WEST VIRGINIA LEGISLATURE
2022 REGULAR SESSION
Introduced
Senate Bill 470
By Senators Maroney, Roberts, Takubo, and Stollings
[Introduced January
24, 2022; referred
to the Committee on Health and Human Resources; and then to the Committee on
the Judiciary]
A BILL to amend and reenact §16-30-3, §16-30-4, §16-30-5, §16-30-10, §16-30-13, §16-30-19, §16-30-21, §16-30-25 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-30C-5 of said code, all relating to health care decisions; defining terms; renaming the physician orders for scope of treatment as portable orders for scope of treatment and indicating that advanced practice registered nurses and physician assistant may complete them within their scope of practice; revising forms of a living will, medical power of attorney, and combined medical power of attorney and living will and specific provisions; providing clarifying language regarding the effect of signing a living will on the availability of medically administered food and fluids; requiring oral food and fluids be provided as desired and tolerated; providing reciprocity for portable orders for scope of treatment or similar medical orders validly executed in another state; providing that forms executed prior to effective date of this bill remain in full force and effect; and providing for effective date.
Be it enacted by the Legislature of West Virginia:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-3. Definitions.
For the purposes of this article:
(a) “Actual knowledge” means the possession of
information of the person’s wishes communicated to the health care provider
orally or in writing by the person, the person’s medical power of attorney
representative, the person’s health care surrogate, or other individuals
resulting in the health care provider’s personal cognizance of these wishes.
Constructive notice and other forms of imputed knowledge are not actual
knowledge.
(b) “Adult” means a person who is 18 years of age or
older, an emancipated minor who has been established as such pursuant to the
provisions of §49-4-115 of this code, or a mature minor.
(c) “Advanced nurse practitioner” means a registered
nurse with substantial theoretical knowledge in a specialized area of nursing
practice and proficient clinical utilization of the knowledge in implementing
the nursing process, and who has met the further requirements of the West
Virginia Board of Examiners for registered professional nurses rule, advanced
practice registered nurse,19CSR 7, who has a mutually agreed upon association
in writing with a physician, and has been selected by or assigned to the person
and has primary responsibility for treatment and care of the person.
(d) “Attending physician” means the physician selected by
or assigned to the person who has primary responsibility for treatment and care
of the person and who is a licensed physician. If more than one physician
shares that responsibility, any of those physicians may act as the attending
physician under this article.
(e) “Capable adult” means an adult who is physically and
mentally capable of making health care decisions and who is not considered a
protected person pursuant to the provisions of Chapter 44A of this code.
(f) “Close friend” means any adult who has exhibited
significant care and concern for an incapacitated person who is willing and
able to become involved in the incapacitated person’s health care and who has
maintained regular contact with the incapacitated person so as to be familiar
with his or her activities, health, and religious and moral beliefs.
(g) “Death” means a finding made in accordance with
accepted medical standards of either: (1) The irreversible cessation of
circulatory and respiratory functions; or (2) the irreversible cessation of all
functions of the entire brain, including the brain stem.
(h) “Guardian” means a person appointed by a court
pursuant to the provisions of Chapter 44A of this code who is
responsible for the personal affairs of a protected person and includes a
limited guardian or a temporary guardian.
(i) “Health care decision” means a decision to give,
withhold, or withdraw informed consent to any type of health care, including,
but not limited to, medical and surgical treatments, including life-prolonging
interventions, psychiatric treatment, nursing care, hospitalization, treatment
in a nursing home or other facility, home health care, and organ or tissue
donation.
(j) “Health care facility” means a facility commonly
known by a wide variety of titles, including, but not limited to, hospital,
psychiatric hospital, medical center, ambulatory health care facility,
physicians’ office and clinic, extended care facility operated in connection
with a hospital, nursing home, a hospital extended care facility operated in
connection with a rehabilitation center, hospice, home health care, and other
facility established to administer health care in its ordinary course of
business or practice.
(k) “Health care provider” means any licensed physician,
dentist, nurse, physician’s assistant, paramedic, psychologist, or other person
providing medical, dental, nursing, psychological or other health care services
of any kind.
(l) “Incapacity” means the inability because of physical
or mental impairment to appreciate the nature and implications of a health care
decision, to make an informed choice regarding the alternatives presented, and
to communicate that choice in an unambiguous manner.
(m) “Life-prolonging intervention” means any medical
procedure or intervention that, when applied to a person, would serve to
artificially prolong the dying process. or to maintain the person in a
persistent vegetative state Life-prolonging intervention includes, among
other things, nutrition and hydration administered intravenously or through a
feeding tube. The term “life-prolonging intervention” does not include the
administration of medication or the performance of any other medical procedure considered
necessary to provide comfort or to alleviate pain.
(n) “Living will” means a written, witnessed advance
directive governing the withholding or withdrawing of life-prolonging
intervention, voluntarily executed by a person in accordance with the requirements
of §16-30-4 of this code.
(o) “Mature minor” means a person, less than 18 years of
age, who has been determined by a qualified physician, a qualified
psychologist, or an advanced nurse practitioner to have the capacity to make
health care decisions.
(p) “Medical information” or “medical records” means and
includes without restriction any information recorded in any form of medium
that is created or received by a health care provider, health care facility,
health plan, public health authority, employer, life insurer, school, or
university or health care clearinghouse that relates to the past, present, or
future physical or mental health of the person, the provision of health care to
the person, or the past, present, or future payment for the provision of health
care to the person.
(q) “Medical power of attorney representative” or
“representative” means a person, 18 years of age or older, appointed by another
person to make health care decisions pursuant to the provisions of
§16-30-6 of this code or similar act of another state and recognized as valid
under the laws of this state.
(r) “Parent” means a person who is another person’s
natural or adoptive mother or father or who has been granted parental rights by
valid court order and whose parental rights have not been terminated by a court
of law.
(s)"Persistent
vegetative state" means an irreversible state as diagnosed by the
attending physician or a qualified physician in which the person has intact
brain stem function but no higher cortical function and has neither
self-awareness or awareness of the surroundings in a learned manner
(t) “Person” means an individual, a corporation, a
business trust, a trust, a partnership, an association, a government, a
governmental subdivision or agency, or any other legal entity.
(u) “Physician Portable orders for scope of
treatment (POST) form” means a standardized form containing orders by a
qualified physician, an advanced practice registered nurse, or a physician’s
assistant that details a person’s life-sustaining wishes as provided by
§16-30-25 of this code.
(v) “Principal” means a person who has executed a living
will, or medical power of attorney, or combined medical power of
attorney and living will.
(w) “Protected person” means an adult who, pursuant to the
provisions of Chapter 44A of this code, has been found by a court, because
of mental impairment, to be unable to receive and evaluate information
effectively or to respond to people, events, and environments to an extent that
the individual lacks the capacity to: (1) Meet the essential requirements for
his or her health, care, safety, habilitation, or therapeutic needs without the
assistance or protection of a guardian; or (2) manage property or financial
affairs to provide for his or her support or for the support of legal
dependents without the assistance or protection of a conservator.
(x) “Qualified physician” means a physician licensed to
practice medicine who has personally examined the person.
(y) “Qualified psychologist” means a psychologist licensed
to practice psychology who has personally examined the person.
(z) “Surrogate decision-maker” or “surrogate” means an
individual 18 years of age or older who is reasonably available, is willing to
make health care decisions on behalf of an incapacitated person, possesses the
capacity to make health care decisions, and is identified or selected by the
attending physician or advanced nurse practitioner in accordance with the
provisions of this article as the person who is to make those decisions in accordance
with the provisions of this article.
(aa) “Terminal condition” means an incurable or
irreversible condition as diagnosed by the attending physician or a qualified
physician for which the administration of life-prolonging intervention will
serve only to prolong the dying process.
§16-30-4. Executing a living will, or medical power of attorney,
or combined medical power of attorney and living will.
(a) Any competent adult may
execute at any time a living will, or medical power of attorney, or combined medical power of attorney and living will.
A living will, or medical power of attorney, or combined medical
power of attorney and living will made pursuant to this article shall be:
(1) In writing; (2) executed by the principal or by another person in the
principal’s presence at the principal’s express direction if the principal is
physically unable to do so; (3) dated; (4) signed in the presence of two or
more witnesses at least 18 years of age; and (5) signed and attested by such
witnesses whose signatures and attestations shall be acknowledged before a
notary public. as provided in subsection (d) of this section.
(b) In addition, a witness may not be:
(1) The person who signed
the living will, or medical power of attorney, or
combined medical power of attorney and living will on behalf of and at
the direction of the principal;
(2) Related to the principal by blood or marriage;
(3) Entitled to any portion
of the estate of the principal under any will of the principal or codicil
thereto: Provided, That the validity of the living will, or
medical power of attorney, or combined medical power of attorney and living
will shall may not be affected when a witness at the time of
witnessing such the living will, or medical power of
attorney, or combined medical power of attorney and living will was
unaware of being a named beneficiary of the principal’s will;
(4) Directly financially responsible for the principal’s medical care;
(5) The attending physician; or
(6) The principal’s medical power of attorney representative or successor medical power of attorney representative.
(c) The following persons may not serve as a medical power of attorney representative or successor medical power of attorney representative:
(1) A treating health care provider of the principal;
(2) An employee of a treating health care provider not related to the principal;
(3) An operator of a health care facility serving the principal; or
(4) Any person who is an employee of an operator of a health care facility serving the principal and who is not related to the principal.
(d) It shall be is
the responsibility of the principal or his or her representative to provide for
notification to his or her attending physician and other health care providers
of the existence of the living will, or medical power of attorney, or combined medical power of attorney and living will or a revocation of the living will, or medical
power of attorney, or combined medical
power of attorney and living will. An attending physician or other health care provider,
when presented with the living will, or medical power of attorney, or combined medical power of attorney and living will or the revocation of a living will, or medical
power of attorney, or combined medical
power of attorney and living will,
shall make the living will, medical power of attorney, or combined medical power of attorney and living will or a copy of either any or a revocation
of either any a part of the principal’s medical records.
(e) At the time of
admission to any health care facility, each person shall be advised of the
existence and availability of living will, and medical power of
attorney, and combined medical
power of attorney and living will
forms and shall be given assistance in completing such forms if the person
desires: Provided, That under no circumstances may admission to a health
care facility be predicated upon a person having completed either a living
will, a medical power of attorney, or combined
medical power of attorney and living will.
(f) The provision of living
will, or medical power of attorney, or
combined medical power of attorney and living will forms substantially in compliance with this article
by health care providers, medical practitioners, social workers, social service
agencies, senior citizens centers, hospitals, nursing homes, personal care
homes, community care facilities or any other similar person or group, without
separate compensation, does not constitute the unauthorized practice of law.
(g) The living will may,
but need not, be in the following form and may include other specific
directions not inconsistent with other provisions of this article. Should any
of the other specific directions be held to be invalid, such the
invalidity shall may not affect other directions of the living
will which can be given effect without the invalid direction and to this end
the directions in the living will are severable.
STATE OF WEST VIRGINIA
LIVING WILL
The Kind of Medical Treatment I Want and Don’t Want
If I Have a Terminal
Condition or Am In a Persistent Vegetative State
Living will made this _____________________________________day of _______________(month, year).
I,___________________________________________________, (Insert your name)
being of sound mind,
willfully and voluntarily declare that I want my wishes to be respected if I am
very sick and not able unable to communicate my wishes for
myself. In the absence of my ability to give directions regarding the use of
life-prolonging medical intervention, it is my desire that my dying shall
may not be prolonged under the following circumstances:
If I am very sick and not
able unable to communicate my wishes for myself and I am certified
by one physician, who has personally examined me, to have a terminal condition,
or to be in a persistent vegetative state (I am unconscious and am neither
aware of my environment nor able to interact with others) I direct that
life-prolonging medical intervention that would serve solely to prolong
the dying process or maintain me in a persistent vegetative state be
withheld or withdrawn. I understand that by signing this document I am
agreeing to the REMOVAL or REFUSAL of cardiopulmonary resuscitation (CPR),
breathing machine (ventilator), dialysis, and medically administered food and
fluids, such as might be provided intravenously or by feeding tube. I want
to be allowed to die naturally and only be given medications or other medical
procedures necessary to keep me comfortable. I want to receive as much
medication as is necessary to alleviate my pain. Nevertheless, oral food and
fluids, such as may be provided by spoon or by straw, shall be offered as
desired and can be tolerated.
________________________________________________________________________________________________________________________________________________________
It is my intention that this living will be honored as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences resulting from such refusal.
I understand the full import of this living will.
______________________________________________________________________
Signed
______________________________________________________________________
______________________________________________________________________
Address
I did not sign the
principal’s signature above for or at the direction of the principal. I am at
least 18 years of age and am not related to the principal by blood or marriage,
nor entitled to any portion of the estate of the principal to the best
of my knowledge under any will of principal or codicil thereto, or nor
directly financially responsible for principal’s medical care. I am not the
principal’s attending physician or the principal’s medical power of attorney
representative or successor medical power of attorney representative under a
medical power of attorney.
_________________________________ __________________________________
Witness DATE
_________________________________ __________________________________
Witness DATE
STATE OF
_______________________________
COUNTY OF
I, _________________________, a Notary Public of said County, do certify that ________________________________________, as principal, and________________________ and ____________________, as witnesses, whose names are signed to the writing above bearing date on the _______________ day of _______, 20____, have this day acknowledged the same before me.
Given under my hand this ______ day of ______, 20__.
My commission expires:________________________________________
_________________________________________________________________
Notary Public
(h) A
medical power of attorney may, but need not, be in the following form, and may
include other specific directions not inconsistent with other provisions of
this article. Should any of the other specific directions be held to be
invalid, such invalidity shall may not
affect other directions of the medical power of attorney which can be given
effect without the invalid direction and to this end the directions in
the medical power of attorney are severable.
STATE OF WEST VIRGINIA
MEDICAL POWER OF ATTORNEY
The Person I Want to Make Health Care Decisions
For Me When I Can’t Make Them for Myself
Dated: _____________________________ , 20______
I,____________________________________________________,
hereby
(Insert
your name and address)
hereby appoint as my representative to act on my behalf to
give, withhold or withdraw informed consent to health care decisions in the
event that I am not unable to do so myself.
The person I choose as my representative is:
______________________________________________________________________
______________________________________________________________________
(Insert the name, address,
area code and telephone number of the person you wish to designate as your
representative.)(Please insert only
one name.)
If my representative is unable, unwilling, or disqualified to serve, then I appoint as my successor representative:
______________________________________________________________________
______________________________________________________________________
(Insert the name,
address, area code, and telephone number of the person you wish to
designate as your successor representative.) Please insert only one
name)
This appointment shall
extend to, but not be limited to, health care decisions relating to medical
treatment, surgical treatment, nursing care, medication, hospitalization, care
and treatment in a nursing home or other facility, and home health care. The representative
appointed by this document is specifically authorized to be granted access to
my medical records and other health information and to act on my behalf to
consent to, refuse or withdraw any and all medical treatment or diagnostic
procedures, or autopsy if my representative determines that I, if able to do
so, would consent to, refuse, or withdraw such treatment or procedures. Such
This authority shall include, but not be limited to, decisions regarding
the withholding or withdrawal of life-prolonging interventions.
I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect the health care decisions that I would make if I were able to do so and because I also believe that this person will act in my best interest when my wishes are unknown. It is my intent that my family, my physician, and all legal authorities be bound by the decisions that are made by the representative appointed by this document and it is my intent that these decisions should not be the subject of review by any health care provider or administrative or judicial agency.
It is my intent that this document be legally binding and effective and that this document be taken as a formal statement of my desire concerning the method by which any health care decisions should be made on my behalf during any period when I am unable to make such decisions.
In exercising the authority under this medical power of attorney, my representative shall act consistently with my special directives or limitations as stated below.
I
am giving the following SPECIAL
DIRECTIVES OR LIMITATIONS ON THIS POWER: (Comments about tube feedings,
breathing machines, cardiopulmonary resuscitation, dialysis, mental health
treatment, funeral arrangements, autopsy, and organ donation may be placed
here. My failure to provide special directives or limitations does not mean
that I want or refuse certain treatments.)
____________________________________________________________________________
____________________________________________________________________________
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
_______________________________
Signature of the Principal
_______________________________
Address of Principal
I did not sign the
principal’s signature above. I am at least eighteen years of age and am not
related to the principal by blood or marriage. I am not entitled to any portion
of the estate of the principal or to the best of my knowledge under any will of
the principal or codicil thereto, or nor legally responsible for
the costs of the principal’s medical or other care. I am not the principal’s
attending physician, nor am I the representative or successor representative of
the principal.
_______________________________ ________________________
Witness: DATE
_______________________________ _________________________
Witness: DATE
_______________________________
STATE OF
_______________________________
COUNTY OF
I, ________________________________, a Notary Public of said
County, do certify that_________________________________________, as principal, and ____________________ and __________________, as witnesses, whose names are signed to the writing above bearing date on the ____________ day of _____________, 20_____, have this day acknowledged the same before me.
Given under my hand this __________ day of _____________, 20____.
My commission expires:______________________________________
_________________________________________________________________
Notary Public
(i) A combined medical
power of attorney and living will may, but need not, be in the following form,
and may include other specific directions not inconsistent with other
provisions of this article. Should any of the other specific directions be held
to be invalid, such the invalidity does not affect other
directions of the combined medical power of attorney and living will which can
be given effect without the invalid direction and to this end the
directions in the combined medical power of attorney and living will are
severable.
STATE OF WEST VIRGINIA
COMBINED MEDICAL POWER OF ATTORNEY
AND LIVING WILL
The Person I Want to Make Health Care Decisions For Me When I Can’t Make
Them for Myself And The Kind of Medical Treatment I Want and Don’t Want
If I Have a Terminal
Condition or Am in a Persistent Vegetative State
Dated: ______________________________, 20______
I, ______________________________________________________,
hereby (Insert your name and address) hereby
appoint as my representative to act on my behalf to give, withhold or withdraw
informed consent to health care decisions in the event that I am not unable
to do so myself.
The person I choose as my representative is:
_____________________________________________________________________
_____________________________________________________________________
(Insert the name, address, area code and telephone number of the person you wish to designate as your representative. Please insert only one name.).
If my representative is unable, unwilling, or disqualified to serve, then I appoint as my successor representative:
______________________________________________________________________
______________________________________________________________________
(Insert the name, address, area code and telephone number of the person you wish to designate as your successor representative. Please insert only one name.).
This appointment shall extend to, but not be limited to, health care decisions relating to medical treatment, surgical treatment, nursing care, medication, hospitalization, care and treatment in a nursing home or other facility, and home health care. The representative appointed by this document is specifically authorized to be granted access to my medical records and other health information and to act on my behalf to consent to, refuse, or withdraw any and all medical treatment or diagnostic procedures, or autopsy if my representative determines that I, if able to do so, would consent to, refuse, or withdraw such treatment or procedures. Such authority shall include, but not be limited to, decisions regarding the withholding or withdrawal of life-prolonging interventions, subject to the special directives and limitations as stated below:
I appoint this
representative because I believe this person understands my wishes and values
and will act to carry into effect the health care decisions that I would make
if I were able to do so, and because I also believe that this person will act
in my best interest when my wishes are unknown. It is my intent that my family,
my physician, and all legal authorities be bound by the decisions that are made
by the representative appointed by this document, and it is my intent that
these decisions should not be the subject of review by any health care provider
or administrative or judicial agency.
It is my intent that
this document be legally binding and effective and this this document be taken
as a formal statement of my desire concerning the method by which any health
care decisions should be made on my behalf during any period when I am unable
to make such decisions.
In exercising the
authority under this medical power of attorney, my representative shall act
consistently with my special directors or limitations as stated below.
I am giving the
following SPECIAL DIRECTIVES OR LIMITATIONS ON THIS POWER: (Comments about tube
feedings, breathing machines, cardiopulmonary resuscitation, dialysis, mental
health treatment, funeral arrangements, autopsy, and organ donation may be
placed here. My failure to provide special directives or limitations does not
mean that I want or refuse certain treatments)
1. IN A TERMINAL
CONDITION: If I am very sick and not unable to communicate my
wishes for myself and I am certified by one physician, who has personally
examined me, to have a terminal condition, to be in a persistent vegetative
state (I am unconscious and am neither aware of my environment nor able to
interact with others,) I direct that life-prolonging medical intervention
that would serve solely to prolong the dying process or maintain me in a
persistent vegetative state be withheld or withdrawn. Thus, if a
physician has determined that I am in a terminal condition, I understand that
completing this form would mean that I refuse cardiopulmonary resuscitation
(CPR). It also means that I refuse or request the removal of a breathing
machine (ventilator), dialysis, and medically administered food and fluids,
such as might be provided intravenously or by feeding tube. I want to be
allowed to die naturally and only be given medications or other medical
procedures necessary to keep me comfortable. I want to receive as much
medication as is necessary to alleviate my pain. Nevertheless, oral food and
fluids, such as may be provided by spoon or by straw, shall be offered as desired
and can be tolerated.
2. OTHER DIRECTIVES:
OTHER Living Will SPECIAL
DIRECTIVES OR LIMITATIONS ON THIS POWER: Comments about mental health
treatment, funeral arrangements, autopsy, and organ donation may be placed
here. My failure to provide special directives or limitations does not mean
that I want or refuse certain treatments.
_____________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
In exercising the authority under this medical power of attorney, my representative shall act consistently with my special directives or limitations as stated in this advance directive.
3. NOT IN A TERMINAL CONDITION: Medical Power of Attorney Special Directives or Limitations on this Power: (Comments about tube feedings, breathing machines, cardiopulmonary resuscitation, dialysis, mental health treatment, funeral arrangements, autopsy and organ donation may be placed here. My failure to provide special directives or limitations does not mean that I want or refuse certain treatments.)
_____________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect the health care decisions that I would make if I were able to do so, and because I also believe that this person will act in my best interest when my wishes are unknown. It is my intent that my family, my physician, and all legal authorities be bound by the decisions that are made by the representative appointed by this document, and it is my intent that these decisions should not be the subject of review by any health care provider or administrative or judicial agency.
It is my intent that this document be legally binding and effective and that this document be taken as a formal statement of my desire concerning the method by which any health care decisions should be made on my behalf during any period when I am unable to make such decisions.
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
_____________________________
Signature of the Principal
______________________________
Address of Principal
I did not sign the
principal's signature above. I am at least 18 years of age and am not related
to the principal by blood or marriage. I am not entitled to any portion of the
estate of the principal or to the best of my knowledge under any will of the
principal or codicil thereto, or nor legally responsible for the
costs of the principal's medical or nor other care. I am not the
principal's attending physician, nor am I the representative or successor
representative of the principal.
Witness _____________________ DATE ___________
Witness _____________________ DATE ___________
STATE OF _________________________
COUNTY OF _________________________________
I, ______________________, a Notary Public of said county, do certify that_____________________, as principal, and ____________________ and ____________________, as witnesses, whose names are signed to the writing above bearing date on the _____ day of ______________, 20___, have this day acknowledged the same before me.
Given under my hand this _____ day of _________________, 20___.
My commission expires:_______________________________
________________________________
Signature of Notary Public
(j) Any and all living will, medical power of attorney, and combined medical power of attorney and living will documents executed pursuant to §16-30-3 and §16-30-4 of this code, before the effective date of the amendments to these sections remain in full force and effect. This section is effective for a living will, medical power of attorney, or combined medical power of attorney and living will document executed, amended or adjusted on or after January 1, 2023. Accordingly, all health care facilities and health care providers using a living will, medical power of attorney, or combined medical power of attorney and living will form referenced in §16-30-4 of this code shall update their forms on or before January 1, 2023.
§16-30-5. Applicability and resolving actual conflict between advance directives.
(a) The provisions of this
article which directly conflict with the written directives contained in a
living will or medical power of attorney or combined medical power of
attorney and living will executed prior to the effective date of this
statute shall may not apply. An expressed directive contained in
a living will or medical power of attorney or combined medical power of
attorney and living will by any other means the health care provider
determines to be reliable shall be followed.
(b) If there is a conflict
between the person’s expressed directives, the physician portable
orders for scope of treatment form and the decisions of the medical power of
attorney representative or surrogate, the person’s expressed directives shall
be followed.
(c) In the event If
there is a conflict between two advance directives executed by the person, the
one most recently completed takes precedence only to the extent needed to
resolve the inconsistency.
(d) If there is a conflict between the decisions of the medical power of attorney representative or surrogate and the person's best interests as determined by the attending physician when the person’s wishes are unknown, the attending physician shall attempt to resolve the conflict by consultation with a qualified physician, an ethics committee or by some other means. If the attending physician cannot resolve the conflict with the medical power of attorney representative, the attending physician may transfer the care of the person pursuant to subsection (b), section 12 of this article.
§16-30-10. Reliance on authority of living will, physician orders for scope of treatment form, medical power of attorney representative or surrogate decisionmaker and protection of health care providers.
(a) A physician, licensed
health care professional, health care facility or employee thereof shall
may not be subject to criminal or civil liability for good-faith
compliance with or reliance upon the directions of the medical power of attorney
representative in accordance with this article.
(b) A health care provider shall
may l not be subject to civil or criminal liability for surrogate
selection or good faith compliance and reliance upon the directions of the
surrogate in accordance with the provisions of this article.
(c) A health care provider,
health care facility or employee thereof shall may l not be
subject to criminal or civil liability for good-faith compliance with or
reliance upon the orders in a physician portable orders for scope
of treatment form.
(d) No health care provider
or employee thereof who in good faith and pursuant to reasonable medical
standards causes or participates in the withholding or withdrawing of
life-prolonging intervention from a person pursuant to a living will or combined
medical power of attorney and living will
made in accordance with this article shall may, as a result
thereof, be subject to criminal or civil liability.
(e) An attending physician
who cannot comply with the living will, or medical power of attorney or
combined medical power of attorney and living will of a principal pursuant
to this article shall, in conjunction with the medical power of attorney
representative, health care surrogate or other responsible person, effect the
transfer of the principal to another physician who will honor the living will
or medical power of attorney, or combined medical power of attorney and
living will of the principal. Transfer under these circumstances does not
constitute abandonment.
§16-30-13. Interinstitutional transfers.
(a) In the event that
If a person admitted to any health care facility in this state has been
determined to lack capacity and that person’s medical power of attorney has
been declared to be in effect or a surrogate decisionmaker has been selected
for that person all in accordance with the requirements of this article and
that person is subsequently transferred from one health care facility to
another, the receiving health care facility may rely upon the prior
determination of incapacity and the activation of the medical power of attorney
or selection of a surrogate decisionmaker as valid and continuing until such
time as an attending physician, a qualified physician, a qualified psychologist
or advanced nurse practitioner in the receiving facility assesses the person’s
capacity. Should the reassessment by the attending physician, a qualified
physician, a qualified psychologist or an advanced nurse practitioner at the
receiving facility result in a determination of continued incapacity, the
receiving facility may rely upon the medical power of attorney representative
or surrogate decisionmaker who provided health care decisions at the
transferring facility to continue to make all health care decisions at the
receiving facility until such time as the person regains capacity.
(b) If a person admitted to any health care facility in this state has been determined to lack capacity and the person’s medical power of attorney has been declared to be in effect or a surrogate decisionmaker has been selected for that person all in accordance with the requirements of this article and that person is subsequently discharged home in the care of a home health care agency or hospice, the home health care agency or hospice may rely upon the prior determination of incapacity. The home health care agency or hospice may rely upon the medical power of attorney representative or health care surrogate who provided health care decisions at the transferring facility to continue to make all health care decisions until such time as the person regains capacity.
(c) If a person with an order to withhold or withdraw life-prolonging intervention is transferred from one health care facility to another, the existence of such order shall be communicated to the receiving facility prior to the transfer and the written order shall accompany the person to the receiving facility and shall remain effective until a physician at the receiving facility issues admission orders.
(d) If a person with a physician
portable orders for scope of treatment form is transferred from one
health care facility to another, the health care facility initiating the
transfer shall communicate the existence of the physician portable
orders for scope of treatment form to the receiving facility prior to the
transfer. The physician portable orders for scope of treatment
form shall accompany the person to the receiving facility and shall remain in
effect. The form shall be kept at the beginning of the patient's transfer
records unless otherwise specified in the health care facility's policy and
procedures. After admission, the physician portable orders for
scope of treatment form shall be reviewed by the attending physician and one of
three actions shall be taken:
(1) The physician portable
orders for scope of treatment form shall be continued without change;
(2) The physician portable
orders for scope of treatment form shall be voided and a new form issued; or
(3) The physician portable
orders for scope of treatment form shall be voided without a new form being
issued.
§16-30-19. Physician's
duty to confirm, communicate and document terminal condition; or persistent
vegetative state medical record identification.
(a) An attending physician
who has been notified of the existence of a living will or combined medical power of attorney and living will executed under this article, without delay after the
diagnosis of a terminal condition or persistent vegetative state of the
principal, shall take steps as needed to provide for confirmation, written
certification, and documentation of the principal's terminal condition or
persistent vegetative state in the principal’s medical record.
(b) Once confirmation,
written certification, and documentation of the principal’s terminal condition or
persistent vegetative state is made, the attending physician shall verbally
or in writing inform the principal of his or her condition or the principal’s
medical power of attorney representative or surrogate, if the principal lacks
capacity to comprehend such information and shall document such communication
in the principal’s medical record.
(c) All inpatient health care facilities shall develop a system to visibly identify a person’s chart which contains a living will or medical power of attorney, combined medical power of attorney and living will, or a portable order for scope of treatment as set forth in this article.
§16-30-21. Reciprocity.
A living will, or
medical power of attorney mental health advance directive, or medical orders
(portable orders for scope of treatment or do-not-resuscitate card), or similar
advance directive or medical orders form executed in another state is
validly executed for the purposes of this article if it is executed in
compliance with the laws of this state or with the laws of the state where
executed.
§16-30-25. Physician
Portable orders for scope of treatment form.
(a) No later than July
1, 2003, the The secretary of the Department of Health and Human
Resources shall implement the statewide distribution of standardized physician portable orders for scope of treatment (POST) forms.
(b) Physician Portable
orders for scope of treatment forms shall be standardized forms used to reflect
orders by a qualified physician, an advanced practice
registered nurse, or a physician’s assistant for medical treatment of a
person in accordance with that person's wishes or, if that person's wishes are
not reasonably known and cannot with reasonable diligence be ascertained, in
accordance with that person's best interest. The form shall be bright pink in
color to facilitate recognition by emergency medical services personnel and
other health care providers and shall be designed to provide for information
regarding the care of the patient, including, but not limited to, the
following:
(1) The orders of a qualified physician, an advanced practice registered nurse, or a physician’s assistant regarding cardiopulmonary resuscitation, level of medical intervention in the event of a medical emergency, use of antibiotics and use of medically administered fluids and nutrition and the basis for the orders;
(2) The signature of the qualified physician, an advanced practice registered nurse, or a physician’s assistant;
(3) Whether the person has completed an advance directive or had a guardian, medical power of attorney representative or surrogate appointed;
(4) The signature of the person or his or her guardian, medical power of attorney representative, or surrogate acknowledging agreement with the orders of the qualified physician; an advanced practice registered nurse, or a physician’s assistant and
(5) The date, location, and
outcome of any review of the physician portable orders for scope
of treatment form.
(c) The physician portable
orders for scope of treatment form shall be kept as the first page in a person's
medical record in a health care facility unless otherwise specified in the health
care facility's policies and procedures and shall be transferred with the
person from one health care facility to another.
ARTICLE 30C. DO NOT RESUSCITATE ACT.
§16-30C-5. Presumed consent to cardiopulmonary resuscitation; health care facilities not required to expand to provide cardiopulmonary resuscitation.
(a) Every person shall be presumed to consent to the
administration of cardiopulmonary resuscitation in the event of cardiac or
respiratory arrest, unless one or more of the following conditions, of which
the health care provider has actual knowledge, apply:
(1) A do-not-resuscitate order in accordance with the provisions of this article has been issued for that person;
(2) A completed living will
or combined medical power of attorney and living will for that person is
in effect, pursuant to the provisions of article thirty of this chapter, and
the person is in a terminal condition or a persistent vegetative state;
or
(3) A completed medical
power of attorney for that person is in effect, pursuant to the provisions
of §16-30-1 et seq. of this code, in which the person indicated that
he or she does not wish to receive cardiopulmonary resuscitation, or his or her
representative has determined that the person would not wish to receive
cardiopulmonary resuscitation.
(4) A completed physician orders for scope of treatment form in which a qualified physician has ordered do-not-resuscitate.
(b) Nothing in this article shall may require
a nursing home, personal care home, hospice or extended care facility operated
in connection with hospitals to institute or maintain the ability to provide
cardiopulmonary resuscitation or to expand its existing equipment, facilities
or personnel to provide cardiopulmonary resuscitation: Provided, That if
a health care facility does not provide cardiopulmonary resuscitation, this
policy shall be communicated in writing to the person, representative or
surrogate decision maker prior to admission.
NOTE: The purpose of this bill is to remove the persistent vegetative state from the living will and combined medical power of attorney and living will, to rename the physician orders for scope of treatment as the portable orders for scope of treatment and indicate that an advanced practice registered nurse and a physician’s assistant may complete one within their scope of practice, and to provide reciprocity for the portable orders for scope of treatment or similar medical orders validly executed in another state.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.