BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 1357 (Wolk)
As Amended April 21, 2014
Hearing Date: April 29, 2014
Fiscal: Yes
Urgency: No
NR
SUBJECT
Physician Orders for Life Sustaining Treatment Form: Statewide
Registry
DESCRIPTION
This bill, the California Physician Orders for Life Sustaining
Treatment (POLST) Act, would require the California Health and
Human Services Agency (CHHS) to operate a statewide registry
system for the purpose of collecting POLST forms from health
care providers and disseminating that information to authorized
users. This bill would require CHHS to adopt rules for the
operation of the registry, and would require that any disclosure
of POLST form information be made in accordance with applicable
federal privacy laws.
This bill would provide immunity for authorized users who obtain
information from the registry and act in good faith, as
specified.
BACKGROUND
End-of-life is one of the most difficult stages of life and in
great need of attention to improve the care and experience of
dying individuals. Data reveals that the majority of
Californians prefer to spend their last months in a non-hospital
setting, free of pain, and making sure their family is not
burdened by their care. Although 70 percent of Californians
indicate they would prefer to die a natural death at home, only
32 percent of deaths occurred at home. In addition, care
provided at the end of life consumes a disproportionate share of
costs. (Let's Get Healthy California, Task Force Final Report,
(more)
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December 19, 2012.)
A number of options exist for those who wish to control their
end-of-life care. Patients may create a "request regarding
resuscitative measures," which is a written document signed by
the patient and the patient's physician, that directs a
healthcare provider regarding resuscitative measures. These
typically come in the form of a "do not resuscitate" order/form
(DNR), or a Physician Orders for Life Sustaining Treatment form
(POLST). Patients may also create an advance care directive,
which is a form in which an individual appoints a person to make
health care decisions if and when the individual loses the
capacity to make those decisions for himself and/or provides
guidance or instructions for making health care decisions.
Advance health care directives, which allow another to make
health care decisions in the patient's incapacity, are much
broader in scope than the DNRs and POLSTs which are used only
in when a patient faces death if not resuscitated or if there is
not a specific medical intervention. DNRs are used when an
individual wishes, in a situation where his heart stops beating
or he stops breathing, for medical providers to not administer
any medical procedure to restart breathing or heart function.
Valid DNRs require a properly executed form, and patients are
encouraged to also wear a medallion so that first responders
will immediately know that the patient does not wish to receive
resuscitation. A copy of the DNR also goes in the patient's
permanent medical record.
POLSTs cover the DNR situation described above, but also allow
an individual to indicate what type of medical interventions she
wants when she has a pulse and/or is breathing. The options,
presented as a box one can check, are "comfort measures only,"
"limited additional interventions," or "full treatment." The
form is easy for first responders and other medical personnel to
understand, and is supposed to physically follow a patient in
the event that he or she is discharged or transferred to another
facility.
Medical professionals have found POLSTs useful in determining
how to best care for patients while respecting their end-of-life
wishes. However, POLSTs, which are paper forms, are not always
accessible and are often lost. To address the accessibility
issue, a handful of states have created POLST registries which
allow medical professionals to locate the POLST, or a copy of
it, when the paper form is not readily available. This bill
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seeks to ensure that a patient's end-of-life treatment
preferences are respected by creating a statewide registry
system to provide medical providers with electronic access to
POLST forms.
CHANGES TO EXISTING LAW
Existing law provides that an advanced health care directive is
either a document containing (1) individual health care
instruction or (2) a power of attorney for health care.
Existing law further establishes a process and form for an
individual to give instructions about health care decision
making and designating an agent to make decisions on his or her
behalf. (Prob. Code Sec. 4670 et seq.)
Existing law requires the Secretary of State to establish a
registry system where advance health care directives may be
registered in a central information center, and that information
may be made available upon request to any health care provider,
the public guardian, or the legal representative of the
registrant. (Prob. Code Sec. 4800.)
Existing law prohibits failure to register with the Secretary of
State from affecting the validity of any advance health care
directive. (Prob. Code Sec. 4803.)
Existing law requires the Secretary of State to work with the
State Department of Health Care Services (DHCS) and the office
of the Attorney General (AG) to develop information about end of
life care, advance health care directives, and registration of
the advance health care directives with the registry. (Prob.
Code Sec. 4806.)
Existing law requires a request regarding resuscitative orders
to be a pre-hospital "Do Not Resuscitate" form, as specified, or
an Emergency Medical Services Authority (EMSA) approved POLST
form. (Prob. Code Sec. 4780.)
Existing law establishes the Physician Orders for Life
Sustaining Treatment (POLST) form and requires the form to be
completed by a health care provider based on patient preferences
and medical indications, and signed by a physician and the
patient or his or her legally recognized health care
decision-maker. Existing law requires the health care provider,
during the process of completing form, to inform the patient
about the difference between an advance health care directive
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and the POLST form. (Prob. Code Sec. 4870 et seq.)
Existing law protects a health care provider from liability
regarding a resuscitative measure if the health care provider
(1) believes in good faith that his or her action is consistent
with the applicable law, and (2) has no knowledge that the
action or decision would be inconsistent with a health care
decision that the individual would have made on his or her own
behalf under like circumstances. (Prob. Code Sec. 4782.)
This bill would require the California Health and Human Services
Agency (CHHS) to establish and operate a statewide registry
system, to be known as the California POLST Registry, for the
purpose of collecting POLST forms from a health care providers
and disseminating the information in the form to authorized
users.
This bill would authorize the registry to be operated and
maintained by a contractor of CHHS, and would require CHHS to
adopt all rules necessary for the operation of the registry,
including:
the means by which a POLST form may be submitted to the
registry, revised, and revoked and include a method for
electronic delivery of this information and the use of legally
sufficient electronic signature;
appropriate and timely methods by which the information in the
registry may be disseminated to an authorized user;
procedures for verifying the identity of an authorized user;
and
procedures to ensure the accuracy of and to appropriately
protect the confidentiality of POLST forms submitted to the
registry.
This bill would make the registry and the information it
contains the property of the state and any disclosure of
information in POLST forms received by the registry to be made
in a manner consistent with the federal Health Insurance
Portability and Accountability Act of 1996.
This bill would require a health care provider who completes a
POLST with a patient or his or her legally recognized health
care decision-maker to submit a copy of the POLST to the
registry unless the patient or the decision-maker chooses not to
participate in the registry.
This bill would provide that an authorized user acting upon
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information obtained from the registry is not subject to
criminal prosecution, civil liability, discipline for
unprofessional conduct, administrative sanction, or any other
sanction if that person acted in good faith and had no knowledge
that the action or decision would be inconsistent with a health
care decision that the individual signing the request would have
made on his or her own behalf under like circumstances.
This bill would define an "authorized user" as a person
authorized by CHHS to submit information to, or to receive
information from, the POLST registry, including health care
providers.
COMMENT
1.Stated need for the bill
According to the author:
Currently, the POLST form is a paper document and a key
barrier to the effectiveness of the POLST is inaccessibility
of the document which is intended to guide care. 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 support specifically designed to expedite meaningful
use of electronic health records, many states are developing
electronic registries and/or other systems facilitating the
completion of, and access to POLST forms.
2.Responsibilities of emergency medical providers under this
bill
This bill would require a medical provider who completes a POLST
to submit a copy to the POLST registry unless the patient
chooses not to participate in the registry, and would create
immunity for any authorized user of the registry who has acted
in good faith and without knowledge that his or her action would
be inconsistent with that of the patient if the patient could
have acted on his own behalf.
The immunity under this bill is nearly identical to the
protections extended to health care providers under existing law
dealing with resuscitative measures (i.e., DNRs and POLSTs).
Thus, including it in this bill will not change the liability
for health care providers acting in good faith but as applied to
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this context the immunity could insulate health care providers
from a wrongful death law suit when they relied on data that was
inaccurately entered or transmitted from the POLST Registry. As
discussed in Comment 3, this bill raises the question of whether
state or contractor operating the registry should be liable in a
wrongful death suit resulting from inaccurate information
received from the POLST registry.
In addition, creating a POLST registry arguably creates new
responsibilities for health care providers. In theory, POLST
forms are posted for medical providers to see. Emergency
medical technicians (EMTs) often look on a patient's
refrigerator when called to someone's home, and in health care
facilities, the POLST form is posted outside the patient's door.
The author argues that "the problem is that paper POLST forms
are often lost, misplaced, or not efficiently communicated
between electronic medical records?healthcare providers must by
default provide aggressive care like cardiopulmonary
resuscitation and intensive care." In support of this bill the
WISE & Healthy Aging Long-Term Care Ombudsman Program writes:
The POLST tool is rendered useless if it does not physically
move with the person to each treatment setting. SB 1357 would
remedy that by providing a registry that a medical
professional could access to obtain these important documents.
However, after the creation of a registry, it is not clear
whether health care professionals and first responders, such as
EMTs, will be required to access an online database prior to
administering medical treatment. If not required by statute,
health care providers could be required by an employer's policy
to check for POLST instructions. Arguably, this could create an
extra, and potentially time consuming, step before an individual
is provided life-saving treatment, and could have the unintended
consequence of compromising the quality of care for individuals
who have not created a POLST. In response, the author writes
"our bill encourages but doesn't mandate EMT's look for POLST
forms. They can utilize the dispatch center which serves as a
hub of communication and retrieving information about a
patient."
Staff notes that the bill does not create or require a dispatch
center, nor does it encourage or prohibit health care
professionals to look for POLST forms. The bill, as written,
merely requires California Health and Human Services Agency
(CHHS) to create the registry and the laws CHHS and the registry
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must comply with.
3.Liability associated with a state-run POLST registry
This bill would require CHHS to establish and operate a
statewide POLST Registry, and would require CHHS to adopt all
rules necessary for the operation of the registry. The bill
would also allow the registry to be operated and maintained by a
contractor.
In support of the bill, Vynca, a healthcare technology company
specializing in electronic POLST documentation and registry
integration, writes that they have the "the technical capability
and experience to contribute the technical infrastructure of the
proposed California POLST registry." Vynca is currently
assisting the state of Oregon with an electronic implementation
for their POLST completion, and fully supports a similar
construct in California.
Staff notes that healthcare providers in Oregon currently access
the POLST registry through a telephone hotline, because the
electronic format and retrieval system is not yet completed.
Thus, it is difficult to say how such a system will function, or
whether it will work well for California's substantially larger
population and different health care structure. For example,
with the 38 million people in California, if EMTs call to check
the registry on the way to each emergency, it would appear to
require significant staff and resources to field these calls 24
hours a day.
Furthermore, the presence of an electronic registry raises
issues of liability if the system malfunctions, if there is a
security breach, or if data is entered inaccurately. These
questions of liability are further complicated by the presence
of a contractor. Those liability issues could take the form of
a wrongful death suit against the state or contractor as a
result of inaccurate information which resulted in the death of
an individual at a time when his or her life could have been
saved.
For example, imagine the scenario where a health care provider
goes to the aid of a person in cardiac arrest and cannot
physically locate a POLST form. The doctor then accesses the
POLST registry and finds a form associated with the patient by
name and birthday. The electronic POLST information indicates
that the patient wishes to die a natural death, and has agreed
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to forgo any resuscitation. The doctor therefore allows the
patient to die, only to subsequently discover from the family
who produces the original POLST form that the information the
physician received from the registry was inaccurate and the
patient wished to be resuscitated.
Given the recent challenges that the State of California has had
with respect to information technology, staff notes that the
above issues could be addressed if patient wore a medallion that
clearly states his or her wishes, or by requiring POLST forms to
move with the patient. Regarding the use of medallions, the
Emergency Medical Services Association writes that "although
optional, use of a wrist or neck medallion facilitates prompt
identification of the patient, avoids the problem of lost or
misplaced forms, and is strongly encouraged."
4.Feasibility of state-wide registry
Arguably, there is broad consensus on the benefits of medical
providers being able to access POLST forms easily and in a
timely manner. However, there is no agreement as to how, when,
or where a registry should be implemented. In 2012, a report on
behalf of the National POLST Paradigm Task Force was published,
and questioned whether California was ready to implement a POLST
registry. The report questioned the age of California's POLST
program, and emphasized the need for statewide coordination and
leadership. The report noted that the state of health
information technology is in flux, and as of 2012 there was no
clear choice for appropriate technology to serve such a large
and diverse state. Furthermore, the report noted that, "because
emergency responders in California are overseen by 32 local
emergency medical authorities, rather than a single statewide
agency, there is no logical centralized home for the registry."
(Pathways to POLST Development: Lessons Learned, found at <
http://www.polst.org
/wp-content/uploads/2012/12/POLST-Registry.pdf> as of April 24,
2014.) It is not clear that there have been any developments
since this report was released in 2012 significant enough to
suggest that California is now ready to create a statewide
registry.
Furthermore, only six states have implemented a POLST registry,
and with varying degrees of success. Thus, there are very few
models to look to when creating California's program. Given the
experiences of other states, the author provided the Committee
with the following questions which the Legislature may want to
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consider:
How should the data be accessed? Oregon permits access
only through a telephone hotline, while other states allow
access online. Is use of mobile devises recommended?
Where should the registry be housed, and which agency or
department or private party should be responsible for its
administration?
How will the development and maintenance of the registry
be funded, and how sustainable is that funding?
Who should develop the registry? Is it advisable to
contract with a private company or university?
Should POLST forms be part of a patient's medical
records, like DNRs?
Will there be interoperability with other state health
data systems?
In response to these questions, the author argues that
"California is indeed ready for a POLST registry, largely
because from 2007 to 2012 physicians use of electronic health
records (EHR) increased from 37 percent to 59 percent and it is
likely that from 2012 to now we have seen a similar increase
toward full EHR penetration. Further, the author contends that
for the past year and half, the Coalition for Compassionate Care
of California (CCCC) has been actively exploring options for and
issues around establishing a successful electronic registry.
CCCC and the Institute for Population Health at UC Davis are
anticipating a pilot project for an electronic registry in two
regions of California (Northern & Southern). Likewise, the
California HealthCare Foundation is conducting a feasibility
study to examine what it would take to implement a successful
POLST registry in California and ensure its sustainability."
However, in consideration of the questions raised above, the
author offers the following amendment which would delay
implementation of the registry for an additional year.
Author's amendment
Delay implementation of California's POLST registry until
January 1, 2016.
1.Opposition's concerns
The California Right to Life Committee, Inc. writes in
opposition that "the POLST form does not guarantee the
individual person's total control over the possible treatments
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and therapies available [and]?exonerates the physician and any
medical team from liability by encouraging a patient to sign a
form which rejects all curative and restorative treatment."
Support : California Chapter of the American College of
Emergency Physicians; California Long-Term Care Ombudsman
Association; Coalition for Compassionate Care of California;
Congress of California Seniors; Long Term Care Ombudsman
Services of San Luis Obispo County; Riverside Family Physicians;
Vynca; WISE and Healthy Aging Long-Term Care Ombudsman Program
Opposition : California Right to Life Committee, Inc.
HISTORY
Source : Author
Related Pending Legislation : AB 2452 (Pan) would require,
commencing on January 1, 2016, the Secretary of State to
establish and maintain access, as specified, to a secure portion
of the Secretary of State's Internet Web site that provides an
electronic reproduction of an advance health care directive and
other specified documents submitted to the registry system. This
bill is currently pending in the Assembly Health Committee.
Prior Legislation :
AB 300 (Wolk, Chapter 266, Statutes of 2008) created POLST in
California, which is a standardized form to reflect a broader
vision of resuscitative or life sustaining requests and to
encourage the use of POLST orders to better handle resuscitative
or life sustaining treatment consistent with a patient's wishes.
AB 1676 (Richman, Chapter 434, Statutes of 2005) created the
Advance Directives and Terminal Illness Decisions Program, which
required the development of information about end of life care,
advance health care directives, and registration of the advance
health care directives at the Advance Health Care Directive
Registry.
AB 2442 (Canciamilla, Chapter 882, Statutes of 2004) required
the Secretary of State to receive and release a person's advance
health care directive and transmit the information to the
Advance Health Care Directive Registry of another jurisdiction
upon request.
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AB 891 (Alquist, Chapter 658, Statutes of 2000) established the
Health Care Decisions Law which also governs advance health care
directives.
SB 1857 (Watson, Chapter 1280, Statutes of 1994) required the
Secretary of State to establish a central registry for power of
attorney for health care or a Natural Death Act declaration.
This legislation was repealed and replaced by the Health Care
Decisions Law.
Prior Vote : Senate Committee on Health (Ayes 8, Noes 0)
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