BILL ANALYSIS                                                                                                                                                                                                    



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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