PROMOTE USE OF PHYSICIAN ORDERS FOR LIFE-. SUSTAINING TREATMENT. Kathy L. Cerminara. Seth M. Bogin. This paper can be downloaded without ...
This is a preprint of an article submitted for consideration in the Journal of Legal Medicine, © 2008. The Journal of Legal Medicine is available online at: http://www.informaworld.com/openurl?genre=article&issn=01947648&volume=29&issue=4&spage=479.
Nova Southeastern University Shepard Broad Law Center Nova Southeastern University Legal Studies Paper No. 08-007
A PAPER ABOUT A PIECE OF PAPER: REGULATORY ACTION AS THE MOST EFFECTIVE WAY TO PROMOTE USE OF PHYSICIAN ORDERS FOR LIFESUSTAINING TREATMENT Kathy L. Cerminara Seth M. Bogin This paper can be downloaded without charge from The Social Science Research Network Electronic Paper Collection: http://www.ssrn.com/abstract=1140307 Please do not cite to this paper without notifying the author.
Electronic copy available at: http://ssrn.com/abstract=1140307
This is a preprint of an article submitted for consideration in the Journal of Legal Medicine, © 2008. The Journal of Legal Medicine is available online at: http://www.informaworld.com/openurl?genre=article&issn=01947648&volume=29&issue=4&spage=479.
A PAPER ABOUT A PIECE OF PAPER: REGULATORY ACTION AS THE MOST EFFECTIVE WAY TO PROMOTE USE OF PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT
Authors: Kathy L. Cerminara 1 Nova Southeastern University Shepard Broad Law Center 3305 College Ave. Ft. Lauderdale, FL 33314
Seth M. Bogin 2 Nova Southeastern University Shepard Broad Law Center 3305 College Ave. Ft. Lauderdale, FL 33314
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Kathy L. Cerminara, Professor of Law at the Nova Southeastern University Shepard Broad Law Center, received her J.D. magna cum laude from the University of Pittsburgh and her LL.M. and J.S.D. from Columbia University. With Alan Meisel of the University of Pittsburgh School of Law, she co-authors the treatise The Right to Die: The Law of End-of-Life Decisionmaking, (3d ed. Aspen). 2 Seth M. Bogin is a J.D. Candidate at the Nova Southeastern University Shepard Broad Law Center (2009), and an Articles Editor on the Nova Law Review. Seth holds a B.A. from Purdue University (2003) and an M.S. Ed. from the University of Miami (2005). Seth has worked as a mental health therapist in a children’s psychiatric unit and in a juvenile detention center.
Electronic copy available at: http://ssrn.com/abstract=1140307
A PAPER ABOUT A PIECE OF PAPER: REGULATORY ACTION AS THE MOST EFFECTIVE WAY TO PROMOTE USE OF PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT I. II. III.
IV.
V.
INTRODUCTION…………………………………………….………………………………1 A PORTRAIT OF POLST ………………………………………………………………….4 TRENDS AND AVENUES OF IMPLEMENTATION AMONG THE STATES………………….....6 A. Grass-Roots Movements Toward POLST ……………………..…………….7 B. States With Legislation Explicitly Encouraging or Facilitating The Use of POLST …………………………….……………………………………………..9 1. Legislatively Established Pilot Programs …………………………..10 2. Statutes Setting Forth the POLST Form or Explicitly Approving a POLST Program ………………………………………………………12 C. POLST as Implemented through Regulations Interpreting Broader Grants of Regulatory Power ………………………………………………………….14 FLEXIBILITY AND EXPERTISE VERSUS DIRECT POLITICAL ACCOUNTABILITY: THE ADVANTAGES OF REGULATORY VERSUS STATUTORY IMPLEMENTATION ……………...17 A. Regulatory Implementation Through Administrative Interpretation of Broad Grants of Power Will Yield A Relatively Flexible Product Crafted By Experts ……..............................................................................................18 B. Legislative Implementation May Yield More Legitimacy ………………….20 CONCLUSION: ON BALANCE, POLST REGULATION UNDER A GENERAL GRANT OF POWER W ILL BEST EFFECTUATE THE PURPOSES OF THE POLST PARADIGM ……….22 The only constant is change. Heraclitus 1
It strikes me that the questions brought on by medical technology have come upon us in a relatively short time, and that society is at the beginning of even grasping their dimension and complexity, let alone coming up with satisfactory answers. William H. Colby 2
I.
INTRODUCTION
Change bombards health care professionals. It may come in the form of a new medical procedure to save lives or a new practice to save time. Alternatively, it may come in the form of a new framework for care to assist patients in a subtle way, such as by making it more likely that their wishes will be followed. The current trend toward implementing Physician Orders for Life-Sustaining Treatment (POLST) as a framework for medical care near the end of life is the latter. Unlike many changes that have added to the complexity of end-of-life decisionmaking in recent decades, this new development
2 Electronic copy available at: http://ssrn.com/abstract=1140307
comes to the medical profession and patients not wrapped in technological intricacies but on a hot-pink piece of paper. POLST is a pre-printed physician order form memorializing a patient’s wishes with respect to the administration or withholding of life-prolonging treatment near the end of life. 3 Health care professionals in Oregon developed it in the early 1990s to ensure that providers adhere more often to patients’ medical treatment wishes near the end of life. Although advance directives provide patients with ways to memorialize these wishes on their own, completion of POLST forms is intended to translate advance directives into physician orders in an attempt to increase the number of instances in which healthcare providers understand and follow advance directives. Since its inception, POLST has changed practice in medical institutions 4 in many states throughout the country. 5 Many professionals and professional organizations have suggested that it become standard practice nationwide. 6 While that has not yet occurred, it is striking to compare and contrast the various ways in which medical professionals using POLST have attempted to have it incorporated into good medical practice in their states. In each state in which such incorporation has occurred, the advocates have navigated individual paths. Truly, the implementation and adoption of POLST has been an example of the “laboratory of the states” reflecting various approaches to resolution of the same problem. 7 It would behoove those who wish to promote the implementation of POLST to compare and contrast the various methods through which POLST has become an accepted part of medical practice, in an effort to determine which method they may wish to adopt. In some states, legislatures have passed statutes directly creating POLST
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programs. 8 In other states, administrative agencies, exercising authority to issue regulations affecting health care decision-making generally, have promulgated regulations creating POLST programs. 9 In still other states, professionals simply have begun grass-roots movements to establish the use of POLST as the standard of care in treatment near the end of life. 10 It is difficult to say which way is best, because each state presents its health care professionals with a unique constellation of regulatory and practical challenges. Nevertheless, consideration of the trends among the states and the ways in which various methods of implementation reflect or run counter to the overall “good” of deliberative democracy will assist those advocating the widespread use of POLST in determining which method they may wish to pursue. This Article will suggest that POLST advocates should proceed primarily, but not exclusively, on the administrative front. After sketching a portrait of POLST, it will examine the various methods in which advocates have encouraged and facilitated use of POLST from state to state. Thereafter, it will examine the theoretical bases upon which a POLST proponent might decide in favor of one or another method of attempting to bring POLST into more widespread usage in his or her state. Finally, based on the success rates of adoption in states in which implementation has come about in various ways, and underlying theory that might make some methods of adoption more desirable than others, this Article will propose a solution. Specifically, it will propose that proponents of POLST should work with appropriate administrative agencies in their states to recognize POLST through the regulatory process rather than either encouraging the usage of POLST through grass-roots development of a standard of care or attempting to pass statutes explicitly setting forth POLST programs. 11
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II.
A PORTRAIT OF POLST
The POLST paradigm program has taken on different names in different states, 12 but advocates universally base their desire to incorporate POLST into medical practice on a desire to ensure greater awareness among health care providers of patients’ endof-life wishes. 13 Universally, use of POLST, whatever its state-specific name, involves completion of a standardized form for a set of physician orders relating to end-of-life treatment. Since its inception in the early 1990s, 14 POLST has spread throughout many states and is continuing to grow in acceptance. 15 Its developers envisioned POLST as rectifying problems with advance directives, 16 as well as constituting an additional tool to use in honoring patients’ wishes regarding the type of treatment they wished to authorize or reject at the ends of their lives. 17 In application, a POLST is a hot-pink, 18 two-sided form which expresses a patient’s wishes pertaining to medical intervention in the event he or she becomes incapacitated. 19 The form generally outlines the patient’s wishes in sections bearing labels such as “Cardiopulmonary Resuscitation (CPR),” “Medical Interventions” (applicable in situations in which CPR would not be suitable, specifically when patients have a pulse and are breathing), “Antibiotics,” and “Artificially Administered Nutrition.”20 The POLST form is not for everyone at every stage of life. Those who originated it at the Center for Ethics and Health Care at the Oregon State Health and Science University (OSHU) suggest that it is generally most appropriate for use with patients who are facing serious illnesses, who may die in the next year, or who are in long-termcare facilities. 21 In essence, the professionals at OSHU recommend that those with serious life-threatening conditions use the POLST form, and that it be used to ensure
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that health care professionals attempt life-saving procedures and institute life-prolonging interventions only when doing so will be consistent with patients’ wishes. 22 In contrast to advance directives, POLST forms require physician involvement. An advance directive such as a living will, a health care surrogate designation, a durable power of attorney for health care or a health care proxy designation does not require physician participation. 23 The POLST form, however, only comes into being after a health care professional has conferred with the patient or consulted the patient’s surrogate or advance directive in a collaborative effort to ensure what level of care the patient wishes or would have wished to receive near the end of life. 24 Once a physician completes and signs a POLST form, it becomes a mobile medical order. 25 In an effort to ensure that the POLST form will be visible when medical issues arise, caregivers are to attach the original form to the front of the patient’s chart if the patient is in a facility. 26 Patients at home are advised to post their completed POLST forms on their refrigerators. 27 Forms should accompany patients when they are transferred from home to a facility, and they should also accompany patients if they are transferred from facility to facility. 28 The goal is to make it more likely that health care professionals will adhere to patient wishes, no matter how the patient’s situation changes. Not everyone believes that POLST is an unalloyed good. Its portability is a “plus,” because the fact that it travels with the patient can promote consistency in care among different providers. 29 By promoting communication between patients and caregivers, the POLST program has led to increased compliance with patient wishes in various care settings. 30 It also standardizes the often-confusing process of creating and interpreting advance directives. 31 On the other hand, however, some argue that the
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POLST form could cause medical professionals to forego treatment in situations that were unforeseeable to patients and in which they would have opted for treatment had they been able. 32 As with advance directives, the POLST form could suggest to some caregivers that treatment be limited, or worse, its presence may deter medical personnel from exercising their own professional judgment in certain situations. 33 These concerns also apply to advance directives, 34 however, so it may well be the case that, even with full knowledge of the arguments against the use of POLST forms, some health care professionals would wish to promote their use. Indeed, as Hickman et al. state, the National Quality Forum “and other experts have recommended nationwide implementation of the POLST Paradigm.” 35 III.
TRENDS AND AVENUES OF IMPLEMENTATION AMONG THE STATES
It thus is possible, and experts have urged, that health care professionals across the United States should consider incorporating POLST into their medical practices. Advocates seeking to facilitate their doing so have taken many different paths in encouraging the use of POLST in various states. The originators of POLST at OSHU suggest that interested health care professionals assess the need to do so by examining existing practice in their geographic areas to determine whether end-of-life treatment practice should change. 36 Thereafter, the POLST creators suggest that advocates assemble a core group of persons or institutions to conduct a pilot program 37 designed to marshal evidence of POLST’s efficacy and practicality before seeking to incorporate it into widespread medical practice in that state. 38 Having laid that groundwork, OSHU experts suggest that advocates will be ready to urge widespread use of POLST within their state.
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In urging widespread use of POLST, advocates would do well to consider two broadly defined and divergent legal issues. On one hand, they should be aware of their state’s substantive law on end-of-life decision-making. 39 Substantive differences in the law regarding end-of-life treatment, for example, necessitate use of a different form in New York 40 than in Wisconsin. 41 The substantive law of each state will determine the extent to which the already-existing POLST forms may serve as bases for forms in another states. 42 Equally of importance to substance, however, is the procedural path a POLST advocate may choose to follow toward widespread implementation of POLST in his or her state. Specifically, advocates of POLST must determine first whether they wish to incorporate POLST into standard end-of-life treatment practice in their states through grass-roots efforts or through affirmative legal recognition of POLST forms. Thereafter, if they choose to pursue affirmative legal recognition, they must determine whether they would rather attempt to secure the passage of legislation or the promulgation of regulations. A.
Grass-Roots Movements toward POLST One method of changing a medical practice is simply to spread the word about
the existence of a new, improved practice throughout the medical community. As more and more health care professionals adopt the new practice about which their colleagues are speaking or writing, the new practice will become the “standard of care” for practitioners in that locality. 43 Thus, grass-roots efforts to demonstrate the utility of POLST could result in the spread of its use to such an extent that a health care professional would be acting contrary to the applicable standard of care by failing to use
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it. While some states certainly have few or no coordinated references to POLST within their borders, 44 in some places, this is how POLST has caught on. At least two categories of examples present themselves. On one hand, there are localized efforts, perhaps system-wide within the multiple health care facilities of a single corporate entity. Into this category would fall the efforts of Altru Heal System in North Dakota, which has utilized the POLST program successfully. 45 Another example is in Oregon itself, where the use of POLST initially began at OHSU, 46 with affirmative legal recognition coming only approximately five years after the initial efforts. 47 More broadly, however, someone examining the spread of POLST throughout the country at this juncture can see that advocates in various states are attempting to establish pilot programs and otherwise to jockey for widespread implementation of POLST in their jurisdictions. For example, in 2005 the Oklahoma Attorney General’s Task Force Report on the State of End-of-Life Health Care recommended that the state and interested parties implement a set of “uniform end-of-life physician orders, similar to the POLST form in Oregon.” 48 Subsequently in 2006 the Oklahoma Attorney General’s Office delivered an advisory opinion which again encouraged the implementation of a POLST program. 49 Consequently, POLST interest groups in Oklahoma have a good base on which to build a statewide program in the future.
These are but a sampling. Interest groups in a variety of other states have spearheaded pilot programs. Pilot programs are under way in a few cities and counties in California, New Hampshire, and Colorado. 50 And the Nevada Center for Health Care Ethics and Policy first began discussing implementation of a POLST-like program in that
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state in 2002 and approved a pilot program in 2006. 51 Nevada’s form is called a “Summary of Physician Orders for Scope of Treatment (SPOST)” and is primarily intended for use in health care facilities. 52 In other states such as Maine, Minnesota, and North Dakota, interest groups are starting to gather support for future implementation of POLST programs. 53 In Maine, POLST backers are attempting to create a POLST form by meeting in steering committees. 54 Interest groups in Minnesota have implemented and are testing the POLST forms within the Allina Health System and are meeting with key stakeholders to encourage its implementation in other places. 55 In North Dakota, one hospital has been using the POLST form since September of 2007, and efforts are underway to expand use of the form to other hospitals in the state. 56 Clearly, motivated individuals and interest groups can succeed in spreading the usage of POLST far enough that such implementation becomes widespread. B.
States with Legislation Explicitly Encouraging or Facilitating the Use of POLST Some advocates of POLST, however, are not content with grass-roots
development of such a standard of care through increasing usage throughout their states. Some are in the process of working with their legislatures toward statutes explicitly encouraging or facilitating the use of POLST. In Nebraska, advocates at the Columbus Community Hospital are working with state senators to present a bill in the next session. 57 Likewise, in Ohio, the Honoring Wishes Task Force has led an initiative to have POLST legislation introduced in the next congressional session. 58 In Louisiana, advocates sought an Attorney General opinion on the question of whether they should pursue legislation specifically aimed at POLST implementation or whether they could
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implement POLST under existing law. 59 For various reasons, the Attorney General opined that securing the passage of specific legislation would be preferable to advocating use of POLST under existing law, 60 so advocates there are now planning to pursue such legislation. 61 Not all attempts at legislative advocacy have been successful. Some POLST interest groups have found it difficult and frustrating to implement POLST programs through their legislatures. Advocates in states such as Texas and Florida have seen POLST proposals progress to legislative committees, only to fail to pass in the end. 62 Similarly, groups in Missouri started a POLST pilot program in 1999, focusing mainly on a retirement facility and a few hospitals in the Kansas City area. 63 After completion of the pilot program, the Missouri End-of-Life Coalition in 2006 lobbied to pass state-wide POLST legislation, but failed. 64 In states in which advocates have achieved some legislative success, their successes have tended to fall into one of roughly two types. Some legislatures have established pilot programs that are apparently intended to result in either legislatively or administratively approved forms and practices. Some state legislatures have gone immediately to the latter step by passing statutes specifying the content of a POLST form to be used statewide or explicitly approving a statewide POLST program. 1.
Legislatively Established Pilot Programs
New York has a large POLST-like pilot program, which operates out of Monroe and Onondaga Counties, 65 and which the National POLST Paradigm Initiative Task Force has endorsed. 66 The form under study in New York is the “Medical Orders for Life-Sustaining Treatment (MOLST)” form. 67 This program began in 2001, when the
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Community-Wide End of Life/Palliative Care Initiative began looking into the best way to implement a POLST-like program. 68 In 2004, after developing the MOLST form and gathering support, members of that initiative collaborated with the New York State Department of Health (NYSDOH), 69 which in 2005 reviewed and approved the MOLST form “for use in institutions throughout New York State as the legal equivalent of an inpatient Do Not Resuscitate form.”70 The Legislature officially created a MOLST pilot program in October, 2005, as the finishing touch to the effort which had already proceeded from the grass-roots level to the administrative level. 71 With that legislation passed and the form approved, New York’s pilot program has been effectively running in Monroe and Onondaga Counties. 72 Additionally, individuals living outside those counties may also use the form when it is accompanied by a DNR order. 73 The program has resulted in more than 1,200 MOLST forms being distributed monthly, not including those downloaded from the Internet. 74 The next step remains to be seen, for the legislation creating the pilot program expires June 30, 2008. 75 Some state legislatures do not actually establish pilot programs but find ways to implement statewide efforts to achieve the same goal. In Pennsylvania, while the legislature has not created a true pilot program, it has required the department of health to establish an advisory committee to study POLST. 76 The committee is charged with advising on the possible mandatory use of a standardized POLST form across the state. 77 The advisory committee began meeting in September of 2007 and has completed a first draft of a POLST form. 78
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2.
Statutes Setting Forth the POLST Form or Explicitly Approving a POLST Program Aside from authorizing or even mandating pilot programs, legislatures may
expressly create POLST programs. 79 For instance, in West Virginia, the Health Care Decisions Act (the Act) 80 created a POLST-like form called Physician Orders for Scope of Treatment (POST). 81 It defined the POST form as “a standardized form containing orders by a qualified physician that details a person’s life-sustaining wishes.” 82 The Act describes the physical look of the POST form, states that a “qualified physician” must sign the form and sets forth the minimum requirements for information appearing on the form. 83 As of 2005, the West Virginia POST form was in use in all of the state’s counties, and more than 31,000 forms have been distributed each year. 84 North Carolina’s program is similar to West Virginia’s. North Carolina created a statutory POLST-like system called Medical Orders for Scope of Treatment (MOST) in 2007. 85 The North Carolina statute expressly provides that use of MOST is optional86 and sets forth guidelines outlining when a physician may complete one regarding a patient. 87 The statute describes the minimum amount of information required to appear on the MOST form as follows: [T]he name of the patient; an advisory that a patient is not required to have a MOST; the name, telephone number, and signature of the physician, physician assistant, or nurse practitioner authorizing the order; the name and contact information of the health care professional who prepared the form with the patient or the patient's representative; information on who agreed (i.e., the patient or the patient's representative) to the options selected on the MOST form; a range of options for cardiopulmonary resuscitation, medical interventions, antibiotics, medically administered fluids and nutrition; patient or patient representative's name, contact information, and signature; effective date of the form and review dates; a prominent advisory that directions in a MOST form may suspend, while those MOST directions are in effect, any conflicting directions in a patient's previously executed declaration of an advance directive for a natural death ("living will"), health care power of attorney, or other legally authorized instrument; and an advisory that the MOST may be revoked by the patient or the
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patient's representative. The official MOST form shall also include the following statement written in boldface type directly above the signature line: 'You are not required to sign this form to receive treatment. The form may be approved by reference to a standard form that meets the requirements of this subsection. 88
Another important aspect of the statute—which is common among POLST statutory implementations 89—is that it limits the liability of healthcare workers who follow a patient’s MOST. 90 Maryland has a similar statutory creation called “Instructions on Current LifeSustaining Treatment Options,” 91 addressing issues similar to those the POLST form addresses. 92 Rather than taking on the task of drafting the form itself, Maryland’s legislature assigned the task to the state’s Attorney General’s Office. 93 The statute approving the use of Instructions on Current Life-Sustaining Treatment Options form requires many of the same implementation formalities, such as regular review, as West Virginia’s and North Carolina’s statutory schemes. 94 Finally, another state that has developed a POLST-like form expressly through statute is Idaho. 95 Like West Virginia, Idaho calls its form “Physician Orders for Scope of Treatment (POST).” 96 Unlike West Virginia, however, Idaho’s statute does not specify minimum requirements for the form’s content. 97 Instead, the Idaho statute states that “[t]he department of health and welfare shall develop the POST form.”98 In doing so, that agency used many features of the Oregon POLST form. 99 The Idaho agency also, however, provided that a patient who has a completed POST form may, if he or she wishes, wear an identifying device to alert healthcare workers to the existence of the form. 100 Idaho also expressly states that POST forms are equivalent to Do Not Resuscitate (“DNR”) orders 101 in every health care facility in the state. 102 Its statute also requires that healthcare providers make “reasonable efforts” to determine whether 14
patients have completed POST forms “when presented with [] situation[s] calling for artificial life-sustaining treatment not caused by severe trauma or involving mass casualties and with no indication of homicide or suicide.”103 C.
POLST as Implemented through Regulations Interpreting Broader Grants of
Regulatory Power Despite its leadership role in starting the POLST movement, Oregon does not have an express POLST statute. 104 Instead, the program, which the Center for Ethics in Health Care at OHSO administers, 105 has achieved administrative endorsement of the form after spreading the word about POLST for years. 106 In 1996, the Oregon Board of Medical Examiners (OBME), acting pursuant to its statutorily granted powers to determine the “scope of practice of EMTs [emergency medical technicians] and first responders,” 107 revised its administrative rules to allow first responders to follow POLST orders. 108 Specifically, section 847-035-0030(6) of the OBME Administrative Rules provides that first responders should “respect the patient's wishes including lifesustaining treatments.” 109 Adding that section helped POLST become a more effective tool in Oregon, and medical professionals now honor it statewide. 110 That sort of power, the authority to regulate emergency medical personnel, served as a basis for agency implementation of POLST in the state of Washington as well. Washington’s program, which the National POLST Paradigm Initiative Task Force has endorsed, distributes over one thousand forms a month 111 despite the absence of an express POLST statute. Rather than operating on express statutory authority, the Washington Department of Health (WDOH) has interpreted two state statutes as authorizing its approval of a POLST program. 112 The first statute allows WDOH to
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develop a protocol for how emergency medical personnel should respond when a person in need of medical attention has signed an advance directive expressing a desire that medical treatment be withheld. 113 The second statute protects medical personnel from liability if they adhere to advance directives in the care or omission of care of their patients. 114 Based upon these statutory grants of authority, the WDOH has adopted the POLST form for use in that state. 115 Utah also has developed its POLST program through regulations. Specifically, among other powers, the Utah Code gives the Utah Department of Health (UDH) authority over health care facilities, licensing and inspections. 116 Pursuant to that authority, UDH developed a regulation intended to assure “orderly communication and transfer of physicians orders authorizing individual preferences for life-sustaining treatment when an individual transfers form one licensed healthcare facility to another.” 117 Specifically: A physician may enter an individual's preferences and the physician's orders for life-sustaining treatment on a transferable physician order form. The Department shall, in consultation with the Health Facility Committee, design a uniform transferable physician order for life-sustaining treatment form that may be used by physicians and health care facilities. 118
Additionally, pursuant to its power to regulate emergency medical personnel, the UDH further implements POLST through requiring that emergency medical personnel adhere to the forms’ provisions. 119 Tennessee implemented its POST program through the statutory powers of the Board for Licensing Health Care Facilities (the Board). 120 This statutory power allows the Board to “promulgate and create forms regarding procedures for withholding of resuscitative services from patients,” 121 as well as to develop and issue forms for such a purpose. 122 After the Board’s development of the form, the Tennessee Attorney
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General’s Office issued an opinion ruling that the Board had authority to implement the POST form pursuant to its power generally to develop and oversee the use of DNR forms. 123 Like the Board in Tennessee, agencies in the states of Wisconsin and Hawaii have developed POLST forms through their power to oversee the use of DNR forms or other forms of identifying patients with advance directives authorizing the withholding of life-sustaining treatment. Wisconsin does not have an express POLST statute, but it does have a statute allowing for implementation of advance directives through DNR orders. 124 This statute creates a wristband system to notify health care providers of each patient’s DNR. Emergency Medical Service personnel, emergency rooms, hospitals, and nursing homes in the state implemented POLST as a version, or relative, of the DNR. 125 Similarly, Hawaii’s advance directive statute originally provided for a “bracelet system” for notification of health care providers of the existence of a patient’s advance directive. In 2006, the Hawaii legislature changed the statute to provide for a “written document system” rather than a “bracelet system,” for notification, thus effectively opening the door for a POLST program to operate. 126 While this statute does not provide for a POLST form specifically, it permits a written document such as a POLST form to notify health care providers of patients’ desired levels of care in end-oflife situations. 127 In summary, it is apparent that the absence of an express POLST statute does not necessarily limit the effectiveness of a POLST program. It is possible to develop a POLST program through regulations as long as the regulatory agency involved in creating or approving the program is satisfied that it has the power to do so under
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existing statutes, and that the form itself complies with existing statutes. 128 In cases in which statutes may create procedural barriers to developing POLST programs, such as in Hawaii when the regulatory agency initially had authority to develop a bracelet system of notification but not a form-based notification system, slight changes may facilitate administrative development of POLST even though the statute still does not expressly refer to POLST. Many states have authorized POLST programs through regulatory interpretation of existing statutes. IV.
FLEXIBILITY AND EXPERTISE VERSUS DIRECT POLITICAL ACCOUNTABILITY: THE ADVANTAGES OF REGULATORY VERSUS STATUTORY IMPLEMENTATION
As the foregoing discussion has demonstrated, there are many different paths to implementing POLST programs among the various states. A statewide program may start out as a grass-roots movement, implementing POLST in one location with limited utilization, but then spreading through word of mouth and advocacy efforts to other parts of the state. Eventually, if utilized enough, the statewide program could usher in a new “standard of care,” encouraging practitioners around the state to take part in the program. Such increased use and acceptance may spark the passage of legislation or the promulgation of regulations to legally implement a POLST program throughout the entire state. 129 While such statewide movements are good ways to start to spread the word about this new manner of caring for patients near the end of life, advocates generally should not be satisfied with achieving use of POLST through such informal development of a “standard of care.” Rather, because statewide movements can be sporadic and lack uniformity, and because they may not carry with them the assurances of immunity
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that legislatively or administratively implemented forms would, 130 the most effective way to implement POLST is through either statutory or regulatory intervention. Both of these methods have advantages and disadvantages, and both require organized interest groups to lobby the relevant governmental bodies. A.
Regulatory Implementation Through Administrative Interpretation of Broad
Grants of Power Will Yield A Relatively Flexible Product Crafted By Experts A prominent method of implementing POLST programs on a statewide basis is to have the appropriate state agency promulgate a POLST form or pass other POLSTfriendly regulations pursuant to a broad statutory grant of power. 131 Acting through delegations of power from the legislature, administrative agencies “are a large part of modern American government.”132 The delegations of power pursuant to which administrative agencies act “take lawmaking out of a region of representative government and into a zone of government by specialists presumed to act according to more disinterested and scientific judgments of good social policy.” 133 Arguably, an agency such as a state health and human service department or a state department of health would have greater expertise in devising and applying a medical form for physician orders than a state legislature could . 134 To the extent that this is the case, such an agency may in fact be the entity within the state government appropriately bearing the burden of determining the structure and manner of implementation of a POLST form. One could understand an argument for pursuing its development and implementation through the administrative rather than the legislative sphere. This is especially true since many state legislatures are part-time. 135 Special interest groups may be especially able to influence part-time legislators. 136 Legislators
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meeting infrequently “are likely to have less familiarity with issues and less time to evaluate bills than members of [the Federal] Congress.” 137 They are likely to have neither the time nor the resources to carefully develop and oversee complex regulatory policies. 138 Agency employees, although likely overburdened themselves, 139 are more likely to be able to devote time and attention to the matter of POLST, especially when one also considers the advantage of expertise in the relevant area as a starting point. Moreover, expediency might point toward administrative rather than legislative implementation. Going through the process of drafting, proposing, and passing a statute is tedious and often unsuccessful despite best efforts. 140 Even assuming one succeeds in the first place, it would be easier to change the POLST form or revise particular requirements associated with its usage if one did not have to go to the legislature with a statutory amendment every time new issues arise. 141 Additionally, some interest groups find administrative implementation an attractive option because it means being able to avoid much of a state’s legislative process. If advocates expect a heated political battle to accompany their urging of the use of POLST, 142 then those advocates might prefer to proceed through administrative channels. While administrative promulgation of regulations must comply with the requisites of due process, providing notice and an opportunity to be heard to those potentially affected by the regulations in question, 143 most citizens, it is fair to say, live in relative ignorance of the actions of their administrative agencies. 144 In stark contrast to some proposed laws proceeding through the legislative process, it is possible for agencies to promulgate administrative regulations with little fanfare.
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Use of the regulatory method does not, however, always permit advocates to avoid the legislature. 145 State law may require some amendments to permit a POLST program to operate. 146 Thus, POLST should effectively meet with the legislature’s approval in any event. In Hawaii, for example, the legislature amended the state’s law “to identify ‘comfort care only/do not resuscitate’ patients with a written document allowing the patient to choose a level of care the patient desires.” 147 Presumably, convincing legislators to make such a change will require convincing them that more broad language is required, which would consequently entail convincing them that physician orders such as POLSTs are valuable. B.
Legislative Implementation May Yield More Legitimacy
A contrarian would, at this point, remind POLST advocates that legislative implementation, whether through prescription of a POLST form or simply through express reference to POLST, is the most likely approach to reflect the “will of the people.” 148 The representative form of government provides that it is the legislature that represents the will of the people in creating a state’s—or the country’s, for that matter— laws. 149 To the extent that a POLST form would be imbuing citizens of any state with rights additional to those they had previously, then perhaps the determination to provide those rights is best made within the representative branch of government. Indeed, arguably, laws enacted through the legislative process have a higher degree of legitimacy than rules and regulations enacted through the administrative rulemaking process, if for no other reason than the greater degree of publicity that legislative enactments receive when compared with regulatory pronouncements. 150
21
It is true that, “[b]y consensus, it is a proper thing for [the legislature] to identify social problems and work through the rudiments of a solution, and then to turn the program thus established over to an agency and its professionals for implementation.” 151 Thus, to the extent that broad social policy issues are in play when creating a POLST form or implementing a POLST program, it seems as if the legislature is a more appropriate situs for activity than executive-branch agencies. To the extent, however, that a state legislature has already determined that citizens have rights to refuse life-sustaining treatment under certain situations, and has expressed that determination in statutes approving of advance directives and DNR orders, the legislature has already determined the broad social issues at hand in the implementation of POLST. All that remains is for the administrative agency charged with overseeing the operation of advance directives or DNRs in that state to similarly create and begin overseeing the use of POLST forms. The existence of the POLST form, and the use of the POLST paradigm, serves only to further assist citizens in securing rights already theirs under state statutory law. 152 Another objection to proceeding through the administrative rather than the legislative process may be on more solid footing. Generally speaking, at least partly because of the source of their derivation, courts respect statutes in a way they do not respect administrative regulations. 153 Statutes set forth the law as a direct exercise of the legislature’s power to legislate, whereas administrative agencies are creatures of the legislature; they derive their power from the legislature. 154 In examining an administrative agency’s actions, courts generally will accord the agency deference only after examining whether the agency fulfilled the legislature’s intentions as expressed in
22
clear language. 155 Moreover, due to the derivative nature of the power of an agency, state administrative law sometimes accords legislatures the power not only to retract the power originally given to the agency but also directly to invalidate some agency action. 156 The increased legitimacy, for lack of a better word, accorded to legislation over regulation would benefit the establishment of a POLST program in a few ways. First, if the form appears in a statute, the legislature itself would ensure that the form complies with all applicable state laws, thus limiting potential misunderstandings or ambiguities. Second, in many advocates’ experiences, it has been important to health care professionals that POLST statutes assure them that they will be immune from liability for acting in good faith based upon the orders contained within a POLST form. 157 This should not be surprising; such grants of immunity were important in the development of the law of advance directives, 158 and the high costs of medical malpractice insurance premiums in many states heighten health care professionals’ concerns about potential liability. 159 V.
CONCLUSION: ON BALANCE, POLST REGULATION UNDER A GENERAL GRANT OF POWER W ILL BEST EFFECTUATE THE PURPOSES OF THE POLST PARADIGM In all, then, there is something to be said for the “laboratory of the states.”160 As
POLST has developed from the early 1990s to now, it has gained in popularity and effectiveness; while it is not yet the “standard of care,” it is a viable option. In the beginning health care professionals in only one state on the west coast used it; now it touches both shores and many states between. Each organization that has tried to implement POLST has dealt with the same issues of determining the best way to put it
23
into action and whether to do so informally or through regulation or statute. While both statutes and regulations must be utilized to some degree, implementation primarily through state regulation seems to be the most effective option. The problem with developing a statewide POLST program that does not have the backing of state statute or regulatory body is that such grass-roots efforts can be sparse and unorganized. A solid basis in law or regulation ensures that the forms and programs will stay uniform, but the precise method of achieving that solid basis depends on the regulatory landscape advocates face. In a state in which an agency already has established authority over the development and promulgations of forms related to end-of-life decisionmaking (such as DNR forms), for example, administrative action to develop and promulgate the POLST form is an efficient, flexible tool.
161
In other states, which are
less clear in their statutory grants of authority to agencies, statutory implementation may be best, to eliminate any questions about statutory authority on the agency level. Another consideration may be the political landscape. 162 The most important consideration in developing any form, regulation, or procedure which is intended to carry out the desires of patients is to make sure the systems that govern it are logically and competently constructed. Red tape and miscommunication in life and death situations can cause tragedies. Proper implementation of a person’s end-of-life wishes can avoid or lessen those same tragedies. Yet the same vitalists who protest foregoing life-sustaining treatment by any and all patients 163 may protest the development of a POLST program for the same reasons. 164 In some states, those protests will have more traction at the legislative level than at the regulatory level, while other states will present a contrasting political picture.
24
Statutory law has its place in POLST implementation. The question of immunity from liability for good-faith implementation of the orders written on a POLST form, for example, seems important enough to be addressed by statute. For the POLST program to truly take hold, the medical professionals charged with carrying it out must feel secure in the idea that they are safe from liability as long as they are acting in good faith in complying with a POLST form. Thus, it is important both that medical professionals receive assurances of immunity and that POLST programs do not violate state substantive laws. Legislative action is the most clear way to achieve these goals, although it is possible for a regulatory agency to recognize that immunity already exists within an existing statutory scheme. 165 In fact, it is difficult to imagine that the immunity does not already exist in many states. “Every advance directive statute confers some form of immunity from legal liability on health care professionals who comply with advance directives executed in accordance with the statute.” 166 While the wording of some states’ advance directive statute immunity provisions may be so specific that compliance with an administratively authorized form of POLST would not also confer immunity, 167 many undoubtedly are worded more generally. 168 Advance directives are not self-executing, meaning that no health care professional can comply with an advance directive without a physician implementing the directive by “ordering” himself or herself to take an action or writing an order for another to take an action. That, in fact, is one of the reasons advocates recommend the use of POLST to improve rates of compliance with advance directives. 169 To read a statutory grant of immunity for good-faith compliance with patient wishes with respect to end-of-life care as not including immunity for good-faith
25
compliance with a set of physician orders written to comply with those patient wishes would be unreasonable. It is likely that the immunity is already there, ready to be made explicit through regulatory action. For this reason and others, regulatory implementation of POLST as a method of assuring health care professionals’ compliance with patient wishes at the end of life seems to have an edge over the passage of legislation to achieve this goal. Implementing POLST primarily through regulations gives a regulatory body the ability quickly to revise forms or practices in response to the present needs of the state’s patients and health care professionals. It also means that the program will be revised, if necessary, by persons who are familiar with medical care and other issues arising in the context of POLST usage. Because change is the only constant in the medical profession, and because the medical technology involved in end-of-life care makes end-of-life decisionmaking fertile for changes, judicious regulatory change within the boundaries of state statutory authorization is valuable. Every advance in medicine, including advances in methods of assuring compliance with patient wishes such as POLST, brings with it the excitement of something new and the trepidation of something unknown. While use of POLST, if effective, may indeed become the “standard of care” for end-of-life practice through grass-roots efforts, advocates should pursue more official legal implementation of POLST forms. Through utilizing the proper administrative bodies and implementing the right regulations it is possible for every state to become a pink state if it so desires.
26
1
See G.S. KIRK & J.E. RAVEN, THE PRESOCRATIC PHILOSOPHERS: A CRITICAL HISTORY WITH A SELECTION OF
TEXTS 186–87 (Cambridge University Press 1983) (1957). 2
W ILLIAM H. COLBY, UNPLUGGED: RECLAIMING OUR RIGHT TO DIE IN AMERICA 95 (AMACOM 2006). Colby
was the attorney for the family of Nancy Cruzan, whose end-of-life decisionmaking case was the subject of the first such case in the United States Supreme Court. Cruzan v. Dir., Mo. Dep’t. of Health, 497 U.S. 261 (1990). 3
Susan E. Hickman, et al., The POLST (Physician Orders for Life-Sustaining Treatment) Paradigm to
Improve End-Of-Life Care: Potential State Legal Barriers to Implementation, 36 J.L. MED. & ETHICS 119, 119–20 (2008) [hereinafter Hickman et al.—Potential Barriers]. 4
The POLST form can also be used in the home as well as in long-term-care facilities. See POLST.org,
Information for Patients and Families, Frequently Asked Questions, http://www.ohsu.edu/polst/patients.shtml (last visited May 14, 2008) [hereinafter POLST FAQ}. 5
See generally Hickman et al.—Potential Bariers, supra note 3.
6
See id. at 120; L. C. Hanson & M. Ersek, Meeting Palliative Care Needs in Post-Acute Care Settings,
295:6 JAMA 681, 681–86 (2006); Editorial, Withholding Resuscitation in Prehospital Care, 144:9 ANNALS OF INTERNAL MED. 7
692, 692–93 (May 2, 2006).
See New State Ice Co. v. Liebmann, 265 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of
those happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."). 8
See infra Part III.B.
9
See infra Part III.C.
10
See infra Part III.A.
11
Even with the most thorough regulatory implementation, some statutory intervention, such as a
legislative grant of immunity for medical personnel who act according to patients’ POLST forms when
27
performing or withholding life-sustaining techniques, may be needed. See section V. See e.g. W ASH. REV. CODE § 18.71.210 (2008); N.C. GEN. STAT. § 90-21.17(d) (2007). 12
For example, New York calls its program Medical Orders for Life-Sustaining Treatment (MOLST), see
POLST.org, Program Description for: New York, http://www.ohsu.edu/polst/program%20description/ny%20program%20description.pdf (last visited May 13, 2008); North Carolina calls its program Medical Orders for Scope of Treatment (MOST), see Marsha D. Fretwell & Melanie Phelps, MOST: A New Portable Medical Order for North Carolina, N.C. MED. SOC’Y, http://www.ncmedsoc.org/non_members/public_resources/final_most_manuscript.pdf (last visited May 14, 2008); and Tennessee calls its Physician Orders for Scope of Treatment. See Tennessee Dep’t of Health, Advance Directives, http://health.state.tn.us/Boards/AdvanceDirectives/index.htm (last visited May 14, 2008). 13
POLST.org, Background, http://www.ohsu.edu/polst/background.shtml (last visited May 14, 2008)
hereinafter POLST Background]. 14
Id.
15
Id.
16
In his article, POLST: A Cure for the Common Advance Directive -- It’s Just What the Doctor Ordered,
Keith Sonderling enumerated several problems with advance directives. See Keith Sonderling, POLST: A Cure for the Common Advance Directive—It’s Just What the Doctor Ordered, 15 (2007) (on file with author). Specifically, as Sonderling stated, (1) advance directives lose credibility over time; (2) they are often written before the illness and merely talk about hypothetical problems; (3) they do not take into account advances in medicine; and (4) they are rarely revised or updated. Id. The first issue, that they lose credibility over time, speaks to the fact that as people get older their views and desires change. A decision made at the age of thirty-five might not be the same as one made at sixty-five. Id. Advance directives also usually speak in hypothetical terms rather than specifics, since not much is known of the person’s future health at the time they are written, and this can create confusion at the time of implementation. Id. Additionally, medical advances occur on a daily basis, and medical issues that may have been terminal at the time the advance directive was written may be curable by simple interventions in the future. Id. Many of the issues surrounding the problems with advance directives can also be
28
attributed to the reality that most people, after creating their advance directives, rarely return to them for review or revision. Id. Furthermore, one of the deficiencies in advance directives is that physicians may not receive them in time for meaningful implementation. “[L]ong can be the road from the drafter’s chair to the ICU bed.” Angela Fagerlin & Carl E. Schneider, Enough: The Failure of the Living Will, HASTINGS CENTER REPORT 35, Mar.–Apr. 2004. In fact, one study showed that “62 percent of patients do not give their living will to their physician.” Id. Another study found that only 26 percent of patients who had completed an advance directive before entering the hospital had those directives recorded in their charts. Id. These issues may have led to, or at least compounded, the low rate of people actually completing advance directives, which in the United States is estimated at around 20 to 30 percent of adults. Susan E. Hickman et al., Hope for the Future: Achieving the Original Intent of Advance Directives 35:6 HASTINGS CENTER REPORT S26 (2005) [hereinafter Hickman et al.—Hope]. 17
POLST Background, supra note 13.
18
Hot pink is the predominant color, but it can also be one of several other bright colors, with the idea
being that it will catch the eye of the health care provider in the patient’s medical chart. POLST.org, POLST paradigm forms, http://www.ohsu.edu/polst/sampleforms.shtml (last visited May 14, 2008) [hereinafter POLST Forms]. 19
POLST FAQ, supra note 4.
20
See POLST Forms, supra note 18. Some states’ POLST forms refer to artificially administered
nutrition, while others refer to artificially administered nutrition and fluids. See e.g. POLST.org, POLST Paradigm Forms, Oregon, http://www.ohsu.edu/polst/docs/polst2007sample.pdf (last visited May 14, 2008); POLST.org, POLST Paradigm Forms, New York, http://www.ohsu.edu/polst/docs/molst_form%20(pages1-4).pdf (last visited May 14, 2008). States that mention only nutrition and not fluids in the bolded title of the section on the form have notes addressing the provision of fluid to patients. See e.g. POLST.org, POLST Paradigm Forms, Washington State, http://www.ohsu.edu/polst/docs/wapolstform.pdf (last visited May 14, 2008); POLST.org, POLST Paradigm Forms, Oregon, http://www.ohsu.edu/polst/docs/polst2007sample.pdf (last visited May 14, 2008).
29
21
POLST FAQ, supra note 4.
22
Id.
23
See generally ALAN MEISEL & KATHY L. CERMINARA, THE RIGHT TO DIE: THE LAW OF END-OF-LIFE
DECISION MAKING § 7 (3d ed. 2005 & supp. 2008). “Living wills are documents that give instructions to health care providers about particular kinds of medical care that individuals would or would not want to have to prolong life.” Id. § 7.01(B)(3). A surrogate is “a person who makes decisions on behalf of another when that person acquires his authority to act by operation of law, be it common or a surrogate decision-making statute.” Id. § 7.01(B)(6). “A durable power of attorney is a written instrument by which the principal designates another as his agent and which becomes or remains effective even when the principal becomes incapacitated.” Id. § 7.02(D)(1). Unlike these advance directives, Do Not Resuscitate (“DNRs”)are physician orders, as opposed to patient requests, to withhold or withdraw treatment. Id. § 6.02(B). 24
The POLST form can be filled out by any healthcare professional working with the patient, but must be
signed by the patient’s primary healthcare professional to be official. See POLST FAQ, supra note 4. 25
Hickman et al.—Hope, supra note 16, at S28. This means it can move with the patient between
healthcare facilities. Id. 26
Id.
27
Id.
28
FOCUS: OREGON’S POLST PROGRAM, STATE INITIATIVES IN END-OF-LIFE CARE (Midwest Bioethics Center,
Kansas City, Mo.), April, 1999, at 1, available at http://www.practicalbioethics.org/FileUploads/SI_3.pdf [hereinafter STATE INITIATIVES]. 29
See Hickman et al.—Hope, supra note 16, at S28.
30
See Melinda A. Lee et al., Physician Orders for Life-Sustaining Treatment (POLST): Outcomes in a
PACE Program, 48:10 JAGS 1219 (2000). 31
TAREK Z. MAHDI, CENTER TO ADVANCE PALLIATIVE CARE, COMMUNITY BASED MODEL FOR PHYSICIANS’
ORDERS FOR LIFE SUSTAINING TREATMENT (POLST) IMPLEMENTATION, http://www.capc.org/support-fromcapc/capc-poster-sessions/index_html/capc-orlando-2007/abstracts/01 (last visited May 14, 2008).
30
32
James W. Manne, University of Pittsburgh, Center for Bioethics and Health Law, A Critical Look at the
Physician Orders for Life-Sustaining Treatment (POLST): What are its Weaknesses? 29 (2007), available at http://etd.library.pitt.edu/ETD/available/etd-11262007-200844/unrestricted/Manne-BIOETHICS-ETD12007.pdf (last visited May 14, 2008). 33
Id.
34
Id.
35
Hickman et al.—Potential Barriers, supra note 3, at 120. See NATIONAL QUALITY FORUM, A NATIONAL
FRAMEWORK AND PREFERRED PRACTICES FOR PALLIATIVE AND HOSPICE CARE QUALITY C-19 (preferred practice number 34, recommending that practitioners “[c]onvert the patient treatment goals into medical orders, and ensure that the information is transferable and applicable across care settings, including longterm care, emergency medical services, and hospital care, through a program such as the Physician Orders for Life-Sustaining Treatment (POLST) program”). 36
POLST.org, Approach to Implementation of the POLST Paradigm Program in Your State,
http://www.ohsu.edu/polst/docs/steps%20to%20implementation%20of%20polst.pdf (last visited May 14, 2008). 37
Id.
38
See id.
39
Id. Sometimes that substantive law can pose barriers and may require revision of the form to match
the state’s substantive quirks. See Hickman et al.—Potential Barriers, supra note 3, at 120. 40
POLST.org, POLST paradigm forms, New York,
http://www.ohsu.edu/polst/docs/molst_form%20(pages1-4).pdf (last visited May 14, 2008). 41
POLST.org, POLST paradigm forms, Wisconsin, http://www.ohsu.edu/polst/docs/wisconsin.pdf (last
visited May 14, 2008). 42
Adding another level of complexity, the substantive laws of more than one state may come into play in
a metropolitan area that serves multiple states. See, e.g., E-mail from Don F. Reynolds, MU Center for Health Ethics, to Seth M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 29, 2008) (on file with author) (describing the bi-state consortium that arose to develop a POLST-type form in Kansas City, Missouri).
31
43
Of necessity, because this is not an article about medical malpractice, or even tort, law, this statement
is an imprecise generalization. Generally speaking, health care professionals themselves set the standard of care that determines the extent of a medical professional’s duty to a patient. In a medical malpractice case, the most common method of establishing the standard of care is to examine what other health care professionals would do in the same or similar situation. See Philip G. Peters, Empirical Evidence and Malpractice Litigation, 37 W AKE FOREST L. REV. 757, 758 (2002). That is not the only way, however, to determine a standard of care. See generally Philip G. Peters, The Quiet Demise of Deference to Custom: Malpractice Law at the Millennium, 57 W ASHINGTON & LEE L. REV. 163 (2000). Moreover, even when professionals set the standard of care, it may not only be other health care professionals in the same locality whose practices are considered. See Peters, 37 W AKE FOREST L. REV. at 759. In some jurisdictions, or as to certain issues, medical malpractice law looks to national standards of care. See id. 44
See POLST.org, POLST Paradigm Program by State, http://www.ohsu.edu/polst/otherstates.shtml (last
visited May 14, 2008). Many states such as Arkansas, Kansas, and South Carolina have had POLST show up on the radar only to disappear, or be put on hold. See, e.g., E-mail from Donna Bales, Kansas Life Project, to Seth M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 27, 2008) (on file with author); see also Penelope Chase, Ethics Column: End of Life Educational Collaborative, SOUTH CAROLINA NURSE, Jan.–Mar. 2006, http://findarticles.com/p/articles/mi_qa4103/is_200601/ai_n17177621. Other states such as Illinois, Indiana, and Wyoming have yet to publicly consider the program. POLST.org, POLST Paradigm Program by State, http://www.ohsu.edu/polst/otherstates.shtml (last visited May 14, 2008). If POLST is to take hold in these states it will take action by motivated interest groups, much like the ones mentioned in this section. 45
Altru Web Site, Palliative Care, POLST, http://www.altru.org/body.cfm?id=384 (last visited May 14,
2008). 46
POLST.org, History of POLST Paradigm Development, http://www.ohsu.edu/polst/background.shtml#1
(last visited May 14, 2008) [hereinafter POLST History]. 47
Id. (noting beginning of effort in 1991 and administrative recognition in 1996).
32
48
W.A. DREW EDMONDSON, OFFICE OF THE ATT’Y GEN. OF OKLA., ATTORNEY GENERAL’S TASK FORCE REPORT
ON THE STATE OF:
END-OF-LIFE HEALTH CARE 8 (2005), available at
http://www.oag.state.ok.us/oagweb.nsf/0/99fe23d943c38544862572b400738e6b/$FILE/end-oflife%20report_001.pdf. 49
CHARLIE SABATINO, ABA COMM’N ON LAW AND AGING, OKLAHOMA ATTORNEY GENERAL ISSUES LEGAL
OPINION THE COULD ELIMINATE BARRIERS TO POLST, http://www.ohsu.edu/polst/docs/ok_ag_opinion_summary.pdf?fix (last visited May 14, 2008). 50
CALIFORNIA COALITION FOR COMPASSIONATE CARE, UPDATE, BRINGING POLST TO CALIFORNIA, Dec. 17,
2007, http://www.finalchoices.calhealth.org/C4_textfiles/Newsletter%20(12-17-07).pdf (last visited on May 13, 2008); Foundation for Healthy Communities, Physician Orders Regarding Treatment (PORT), Fact Sheet, http://www.healthynh.com/fhc/initiatives/performance/eol/PORT%20FACT%20SHEET%20CONCORD.pdf (last visited May 13, 2008); STEPHEN TELATNIK, ACTIONABLE ADVANCE DIRECTIVES, SLIDES 25–28, http://www.cmda.us/Articles/PORTABILITY%20OF%20ADVANCE%20DIRECTIVES%20CMDA-telatnikrev11.07.ppt#270,3,What are actionable medical directives? (last visited May 13, 2008). 51
POLST.org, Program Description for: Nevada,
http://www.ohsu.edu/polst/program%20description/nv%20program%20description.pdf (last visited May 13, 2008). 52
Nevada Center for Health and Ethics Policy, NCEHP Summary of Physician Orders for Scope of
Treatment, http://hhs.unr.edu/ncehp/spost_summary.html (last visited on May 13, 2008). Outside of health care facilities the SPOST is not valid without a DNR identification card. Id. As is common in other states, Nevada has attempted to implement SPOST through legislation but has been unsuccessful; SPOST advocates hope the success of the pilot program will spur future legislative success. E-mail from Sally Hardwick, Nevada Center for Ethics and Health Policy, to Keith Sonderling, 2008 Graduate, Nova Southeastern University, Shepard Broad Law Center (Need DATE from Keith) (on file with author). 53
See E-mail from Tammy Rolfe, Director of Quality Improvement and Regulatory Affairs, Maine Health
Care Ass’n, to Seth M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 27, 2008) (on file with author); E-mail from Sandy Schellinger, Director, Allina Palliative Care,
33
to Seth M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb.
27, 2008) (on file with author); E-mail from Nancy Joyner, Clinical Nurse Specialist, Palliative Care, to Seth M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 29, 2008) (on file with author). 54
E-mail from Tammy Rolfe, Director of Quality Improvement and Regulatory Affairs, Maine Health Care
Ass’n, to Seth M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 27, 2008) (on file with author). 55
E-mail from Sandy Schellinger, Director, Allina Palliative Care, to Seth M. Bogin, J.D. Candidate 2009,
Nova Southeastern University, Shepard Broad Law Center (Feb. 27, 2008) (on file with author). 56
E-mail from Nancy Joyner, Clinical Nurse Specialist, Palliative Care, to Seth M. Bogin, J.D. Candidate
2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 29, 2008) (on file with author). 57
E-mail from Lisa Weber-DeVoll, Medical Social Worker, Columbus Community Hospital, Seth M. Bogin,
J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Mar. 4, 2008) (on file with author). 58
E-mail from Dough Cluxton, Vice President , Ohio Hospice & Palliative Care Organization, to Seth M.
Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 28, 2008) (on file with author). Bill created by the Legislative Service Commission. Id. Similarly, interest groups in Montana are attempting to implement the POLST program through petitioning for policy change with the Montana Department of Public Health and Human Services, rather than statutory change. E-mail from Joan Elil, Program Specialist, Montana Department of Justice, to Seth M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 28, 2008) (on file with author). 59
See e.g. Ashley G. Politz, NASW: La. Chapter, NASW-LA Continues its Partnership with LA POLST, 5
(Nov./Dec. 2007–08). See La. Atty. Gen. Op. No. 07-0289, 2007 WL 4370329 (La.A.G.). 60
The Attorney General’s Office stated that new legislation was not needed to implement POLST in
Louisiana but recommended its passage “in order to provide any specifically needed, legally-binding details regarding the use of a POLST.” La. Atty. Gen. Op. No. 07-0289, 2007 WL 4370329 (La.A.G.). The opinion states that, under Louisiana law, POLST must be revocable by the patient, so that he or she
34
is not locked into an earlier decision despite a later change of mind. Id. Additionally, POLST should bear two witness signatures and contact information so that the witnesses may be contacted to attest to the patient’s desires if needed. Id. The issue of physician immunity when implementing the directives on the POLST form gave the Attorney General pause, and became a large part of the reason for the recommendation that advocate groups pursue specific legislation. Id. Under Louisiana law, healthcare providers who act under the color of a patient’s “document or manifest” in withholding treatment are immune from criminal and civil liability. LA. REV. STAT. ANN. § 40:1299.58.8 (2008). The Attorney General opined that it was unclear whether that immunity would extend to healthcare providers acting pursuant to statements in a POLST form. La. Atty. Gen. Op. No. 07-0289, 2007 WL 4370329 (La.A.G.). 61
62
Politz, supra note 59, at 5. S. 28, 2007 Leg., 80(R) Sess. (Tex. 2007) (died in Public Health Committee); Fla. HB 1017 (2006)
(died in Health Care Regulations Committee); Fla. SB 2527 (2006) (died in Committee on Health Care). 63
STATE INITIATIVES, supra note 28, at 4.
64
E-mail from Don Reynolds, MU Center for Health Ethics, to Seth M. Bogin, J.D. Candidate 2009, Nova
Southeastern University, Shepard Broad Law Center (Feb. 29, 2008) (on file with author). Since this legislative disappointment, advocates have seen POLST spread even further through Missouri, although it has yet to acquire state-wide approval. Id. 65
Compassion and Support, Medical Orders for Life-Sustaining Treatment-Professionals, MOLST
Community Pilot, http://www.compassionandsupport.org/index.php/for_professionals/molst/community_pilot (last visited May 13, 2008) [hereinafter MOLST Community Pilot]. 66
Id.
67
Id.
68
Program Description for: New York, supra note 12.
69
Compassion and Support, Medical Orders for Life-Sustaining Treatment-Professionals, Development of
the MOLST Program,
35
http://www.compassionandsupport.org/index.php/for_professionals/molst/development (last visited May 13, 2008). 70
MOLST Community Pilot, supra note 65.
71
Id.; Assemb. 8892, S. 5785, 2005 Leg. Sess. (N.Y. 2005). These bills were later amended to not only
include DNR orders but also Do Not Intubate (DNI) orders in 2006. Assemb. 9479, S. 6365, 2006 Leg. Sess. (N.Y. 2006). 72
MOLST Community Pilot, supra note 65.
73
Id.
74
Program Description for: New York, supra note 12.
75
MOLST Community Pilot, supra note65_. The pilot program expires June 30, 2008. Id.
76
20 PA.CONS. STAT. § 5488 (2007).
77
See id. § 5488(a).
78
E-mail from Marian Kemp, Coalition for Quality at the End of Life, to Seth M. Bogin, J.D. Candidate
2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 28, 2008) (on file with author). Even before legislative intervention grassroots efforts had implemented POLST in parts of Central and Western Pennsylvania. Id. 79
See, e.g., W. VA. CODE §16-30-3(u) (2008) (known as the West Virginia Health Care Decisions Act).
80
W. VA. CODE §16-30-3(u).
81
Id.
82
Id.
83
Id. § 16-30-25(b)(1)–(3).
84
POLST.org, Program Description for: West Virginia,
http://www.ohsu.edu/polst/program%20description/wv%20program%20description.pdf (last visited May 13, 2008). 85
N.C. GEN. STAT. § 90-21.17 (2007).
86
Id. § 90-21.17(a).
87
Id. § 90-21.17(b).
88
Id. § 90-21.17(c).
36
89
See, e.g., W ASH. REV. CODE § 18.71.210 (2008); W. VA. CODE §16-30-10(a) (2008).
90
N.C. GEN. STAT. § 90-21.17 (d). This is important for encouraging compliance with the MOST among
health care workers. See Marie O. Tyminski, The Current State of Advance Directive Law in Ohio: More Protective of Provider Liability than Patients Rights, 19 J.L. & HEALTH 411, 423. It also is one of the reasons that an advocacy group might favor legislation as a pathway to implementation. See infra Part III.B. 91
MD. CODE ANN., HEALTH—GEN. § 5-608.1 (2008).
92
See id.
93
Id. § 5-608.1(a), (e).
94
Id. § 5-608.1(c), (d).
95
See IDAHO CODE ANN. §§ 39-4512A–39-4512C (2008).
96
Id. § 39-4512A.
97
See id.
98
Id. § 39-451A(6).
99
See e.g. OFFICE OF THE SEC. OF STATE OF IDAHO, IDAHO EMS BUREAU, PHYSICIAN ORDERS FOR SCOPE OF
TREATMENT (POST) FORM INSTRUCTIONS, http://www.idsos.state.id.us/online/hcdr/dnr/POST_Instructions.pdf (last visited May 14, 2008). 100
IDAHO CODE ANN. § 39-4512A(5). The “identification device” is “standardized jewelry which can be
worn around the wrist, neck or ankle, and which has been approved by the department of health and welfare.” IDAHO CODE ANN. § 39-4502(13) (2008). 101
Do Not Resuscitate (“DNR”) orders are orders authorizing the withholding of cardiopulmonary
resuscitation (“CPR”). MEISEL & CERMINARA, supra note23, § 6.02[A] at 6-7. State law may authorize the withholding of CPR from patients based on either a patient’s directive, or a physician order, or a combination of both. See id. at §6.02[C][2]. When withholding of CPR is authorized through a physician order, the role the DNR order plays in that withholding is substantially similar to the role a POLST form plays in withholding care pursuant to an expression of the patient’s wishes. 102
Id. § 39-4512B(2).
37
103
Id. § 39-4512C.
104
POLST.org, Program Description for: Oregon,
http://www.ohsu.edu/polst/program%20description/or%20program%20description.pdf (last visited May 14, 2008). 105
Id.
106
See OR. BD. OF MED. EXAM’RS, BME REPORT, POLST: W HAT’S IT ALL ABOUT? 1, 5, W INTER–SPRING,
2007, http://www.oregon.gov/BME/newsletter/WinterSpring07.pdf (noting endorsement by the Oregon Board of Medical Examiners) (last visited May 14, 2008). 107
OR. REV. STAT. § 682.245 (2007).
108
POLST History, supra note 48.
109
OR. ADMIN. R. § 847-035-0030(6) (2008).
110
POLST History, supra note 48 (stating that over one million POLST forms have been distributed since
the start of the program). 111
POLST.org, Program Description for: Washington,
http://www.ohsu.edu/polst/program%20description/wa%20program%20description.pdf (last visited May 14, 2008). 112
W ASH. REV. CODE § 43.70.480 (2008); W ASH. REV. CODE § 18.71.210 (2008).
113
W ASH. REV. CODE § 43.70.480.
114
W ASH. REV. CODE § 18.71.210.
115
See Wash. State Dep’t of Health, Office of Emergency Medical Services and Trauma Systems,
Physician Orders for Life-Sustaining Treatment (POLST), http://www.doh.wa.gov/hsqa/emstrauma/resuscitation.htm (last visited May 14, 2008) [hereinafter WDOH—POLST]. 116
UTAH CODE ANN. § 26-21-XXX (2008). All of the subsections within 26-21 of the Utah Code Annotated
relate to this power of the Utah Department of Health. 117
UTAH ADMIN. CODE R. 432-31-2 (2008).
118
UTAH ADMIN. CODE R. 432-31-4(1) (2008).
119
UTAH ADMIN. CODE R. 426-100-6 (2008).
38
120
Tenn. Op. Atty. Gen. No. 05-093, 2005 WL 1839873 (Tenn. A.G.).
121
TENN. CODE ANN. § 68-11-224(i)(1) (2008).
122
TENN. CODE ANN. § 68-11-1805 (2008).
123
Tenn. Op. Atty. Gen. No. 05-093, 2005 WL 1839873 (Tenn. A.G.).
124
W IS. STAT. § 154.03 (2007).
125
POLST.org, Program Description for: Wisconsin,
http://www.ohsu.edu/polst/program%20description/wi%20program%20description.pdf (last visited May 14, 2008). 126
Governors Office, Governor Signs 178 Bills into Law, HAWAII REPORTER, June 7, 2006,
http://www.hawaiireporter.com/story.aspx?3c86326d-1f6d-4d5e-a419-5eb6018f554a (referring to Act 46(06)) (last visited May 14, 2008) [hereinafter Hawaii Act 46]. 127
HAW. REV. STAT. § 321-23.6 (2008).
128
One way in which an agency may be so satisfied is direct suggestion from the legislature. In Georgia,
the state Senate has passed a resolution urging the Georgia Department of Human Resources to establish a POLST-like program. S. Res. 386, 149 Gen. Assem., Reg. Sess. (Ga. 2007). 129
See e.g. E-mail from Lisa Weber-DeVoll, Medical Social Worker, Columbus Community Hospital, Seth
M. Bogin, J.D. Candidate 2009, Nova Southeastern University, Shepard Broad Law Center (Feb. 28, 2008) (on file with author). 130
See Hickman et al.—Potential Barriers, supra note 3, at 124.
131
See e.g. WDOH—POLST, supra note 115.
132
ALFRED C. AMAN, JR., & W ILLIAM T. MAYTON, ADMINISTRATIVE LAW 7 (2d ed. 2001).
133
Id.
134
See, e.g., Wash. State Dep’t of Health, About the Department of Health,
http://www.doh.wa.gov/about.htm (last visited on May 14, 2008). 135
See Jim Rossi, Overcoming Parochialism: State Administrative Procedure and Institutional Design, 53
ADMIN. L. REV. 551, 555 (2001) (noting state legislatures’ “attenuated sessions, coupled with term limits in many states”). Paul Teske has noted that “only seven state legislatures operate full-time, in six states the legislature convenes only every other year, and in thirty-eight states legislators have no paid staffers
39
(though most have access to some committee staffers).” PAUL TESKE, REGULATION IN THE STATES 203 (Brooking Institute 2004). 136
“Bernie Horn, policy director for the Center for Policy Alternatives, a [liberal] think tank that works on
state issues, [argues:] State legislators are ‘underpaid, understaffed and overwhelmed with work.’ Their lack of resources makes them vulnerable…[t]hey’re susceptible to influence even when they’re well meaning.” John Dunbar & Meleah Rush, The Fourth Branch: Study Finds $570 Million Spent on Lobbying in the States in 2000, CTR. FOR PUB. INTEGRITY, 2002, available at http://www.publicintegrity.org/Content.aspx?src=search&context=article&id=650 . See also TESKE, supra note 135, at 203-05. 137
Rossi, supra note 135, at 555.
138
TESKE, supra note 135, at 203.
139
See, e.g., Irma S. Russell, A Common Tragedy: The Breach of Promises to Benefit the Public
Commons and the Enforceability Problem, 11 TEX. W ESLEYAN L. REV. 557, 578 (2005). 140
See e.g. S. 28, 2007 Leg., 80(R) Sess. (Tex. 2007) (died in Public Health Committee); Fla. HB 1017
(2006) (died in Health Care Regulations Committee); Fla. SB 2527 (2006) (died in Committee on Health Care). 141
While it is easier to change an administrative regulation there is still a legal process involved in doing
so. In Texas, for example, to revise an administrative regulation an agency has to give timely notice to the individual state’s Secretary of State’s office, at which time the proposed rule change will undergo inspection to ensure it comports with the state’s laws. See e.g. 22 TEX. ADMIN. CODE § 107.60 (2008); see also MO. REV. STAT. § 536.021 (2008) (providing for a similar process). 142
At least one POLST advocate has stated that the group with which she is associated “investigated the
legislative route, but it became more contentious than we expected.” That group determined it would be best to proceed with a grass-roots method of implementation until “communities become comfortable with the form and its implementation,” at which time it would again approach the legislature. E-mail from Sally Hardwick, Nevada Center for Ethics and Health Policy, to Keith Sonderling, 2008 Graduate, Nova Southeastern University, Shepard Broad Law Center (Need DATE from Keith) (on file with author). 143
See, e.g., Model State Administrative Procedure Act §§ 3-101 – 3-117.
40
144
Cf. Cary Coglianese, Citizen Participation in Rulemaking: Past, Present, and Future, 55 Duke L.J.
943, 951 (2006) (noting traditional “paucity of participation by ordinary citizens in agency rulemakings”). 145
See Terri A. Schmidt et al., Honoring Treatment Preferences Near the End of Life: The Oregon
Physician Orders for Life-Sustaining Treatment (POLST) Program, 550 Advances in Experimental Med. and Biology 235, 261 (2004). 146
See id.
147
Hawaii Act 46, supra note 126.
148
Gravel v. United States, 408 U.S. 606, 653 (1972) (Brennan, J., dissenting). Cf. Edward Rubin, The
Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2073 (2005) (describing one “leading use” of the term “accountability” in “contemporary scholarship”: “the idea that elected officials – legislators and the chief executive – are accountable to the people, while officials who obtained their position by appointment or examination are not”). 149
See, e.g., Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J.,
concurring). See also Boreali v. Axelrod, 517 N.E.2d 1350, 1356 (1987) (“Manifestly, it is the province of the peoples’ elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends.”). 150
Cf. Cary Coglianese, Citizen Participation in Rulemaking: Past, Present, and Future, 55 Duke L.J.
943, 951 (2006) (noting traditional “paucity of participation by ordinary citizens in agency rulemakings”). 151
Aman & Mayton, supra note 132, at 11 (describing the federal Congress and federal considerations,
which seem equally applicable at the state level). 152
This is true not just of rights assured under state statutory law. While all states have some form of
statutes governing at least some portion of end-of-life decision-making, MEISEL & CERMINARA, supra note 23, § 7.01(A), many states’ statutory schemes also provide that citizens’ rights under common law and state and federal constitutions remain in place and are not derogated by the existence of the statutory provisions. Id. § 5.04(A). 153
BERNARD SCHWARTZ, ADMINISTRATIVE Law § 1.6, at 10 (3d ed. 1991).
154
Id.
41
155
“Broadly speaking, courts review final agency action . . . for errors of law and for reasonableness in
finding facts or exercising discretion.” MICHAEL ASIMOW, ARTHUR EARL BONFIELD & RONALD M. LEVIN, STATE AND FEDERAL ADMNISTRATIVE Law 9 (2d ed. 1998). See also Model State Administrative Procedure Act § 5-116 (describing scope of review of agency action); see generally William Funk, Rationality Review of State Administrative Rulemaking, 43 ADMIN. L. REV. 147 (discussing judicial failure to review state agency rulemaking for rationality). 156
Paul Teske offers Alaska as an example of a state in which the administrative procedure act (APA)
grants the state legislature the authority to veto administrative regulations directly. TESKE, supra note 135, at 202–06; see ALASKA STAT. § 44.62.320 (2008); see also ALASKA STAT. § 24.20.445 (2008). In Ohio, the state APA provides that both legislative houses’ concurrences in a resolution can invalidate a proposed rule. TESKE, supra note 135, at 206; see OHIO REV. CODE ANN. §§ 111.15(D), 119.03(H), 111.15(B)(1)(b), 119.04(A)(1)(b) (2008). Ohio has legislative review procedures both relating to proposed rules and relating to adopted rules. Compare OHIO REV. CODE ANN. § 119.03(I) (2008) with OHIO REV. CODE ANN. § 119.031 (2008). Additionally, POLST programs implemented through the state agency rulemaking process may encounter executive oversight in the states that have granted their governors some forms of agency’s regulatory review power. TESKE, supra note 135, at 210. Teske provides some examples from different states, including: (a) the governor’s power to disapprove a rule without cause and rescind an adopted rule by an executive order (Indiana), id., and (b) the governor’s use of an executive order to suspend or veto any rules or regulations (Louisiana). Id. 157
See e.g. W ASH. REV. CODE § 18.71.210 (2008); N.C. GEN. STAT. § 90-21.17(d) (2007). See also
MEISEL & CERMINARA, supra note 23, § 7.01(A); Hickman et al.,—Potential Barriers, supra note 3, at 124; Kathie Durbin, Bill Would Bolster End of Life Wishes, SEATTLE TIMES, Feb. 10, 2008, at B4. 158
MEISEL & CERMINARA, supra note 23, § 7.01(A).
159
See Joanna M Shephard, Tort Reforms’ Winners and Losers: The Competing Effects of Care and
Activity Levels, 55 UCLA L. REV. 905, 921 (2008); Gordon & Assefa, A Tale of Two Initiatives: Where Propaganda Meets Fact in the Debate Over America’s Health Care, 4 SEATTLE J. FOR SOC. JUST. 693, 713 (2006).
42
160
See Liebmann, 265 U.S. at 311.
161
See, e.g., Program Description for: Oregon, supra note 104.
162
See Thomas Goldsmith, More Choices Available When End of Life is Near, NEWS & OBSERVER, Oct. 1,
2007, at A1 (stating that “[o]pponents of POLST, [such as] right-to-life groups and the Roman Catholic Diocese of Raleigh, say [POLST] leans too heavily toward withdrawing life support.”) 163
See Kathy L. Cerminara, Critical Essay: Musings on the Need to Convince Some People With
Disabilities That End-of-Life Decision-Making Advocates Are Not Out to Get Them, 37 LOYOLA CHICAGO L.J. 343, 370-73 (2006) (describing the activity of vitalists in organizations in conjunction with disability rights activists during the debates about withholding treatment from Theresa Marie Schiavo in Florida). 164
See, e.g., supra note 162.
.
165
See, e.g., supra text accompanying notes 113-115 (describing the Washington Department of Health’s
use of a state statue assuring immunity to medical personnel who follow advance directives as part of its authority to approve a POLST program). 166
MEISEL & CERMINARA, supra note 23, § 7.10[E] at 7-150.
167
See, e.g., La. Att’y Gen. Op. No. 07-0289, 2007 WL 4370329 (La.A.G.).
168
See., e.g., Fla. Stat. Ann. § 765.109(a) (providing for immunity from criminal prosecution, civil liability
and administrative sanction “as a result of carrying out a health care decision made in accordance with the provisions of this chapter [on advance directives].” 169
See supra note 16 and text accompanying notes 23-28.
43
