AN ACT TO AMEND TITLE 16 AND TITLE 21 OF THE DELAWARE CODE RELATING TO DELAWARE MEDICAL ORDERS FOR SCOPE OF TREATMENT.

Legislation Document

SPONSOR:

Sen. Pinkney & Rep. Kamela Smith

Reps. Lambert, Morrison

DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE BILL NO. 274

AN ACT TO AMEND TITLE 16 AND TITLE 21 OF THE DELAWARE CODE RELATING TO DELAWARE MEDICAL ORDERS FOR SCOPE OF TREATMENT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 25A, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:

Chapter 25A. DELAWARE

MEDICAL

PORTABLE

ORDERS FOR

SCOPE OF

LIFE-SUSTAINING

TREATMENT ACT

§ 2501A. Short title.

This chapter shall be known and may be cited as the

“Delaware Medical Orders for Scope of Treatment Act” (“DMOST Act”).

“Delaware Portable Orders for Life-Sustaining Treatment Act” or “Delaware POLST Act”.

§ 2502A. Statement of purpose.

(b) An adult individual with decision-making capacity has the right to plan ahead for health-care decisions through an advance health-care directive

pursuant to

under

Chapter 25 of this title, or through a

DMOST

POLST

form

pursuant to

under

this chapter or both, and to have the wishes expressed in those documents respected, subject to certain limitations, in order to ensure that the right to control decisions about one’s own health care is not lost if a patient loses decision-making capacity and is not able to participate actively in making the patient’s own decisions, either temporarily or permanently.

(d) The

DMOST

POLST

form is separate from and is not an advance health-care directive. It expresses an individual’s wishes regarding scope of treatment through medical orders. The

DMOST

POLST

form does not require an advance health-care directive.

(e) Data

reveal

shows

that many individuals may reside or be situated in multiple locations such as home, acute care, and post-acute care settings near the end of life. Changes in such settings require that an easily understood, standardized, portable document be available to communicate the individual’s care preferences. A

DMOST

POLST

form provides such a document.

§ 2503A. Definitions.

For purposes of this chapter:

(3)

“Delaware Medical Orders for Scope of Treatment” or “DMOST”

“Delaware Portable Orders for Life-Sustaining Treatment” or “POLST”

means a clinical process to facilitate communication between health-care professionals and patients living with serious illness or frailty whose health-care practitioner would not be surprised if they died within the next year or, if the patient lacks decision-making capacity, the patient’s authorized representative. The process encourages shared, informed medical decision-making. The result is a

DMOST

POLST

form, which contains portable medical orders that respect the patient’s goals for care in regard to the use of CPR and other medical interventions. The

DMOST

POLST

form is applicable across health-care settings, is reviewable, and is revocable.

(5) “DMOST form” means a standardized document created or approved by the Department that is uniquely identifiable and has a uniform format or color, which:

a. Is used on a voluntary basis by patients living with serious illness or frailty whose health-care practitioner would not be surprised if they died within the next year;

b. Is not an advance health-care directive;

c. Is not valid unless it meets the requirements for a completed DMOST form as set forth in this chapter;

d. Is intended to provide direction to emergency care personnel regarding the use of emergency care and to health-care providers regarding the use of life-sustaining treatment by indicating the patient’s preference concerning the scope of treatment, the use of specified interventions, and the intensity of treatment for each intervention;

e. Is intended to accompany the patient, and to be honored by all personnel attending the patient, across the full range of possible health-care settings, including but not limited to the patient’s home, a health-care institution, at the scene of a medical emergency, or during transport;

f. May be reviewed or voided at any time by a patient with decision-making capacity or, if the patient lacks decision-making capacity, the patient’s representative in accordance with the provisions of § 2511A of this title; and

g. Must be signed by a health-care practitioner.

(8)

(7)

“Health-care practitioner” means a physician or an individual licensed and authorized to write medical orders under Title 24 who is providing care for the patient or overseeing the health care provided to a patient and has completed all training required by the Department for individuals participating in the completion of a

DMOST

POLST

form. Over time, a patient’s health-care practitioner may change.

(12)

(11)

“Patient’s authorized representative” or “authorized representative” means the individual signing a

DMOST

POLST

form on behalf of a patient without decision-making capacity, who has the highest priority to act for the patient under law, and who has the authority to make decisions with respect to the patient’s health-care preferences being made on the

DMOST

POLST

form such individual is executing on behalf of the patient. The health-care practitioner shall determine the individual who is the patient’s authorized representative by referencing the documentation giving such individual the required authority under law. The regulations implementing this chapter shall explain the priority set by law regarding who can act as an authorized representative. Based on the documentation provided by such individual as evidence of that individual’s authority, the patient’s authorized representative could be an agent designated by a patient under an advance health-care directive, a guardian of the person appointed pursuant to Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court, a default surrogate under Chapter 25 of this title, or an individual who is otherwise authorized under applicable law to make the health-care decisions being made by execution of the

DMOST

POLST

form on the patient’s behalf, if the patient lacks decision-making capacity.

(13) “POLST form” means a standardized document created or approved by the Department that is uniquely identifiable, has a uniform format or color, and is all of the following:

a. Used on a voluntary basis by patients living with serious illness or frailty whose health-care practitioner would not be surprised if they died within the next year.

b. Not an advance health-care directive.

c. Not valid unless it meets the requirements for a POLST form under this chapter.

d. A medical order that provides directions to emergency care personnel regarding the use of emergency care and to health-care providers regarding the use of life-sustaining treatment by indicating the patient’s preference concerning the scope of treatment, the use of specified interventions, and the intensity of treatment for each intervention.

e. Intended to accompany the patient, and to be honored by all personnel attending the patient, across the full range of possible health-care settings, including the patient’s home, a health-care institution, at the scene of a medical emergency, or during transport.

f. Reviewable or voidable at any time by a patient with decision-making capacity or, if the patient lacks decision-making capacity, the patient’s representative.

g. Signed by a health-care practitioner.

§ 2504A. Duty of patient’s authorized representative.

(a) At such time as a patient lacks decision-making capacity, the patient’s authorized representative shall make a health-care decision to treat, withdraw, or withhold treatment in accordance with the patient’s individual instructions as expressed in an advance health-care directive or

DMOST

POLST

form, if any, and other wishes to the extent known, or, if a guardian appointed

pursuant to

under

Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court. The patient’s authorized representative shall have the power to make any health-care decision authorized under this chapter unless limited by the order of a court of competent jurisdiction or limited in the document provided by the authorized representative as evidence of that authorized representative’s authority.

§ 2505A. Powers and duties of Department of Health and Social Services.

(a) The Secretary is authorized to promulgate regulations and develop protocols to fulfill the following responsibilities:

(1) Promulgation of a

DMOST

POLST

form and development of the process for completion, modification, and revocation of the

DMOST

POLST

form including training requirements.

(2) Promotion of awareness through outreach and education, including a website, to health-care practitioners, health-care providers, emergency-care providers, and the general public about the option to complete a

DMOST

POLST

form.

(3) Training of emergency-care providers about the use and application of a

DMOST

POLST

form.

(4) Development of additional requirements for the completion of a

DMOST

POLST

form that may be applicable in the case of a patient with mental illness or a developmental disability in consultation with organizations that represent individuals with mental illness or development disabilities, respectively.

(5) Ongoing evaluation of the design and use of

DMOST

POLST

forms.

(6) Collect data on the use of

DMOST

POLST

forms, including impact on different groups of stakeholders.

(c) The Department shall maintain a

DMOST

POLST

program to effectively implement this chapter. In addition to the responsibilities under subsection (a) of this section, the

DMOST

POLST

program must do all of the following:

(2) Staff and work with the

DMOST

Delaware POLST

Steering Committee

under § 2521A of this title

to evaluate and improve the use of

DMOST

POLST

forms.

§ 2507A. Delaware Health Information Network.

The Delaware Health Information Network (DHIN) shall maintain an electronic registry to maintain and store executed

DMOST

POLST

forms and make them available to emergency-care providers, health-care providers, and health-care institutions.

§ 2508A. Obligation to treat.

A health-care practitioner, health-care provider, health-care institution, or emergency-care provider shall treat a patient who has a

completed DMOST

POLST

form in accordance with the directions and options indicated in such

DMOST

POLST

form, except as otherwise provided

in

under

this chapter.

§ 2509A. Mandatory elements of

DMOST

POLST

forms.

A

DMOST

POLST

form shall be deemed to be

completed and therefore

valid for the purposes of this chapter if

it:

it complies with all of the following:

(1) Contains information indicating

a

the

patient’s health-care

preferences;

preferences and directions.

(2) Has been voluntarily

signed

signed, after discussion with a health-care practitioner,

by

a

the

patient or by another individual subscribing the patient’s name in the patient’s presence and at the patient’s express direction, or, if the patient does not have decision-making capacity, by the patient’s authorized

representative;

representative.

(3) Contains a statement that the

DMOST

POLST

form is being signed

after discussion with

by

the patient, or the patient’s authorized

representative;

representative, after discussion with a health-care provider.

(4) Includes the signature of the patient’s health-care practitioner and the date of the health-care practitioner’s

signature;

signature.

(5) If the

DMOST

POLST

form is not signed by the heath-care practitioner in the presence of the patient, the

DMOST

POLST

form will be signed by the individual in whose presence the patient or the patient’s authorized representative signed the

DMOST form;

POLST form.

(6) The

DMOST

POLST

form shall include a statement that the patient or, if the patient does not have decision-making capacity, the patient’s authorized representative, has been provided with a plain language statement explaining the

DMOST

POLST

form and the consequences of executing the

DMOST form, including whether or not the DMOST

POLST

form may be changed if the patient lacks decision-making capacity; and

POLST form.

§ 2510A. Recognition of medical orders from other states.

A document executed in another

state, which meets the

state is valid for the purposes of this chapter to the same extent as a POLST form that is valid under this chapter, if the document meets any of the following:

(1) The

requirements

of

under

this chapter for a

DMOST form or the

POLST form.

(2) The

requirements of the state where

such

the

document was

executed or

executed.

(3) The requirements of

the state where the patient was a resident at the time the document was

executed, shall be deemed to be valid for the purposes of this chapter to the same extent as a DMOST form valid under this chapter.

executed.

§ 2511A. Modification or revocation of

DMOST

POLST

forms.

(a) A patient with decision-making capacity, may, at any time, void that patient’s own

completed DMOST

POLST

form or otherwise request alternative treatment to the treatment that was ordered on the

DMOST

POLST

form.

(b) If the orders in a patient’s

completed DMOST

POLST

form regarding the use of any intervention specified therein conflict with the patient’s more recent oral or written directive to the patient’s health-care practitioner, the health-care practitioner shall honor the more recent directive from the patient

in accordance with the provisions of

under

subsection (d) of this section.

(c) The patient’s authorized representative may, at any time after the patient loses decision-making capacity and after consultation with the patient’s health-care practitioner, request

that

the health-care practitioner

do any of the following, as the patient’s authorized representative deems necessary to reflect the patient’s health status or goals of care:

to modify or void

the completed DMOST form, or otherwise request

(1) Modify the POLST form.

(2) Void the POLST form.

(3) Request

alternative treatment to the treatment that was ordered on the

DMOST form,

as the patient’s authorized representative deems necessary to reflect the patient’s health status or goals of

care, unless the patient expressly limits the authorized representative’s authority to modify or void the completed DMOST form. The DMOST form shall provide the patient with the option to authorize or not to authorize the patient’s authorized representative to void or modify the patient’s completed DMOST form if the patient who has a completed DMOST form loses decision-making capacity. If the patient indicates on the DMOST form that the authorized representative is not authorized to void or modify the patient’s completed DMOST form, the patient’s authorized representative may not do so.

POLST form.

(d) A

DMOST

POLST

form may only be modified in consultation with the patient’s health-care practitioner in accordance with the provisions of the applicable regulations.

§ 2512A. Resolution of conflicts.

(a) In the event of a disagreement between the patient’s authorized representative and the patient’s health-care practitioner concerning the patient’s decision-making capacity or the appropriate interpretation and application of the terms of a

completed DMOST

POLST

form regarding the patient’s course of treatment, the

parties:

parties may do either of the following:

(1)

May seek

Seek

to resolve the disagreement by means of procedures and practices established by the health-care institution,

including, but not limited to,

including

consultation with an institutional ethics committee, or with an individual designated by the health-care institution for this

purpose; or

purpose.

(2)

May seek

Seek

resolution by a court of competent jurisdiction.

(b) A health-care provider involved in the patient’s care or an administrator of a health-care institution may seek to resolve a disagreement concerning the appropriate interpretation and application of the terms of a

completed DMOST

POLST

form to the patient’s course of treatment in the same manner as

set forth in

under

subsection (a) of this section.

§ 2513A. Conflicting directives.

(a) The patient’s scope of treatment

shall be

is

governed by the latest directive available.

(b) If the treatment directives of a later advance health-care directive conflict with the patient’s directives on a

DMOST

POLST

form, a health-care practitioner shall be informed so that the

DMOST

POLST

form can be modified or voided in order to reflect that patient’s later directive.

(c) If there is a conflict between the patient’s expressed oral or written directives, the

DMOST

POLST

form, or the decisions of the patient’s authorized representative, the patient’s last expressed oral or written directives

shall

must

be followed and, if necessary, a new

DMOST

POLST

form

shall

must

be prepared and executed.

§ 2514A. Safeguards.

Any individual or entity may petition the Court of Chancery for appointment of a guardian of the person of a patient if that individual or entity has good reason to believe that the withdrawal or withholding of health care in a particular

case:

case is any of the following:

(1)

Is contrary

Contrary

to the most recent expressed

wishes of a patient;

directions of the patient.

(2)

Is predicated

Predicated

on an incorrect assessment of the patient’s decision-making

capacity;

capacity.

(3)

Is being proposed pursuant to a DMOST

Proposed under a POLST

form that has been falsified, forged, or

coerced;

coerced.

(4)

Is being

Being

considered without knowledge

of a revocation of a completed DMOST

that the POLST

form

which

has been

revoked because that revocation has been

unlawfully concealed, destroyed, altered, or

cancelled; or

cancelled.

§ 2515A. Immunity.

A health-care institution, health-care practitioner, or health-care provider acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care institution, health-care practitioner, or health-care provider is not subject to civil or criminal liability or to discipline for unprofessional conduct

for:

for any of the following:

(1) Complying with a

DMOST

POLST

form signed by a health-care practitioner apparently having authority to make a

DMOST

POLST

for a patient, including a decision to withhold or withdraw health

care;

care.

(2) Declining to comply with a

DMOST

POLST

form based on a belief that the health-care practitioner

then

lacked authority to sign

a DMOST;

the POLST form.

(3) Complying with a

DMOST

POLST

form and assuming that the

DMOST

POLST

form was valid when made and has not been modified or

voided;

voided.

(4) Providing life-sustaining treatment in an emergency situation when the existence of a

DMOST

POLST

form is

unknown; or

unknown.

(5) Declining to comply with a

DMOST

POLST

form because the

DMOST

POLST

form is contrary to the conscience or good faith medical judgment of the health-care practitioner or the written policies of the health-care institution.

§ 2516A. Assumptions and presumptions.

(a) Neither the execution of a

DMOST

POLST

form under this chapter nor the fact that health care is withheld or withdrawn from a patient in accordance therewith shall, for any purpose, constitute a suicide.

(b) The completion of a

DMOST

POLST

form

pursuant to

under

this chapter shall not be deemed or presumed to modify the terms of an existing insurance policy. No policy of insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of health care from an insured patient, notwithstanding any term of the policy to the contrary.

(c) No health-care institution, health-care provider, health-care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, nonprofit hospital service plan, or any other type of direct or indirect provider of health-care benefits or services, shall require any individual to execute a

DMOST

POLST

form as a condition to being insured, to receiving care, or to being admitted to a health-care institution in order to receiving health-care services.

§ 2517A. Penalties.

(d) An individual who intentionally or knowingly commits any of the following acts is guilty of a class G felony:

(1) Concealing, canceling, defacing, obliterating, or withholding personal knowledge of a

completed DMOST

POLST

form or a modification or revocation thereof, without the patient’s consent, or if the patient lacks decision-making capacity, without the consent of the patient’s authorized

representative;

representative.

(2) Falsifying or forging a

completed DMOST

POLST

form or a modification or revocation

thereof; or

of a POLST form.

(3) Coercing or fraudulently inducing the completion of a

DMOST

POLST

form or a modification or revocation

thereof

of a POLST form

by a patient or, if a patient lacks decision-making capacity, by a patient’s authorized representative.

(e) Any organization that is a health-care provider, health-care institution, or “person” as defined in § 102(11) of Title 18 who intentionally or knowingly requires or prohibits the completion of a

DMOST

POLST

form or a modification or revocation thereof as a condition of coverage under any policy of health or life insurance, or an annuity, or a public benefits program, or as a condition of the provision of health care is guilty of a class A misdemeanor for each and every act or violation, and may be subject to suspension or revocation of such person’s authority to do business in Delaware.

§ 2518A. Capacity.

(a) An adult individual is presumed to have capacity to make a health-care decision and to execute,

modify

modify,

or void a

DMOST

POLST

form.

(b)

A determination that a

(1) The presumption under subsection (a) of this section may be rebutted by a health-care practitioner who makes a finding that the

patient lacks decision-making capacity

must be made by a physician, and if a

based on a contemporaneous examination and in accordance with accepted standards of the profession and the scope of practice of the health-care practitioner making the finding.

(2) A health-care practitioner must document a finding under paragraph (b)(1) of this section in the patient’s medical record.

(c) A

patient’s authorized representative

is executing the DMOST form such determination by a physician shall be required.

may not execute a POLST form for a patient unless the documentation required under paragraph (b)(2) of this section is in the patient’s medical record.

§ 2520A. Effect of copy.

A copy of a

DMOST

POLST

form or revocation of a

DMOST

POLST

form has the same effect as the original.

§ 2521A.

DMOST

Delaware POLST

Steering Committee.

(a) The

DMOST

Delaware POLST

Steering Committee (Committee) is established to support the implementation of the

DMOST

POLST

program and make recommendations regarding the implementation of this chapter.

(d) The Committee shall produce an annual report, published on the

DMOST Program

POLST program

website, that includes all of the following:

(1) Data regarding all of the following:

a. The number of

DMOST

POLST

forms in the electronic registry.

b. How often the electronic registry is consulted by health-care providers.

c. Use of

DMOST

POLST

forms by emergency-care providers.

(2) Information about trainings provided to health-care practitioners, health-care providers, and emergency-care providers.

(3) Public education and outreach efforts.

(4) Current challenges and recommendations to improve the

DMOST Program

POLST program

and the use of

DMOST

POLST

forms.

§ 2522A. Savings and transitional provisions.

(a) For purposes of this section, “Delaware Medical Orders for Scope of Treatment” or “DMOST form” means a DMOST form

created under this chapter before the names changed to “Delaware Portable Orders for Life-Sustaining Treatment” and “POLST form” on [the effective date of this Act].

(b) A DMOST form is valid if it complies with this chapter or complied at the time of creation with the law of the state in which it was created.

(c) This chapter does not affect the validity or effect of an act done before [the effective date of this Act].

(d) This chapter applies to a DMOST form executed before, on, or after [the effective date of this Act].

Section 2. Amend § 1122, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1122. Devolution of rights.

Where consistent with the nature of each right in § 1121 of this title, particularly as they pertain to a resident adjudicated incompetent in accordance with Delaware law, if the resident is determined to need a representative under federal law, or the presumption of the resident’s capacity is rebutted under § 2504 of this title, all rights devolve to the resident’s authorized representative, as established under any of the following:

(5) An individual who is otherwise authorized under applicable law to make the health-care decisions being made by execution of the

DMOST

POLST

form on the patient’s behalf under Chapter 25A of this title.

Section 3. Amend § 3005J, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 3005J. Limitations.

Nothing in this chapter shall be construed to do any of the following:

(2) Interfere with a valid

Delaware Medical Orders for Scope of Treatment (DMOST)

POLST form

under Chapter 25A of this title.

Section 4. Amend § 2718, Title 21 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 2718. Information on licenses [For application of this section, see 85 Del. Laws, c. 40, § 15].

(c) The Division of Motor Vehicles shall provide a method for permitting a person applying for a license or identification card, or for renewal thereof, to have designated thereon that such person has a medical condition which may require special attention.

(5) For the purposes of this subsection “medical condition” includes the execution of

a pre-hospital

an

advance

care

health-care

directive under Chapter 25 of Title 16 or

Delaware Medical Orders for Scope of Treatment

POLST form

under Chapter 25A of Title 16, and those orders from other states, which

have become

are

effective under

Chapter 25 or

Chapter 25A of Title 16.

Section 5. This Act is effective immediately and is to be implemented the earlier of the following:

(1) Notice by the Secretary of the Department of Health and Social Services published in the Register of Regulations that final regulations to implement this Act have been promulgated.

(2) Six months from the date of the Act’s enactment.

SYNOPSIS

Enacted in 2015, Chapter 25A of Title 16, the Delaware Medical Orders for Scope of Treatment Act created a voluntary process and a document that can used by patients with serious illness or frailty to provide direction to emergency care personnel regarding the patient's preferences in regard to scope of care and treatment.

This Act changes the name "Delaware Medical Orders for Scope of Treatment (DMOST)" under Chapter 25A of Title 16 to "Delaware Portable Orders for Life-Sustaining Treatment (POLST)" to align with the national effort to create a uniform form. This Act contains a savings provision so that the name change under this Act does not affect the validity or effect of DMOST forms.

This Act also revises Chapter 25A of Title 16 as follows:

• Repeals requirements that conflict with the national model law regarding a patient’s ability to limit the future authority of the patient’s authorized representative to modify the orders in the patient’s POLST form.

• Allows any health-care practitioner authorized under Chapter 25A of Title 16 to complete a POLST form to find that a patient lacks sufficient decision-making capacity to execute a POLST form. Under existing law, all practitioners who are licensed and authorized to write medical orders under Title 24 may complete POLST forms but only physicians can determine that a patient lacks sufficient decision-making capacity to execute a POLST form. This change is consistent with the capacity provisions under Chapter 25 of Title 16, the recently enacted Uniform Health-Care Decisions Act.

• Requires that a health-care practitioner document their finding that a patient lacks decision-making capacity in the patient’s medical record.

• Clarifies the existing requirement that a patient’s authorized representative may not execute a POLST form for a patient unless the patient’s lack of decision-making capacity is documented in the patient’s medical record.

Makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual, including corresponding name changes to other Code sections that reference the DMOST form. In § 2718(c)(5) of Title 21, the name for an advance health-care directive under Chapter 25 of Title 16 is also corrected.

Author: Senator Pinkney