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Evolution of State POLST Programs: Legal and Regulatory Issues

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.

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Evolution of State POLST Programs: Legal and Regulatory Issues

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  1. 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

  2. Study Components • 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 state • Analysis of themes and experience in establishing & implementing POLST • Legislative/regulatory review.

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

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

  5. 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. • Guidelines typically developed by NGOs. • ID, NC: EMS Division provides detailed guidelines • TN, UT, VT: procedures in formal regulation.

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

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

  8. Legislative/Regulatory Comparison 6. Surrogate signature permitted? • All yes, but variations as to who, how, and for whom. 7. Applicable to minors • All yes, except VT 8. Other execution requirements? • 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” • ID: form is completed by provider on password protected interactive web page.

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

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

  11. 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” • VT – No presumption 16. Out-of-state POLST recognized? • Yes: ID, NY, OR, UT, & WV (DNR only) • No: NC, • Not addressed: CA, HI, MN, TN, VT, WA

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

  13. Quality of the Conversation • Virtually all saw this as a training function • Regulatory 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.

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