, the author has agreed to the following amendment:
On Page 4; line 31, after "sanction" insert the following:
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as a result of his or her reliance on the request, if the
health care provider (a) believes in good faith that the
action or decision is consistent with this part, and (b) has
no knowledge that the action or decision would be inconsistent
with a health care decision that the individual signing the
request would have made on his or her own behalf under like
circumstances,
Concerns about impact of POLST Registry on AHCDs. CANHR writes
that it "reluctantly opposes SB 19 unless it is amended to
include advance care directives (AHCDs):
CANHR has no objection to creating a POLST registry in and of
itself. . . . Since POLST was created in 2009, we have
watched it overtake AHCDs are the preferred advanced care
planning device of health care providers in the state.
Millions of dollars and countless hours have been spent
promoting the use of POLST to the point that it is used for
patients do who not have anything resembling a terminal
illness or chronic condition likely to end their lives.
POLST promotion has exacerbated some of the form's problems,
namely the form does not need to be signed by the patients
and can sometimes be used to override their actual wishes.
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.
Pending Related Legislation. AB 637 (Campos) would expand the
ability to sign a Physician Order for Life Sustaining Treatment
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Form to Nurse Practitioners and Physician Assistants. AB 637
has passed both houses of the Legislature.
REGISTERED SUPPORT / OPPOSITION:
Support
Coalition for Compassionate Care of California (sponsor)
AARP
Alliance of Catholic Health Care
Arc and United Cerebral Palsy California Collaboration
Blue Shield of California
California Accountable Physician Groups
California Assisted Living Association
California Association of Physician Groups
California Chapter American College of Emergency Physicians
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California Commission on Aging
California Hospital Association
Care Like A Daughter, LLC
California Long-Term Care Ombudsman Association
Long Term Care Ombudsman Services of San Luis Obispo County
Mission Hospital, Mission Viejo
Mission Hospital, Laguna Beach
Partnership HealthPlan of California
Petaluma Valley Hospital
Providence Health & Services Southern California
Queen of the Valley Medical Center
Redwood Memorial Hospital, Fortuna
Riverside Family Physicians
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Santa Rosa Memorial Hospital
St Mary Medical Center, Apple Valley
St. Joseph Hospital, Eureka
St. Joseph Hospital, Orange
Redwood Memorial Hospital, Fortuna
St. Jude Medical Center
The Voice of Accountable Physician Groups
Vynca
Support in Concept
Medical Board of California
Opposition
None on file
Oppose Unless Amended
California Advocates for Nursing Home Reform
Analysis Prepared by:Alison Merrilees / JUD. / (916)
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319-2334