Evolution of State POLST Programs: Legal and Regulatory Issues Charlie Sabatino - ABA Commission on Law & Aging Naomi Karp - Consumer Financial Protection Bureau (formerly AARP Public Policy Institute) February 16, 2012

Study Components Based on exploratory survey in 2010 of key informants in 12 states that ostensibly recognize POLST statewide at that time.Based on exploratory survey in 2010 of key informants in 12 states that ostensibly recognize POLST statewide at that time. 52 telephone interviews: all open-ended questions. Ranged from 3 to 7 per state52 telephone interviews: all open-ended questions. Ranged from 3 to 7 per state Analysis of themes and experience in establishing & implementing POLSTAnalysis of themes and experience in establishing & implementing POLST Legislative/regulatory review.Legislative/regulatory review.

Legislative/Regulatory Comparison 1. Terminology POLST – 7POLST – 7 POST – 2POST – 2 MOLST – 1MOLST – 1 MOST – 1MOST – 1 COLST – 1COLST – 1

Legislative/Regulatory Comparison 2. Placement in the state code In Health Decisions Act: CA, ID, UT, VT*In Health Decisions Act: CA, ID, UT, VT* In Health Code generally: HIIn Health Code generally: HI In Family HC Decisions Act referencing DNR law: NY*In Family HC Decisions Act referencing DNR law: NY* In Med Mal provisions: NCIn Med Mal provisions: NC In Health Facilities provisions for universal DNR: TN*In Health Facilities provisions for universal DNR: TN* In DOH authorizing provisions: WA*In DOH authorizing provisions: WA* In DNR law: WVIn DNR law: WV Non-statutory: MN, ORNon-statutory: MN, OR *Details left to regulation *Details left to regulation

Legislative/Regulatory Comparison 3. Regulations/ Guidelines In most cases, the form is approved by a regulatory body with jurisdiction over EMS, or health facilities, or health professions.In most cases, the form is approved by a regulatory body with jurisdiction over EMS, or health facilities, or health professions. Guidelines typically developed by NGOs.Guidelines typically developed by NGOs. ID, NC: EMS Division provides detailed guidelinesID, NC: EMS Division provides detailed guidelines TN, UT, VT: procedures in formal regulation.TN, UT, VT: procedures in formal regulation.

Legislative/Regulatory Comparison 4. Provider signature required Physician only: CA, HI, ID, NY, TN, WVPhysician only: CA, HI, ID, NY, TN, WV NP/PA and others: MN, NC, OR, UT, VT, WANP/PA and others: MN, NC, OR, UT, VT, WA TN: Physician verbal order OK w/ confirming signatureTN: Physician verbal order OK w/ confirming signature

Legislative/Regulatory Comparison 5. Patient signature required? All Yes except: MN, OR, NY but all provide signature line and recommend.All Yes except: MN, OR, NY but all provide signature line and recommend. NY recommends 2 witnesses.NY recommends 2 witnesses. VT: signature for DNR not necessary if futile and 2nd clinician certifiesVT: signature for DNR not necessary if futile and 2nd clinician certifies Separate signature for DNR consent and other treatments: NY, VTSeparate signature for DNR consent and other treatments: NY, VT NC: Pt. rep can approve orally, then sign copy for med record.NC: Pt. rep can approve orally, then sign copy for med record.

Legislative/Regulatory Comparison 6. Surrogate signature permitted? All yes, but variations as to who, how, and for whom.All yes, but variations as to who, how, and for whom. 7. Applicable to minors All yes, except VTAll yes, except VT 8. Other execution requirements? 7 identify h.c. professional assisting in preparation: CA, HI, MN, NC, OR, UT, WA.7 identify h.c. professional assisting in preparation: CA, HI, MN, NC, OR, UT, WA. If POLST for minor forgo LST, 2 physicians must certify “best interest of the minor”If POLST for minor forgo LST, 2 physicians must certify “best interest of the minor” ID: form is completed by provider on password protected interactive web page.ID: form is completed by provider on password protected interactive web page.

Legislative/Regulatory Comparison 9. Exclusive DNR form? All noAll no 10. Immunity provided? No: only MNNo: only MN 11. Legal Duty to offer POLST? Yes: Only UT, TNYes: Only UT, TN 12. Duty to comply? Yes in 9 states, but may vary by health professional and exceptions apply.Yes in 9 states, but may vary by health professional and exceptions apply. No: MNNo: MN TN, UT: No, but if form exists, it must accompany pt if transferredTN, UT: No, but if form exists, it must accompany pt if transferred

Legislative/Regulatory Comparison 13. Original vs. Copies/faxes? No color requirement for original: ID, MN, TN, UT, VTNo color requirement for original: ID, MN, TN, UT, VT Copies valid in all states, except NC: pink original must be used.Copies valid in all states, except NC: pink original must be used. WV: copies must be pink.WV: copies must be pink. 14. Conflicts with AD addressed? Most recent controls: CA, WAMost recent controls: CA, WA POLST controls: ID, NC, UTPOLST controls: ID, NC, UT AD controls: TNAD controls: TN Refers to surrogate d-m standard: NY, WVRefers to surrogate d-m standard: NY, WV Not addressed: HI, MN, OR, VTNot addressed: HI, MN, OR, VT

Legislative/Regulatory Comparison 15. Presumption if section of form left blank All “full treatment” except: NY - Section may be crossed out with notation “Decision deferred”NY - Section may be crossed out with notation “Decision deferred” VT – No presumptionVT – No presumption 16. Out-of-state POLST recognized? Yes: ID, NY, OR, UT, & WV (DNR only)Yes: ID, NY, OR, UT, & WV (DNR only) No: NC,No: NC, Not addressed: CA, HI, MN, TN, VT, WANot addressed: CA, HI, MN, TN, VT, WA

Legal/Regulatory Issues 1.Whether legislation is needed to establish POLST 2.Nature of consent required (Patient signature? mandatory or optional?) 3.Relationship to Advance Directive law 4.Permissible patient surrogates and scope of their authority. 5.Non-hospital physician authority 6.Which professionals can sign POLST 7.What is mandatory and what is not (e.g., offering a POLST form, complying with POLST?) 8.Provider liability concerns 9.Accessibility and portability of POLST forms 10.Monitoring and evaluation

Quality of the Conversation Virtually all saw this as a training functionVirtually all saw this as a training function Regulatory tools/outcome measures to evaluate this are lackingRegulatory tools/outcome measures to evaluate this are lacking Range of resources cited: e.g., NYS 8-step guide, video vignettes, EPEC, facilitator training, patient/family feedback.Range of resources cited: e.g., NYS 8-step guide, video vignettes, EPEC, facilitator training, patient/family feedback.