December 01, 2018 (As of November 1)

Summary of Health Care Decision Statutes Enacted in 2018

By Sasha D. Marseille, Legal Intern, ABA Commission on Law & Aging, 2018

In 2018, ten states adopted eleven amendments to their health decisions laws, creating, modifying, and amending rights and procedures affecting health care decision-making. The statutes affect advanced directives, default surrogate laws, Physicians Orders for Life-Sustaining Treatment (POLST), physician aid-in-dying laws, and registries. These summaries are intended to offer selected highlights and do not fully describe the laws in their entirety.

Each piece of legislation is coded to indicate the potential areas of health care decision making affected by the statute. The coding system is:

AD = Advance Directives
DNR = Do Not Resuscitate Orders
DS = Default Surrogate
POLST = Physician’s Orders for Life Sustaining Treatment, or its variants (e.g. MOLST, POST, MOST, and others).
Registry = State electronic registry for Advance Directives and/or POLST
PAD = Physician aid-in-dying legislation (also called physician assisted suicide)

Alabama 
(DNR, AD)

2018 Alabama Laws Act 2018-466
(H.B. 194).
Approved March 28, 2018. Effective July 1, 2018. An Act, Relating to terminally ill minors; to amend Sections 22-8A-2, 22-8A-3, and 22-8A-7, Code of Alabama 1975; to add Sections 22-8A-15 to 22-8A-17, inclusive, to the Code of Alabama 1975; to create the Alex Hoover Act; to authorize the parent or legal guardian of a terminally ill or injured minor to execute, in consultation with the minor's attending physician, a directive for the medical treatment and palliative care to be provided to a terminally ill or injured minor; to require the Department of Public Health, by rule and in conjunction with a task force, to establish a form for an Order for Pediatric Palliative and End of Life (PPEL) Care to be used by medical professionals outlining medical care provided to terminally ill minors in certain circumstances; to provide immunity to health care providers who provide, withhold, or withdraw medical treatment pursuant to an Order for PPEL Care; and to establish a temporary task force to work in consultation with the Department of Public Health to establish an Order for Pediatric Palliative and End of Life (PPEL) Care form.

Connecticut

(AD) 
2018 Conn. Legis. Serv. P.A. 18-11 (H.B. 5148) (WEST). Approved May 24, 2018. Effective September 1, 2001. Under prior Connecticut law, C.G.S.A. § 19a-574, a womans health care wishes were automatically nullified if she were pregnant, forcing her to receive medical life-sustaining treatment when permanently unconscious, incapacitated, or terminally ill, despite contrary instructions in their advance directive. A woman filling out an advance directive may now indicate the following:If I am pregnant:(Place a check to indicate option (1) or (2), or specify alternative instructions after (3)):

1) intend to accept life support systems if my doctor believes that doing so would allow my fetus to reach a live birth.
(2) I intend this document to apply without modifications.
(3) I intend this document to apply as follows:


Georgia

(AD, POLST)
2018 Georgia Laws Act 419 (H.B. 803).
Approved May 7, 2018. Effective August 1, 2018. The law defines the crime of “trafficking a disabled adult, elder person, or resident when such person, through deception, coercion, exploitation, or isolation, knowingly recruits, harbors, transports, provides, or obtains by any means a disabled adult, elder person, or resident for the purpose of appropriating the resources of such disabled adult, elder person, or resident for one’s own or another person’s benefit.”

Section 16–5–102.1(f) of the law provides the following exception: This code section shall not apply to a physician nor any person acting under a physician’s direction nor to a hospital, hospice, or long-term care facility, nor any agent or employee thereof who is in good faith acting within the scope of his or her employment or agency or who is acting in good faith in accordance with a living will, a durable power of attorney for health care, an advance directive for health care, a Physician Orders for Life–Sustaining Treatment form pursuant to Code Section 31–1–14, an order not to resuscitate, or the instructions of the patient or the patient’s lawful surrogate decision maker.

Hawaii

(DS)
2018 Hawaii Laws Act 125 (H.B. 1812).
Approved July 5, 2018. Effective October 1, 2018. The purpose of this Act is to clarify that health care surrogates appointed under section 327E–5, Hawaii Revised Statutes, may operate as authorized representatives in order to act on behalf of a patient during the Medicaid application process and for Medicaid related matters.

  • “Surrogate” means an individual, other than a patient’s agent or guardian, authorized under this chapter to make a health-care decision or to act as a Medicaid authorized representative for the patient.
  • A surrogate may act as a Medicaid authorized representative, pursuant to federal and state Medicaid laws relating to authorized representatives, on the patient’s behalf for the purposes of Medicaid, including but not limited to assisting with, submitting, and executing a Medicaid application, redetermination of eligibility, and other on-going Medicaid-related communications with the department of human services. For the purposes of Medicaid, the surrogate may access Medicaid records of the patient on whose behalf the surrogate was designated to act. For a surrogate to be able to act under this subsection, the surrogate shall agree to be legally bound by the federal and state authorities related to authorized representatives, including but not limited to maintaining the confidentiality of any information provided by the department of human services, in compliance with all state and federal confidentiality laws. The surrogate’s status as an authorized representative for the purposes of Medicaid shall terminate when revoked by a patient who no longer lacks decisional capacity, upon appointment or availability of an agent or guardian of the person, or upon the patient’s death.

(PAD)
2018 Hawaii Laws Act 2 (H.B. 2739).
Approved April 5, 2018. Effective July 1, 2018. Establishes a regulated process under which an adult resident of the State with a medically confirmed terminal disease and less than six months to live may choose to obtain a prescription for medication to end the patient’s life. Imposes criminal sanctions for tampering with a patient’s request for a prescription or coercing a patient to request a prescription.

Idaho

(Registry)

2018 Idaho Laws Ch. 143 (S.B. 1274). Approved March 19, 2018. Effective July 1, 2018. An act relating to public records provides in § 74-106 (26) that:

  • File numbers, passwords and information in the files of the health care directive registry maintained by the secretary of state under section 39–4515, Idaho Code, are confidential and shall not be disclosed to any person other than to the person who executed the health care directive or the revocation thereof and that persons legal representatives, to the person who registered the health care directive or revocation thereof, and to physicians, hospitals, medical personnel, nursing homes, and other persons who have been granted file number and password access to the documents within that specific file.

Michigan

(Registry) 
2018 Mich. Legis. Serv. P.A. 208 (S.B. 897) (WEST)
. Approved June 22, 2018. Effective September 20, 2018. This bill directs the Department of Health and Human Services to seek a Medicaid waiver from the federal government that would impose work requirements and a copayment on beneficiaries. Section 105d. (1)(g) of the Act requires that enrollees be informed about advance directives and required to complete a department-approved advance directive unless they exercise option to decline. The advance directives received from enrollees as provided in this subdivision shall be transmitted to the peace of mind registry organization to be placed on the peace of mind registry.

Nebraska 

(DS, PAD) 
2018 Nebraska Laws L.B. 104. Approved and effective April 4, 2018 (not yet codified).
This bill establishes for the first time a default surrogate for health care decisions, allows people to make health care decisions for certain adults and emancipated minors. A patient can designate a surrogate to make health care decisions on his or her behalf in the event that the patient becomes incapacitated by personally informing the primary health care provider.

In the absence of a designation, a member of the patient’s family can act as surrogate in the following descending order of priority: spouse, adult child, parent or adult sibling. 

  • If multiple people of equal standing assume authority as a surrogate but they disagree on a health care decision, the supervising health care provider will comply with the majority decision.
  • A surrogate will be required to make health care decisions in accordance with the patient’s instructions and wishes, if known. Otherwise decisions must be made in the patient’s best interests, taking into account his or her personal values.
  • Decisions made by a health care surrogate will not require judicial approval.
  • The bill specifically prohibits an owner, operator or employee of a health care facility at which the patient is residing or receiving care from acting as a surrogate. An exception can be made if that person is related to the patient by blood, marriage or adoption. 

Oregon

(AD)
2018 Oregon Laws Ch. 36 (H.B. 4135).
Approved March 16, 2018. Effective June 2, 2018 (not yet codified). Modifies statutory advance directive form. Creates Advance Directive Adoption Committee (ADAC) consisting of Long Term Care Ombudsman and 12 members appointed by Governor. Requires ADAC to adopt advance directive form and to review form at least once every four years. Establishes components of form that cannot be changed by ADAC. Establishes alternative form that may be used until January 1, 2022. Directs ADAC to submit adopted form to interim committee of Legislative Assembly related to judiciary on or before September 1 of even-numbered year subsequent to adoption of form. Allows advance directive form to be notarized or witnessed by two adults other than health care provider or health care representative. Continues effectiveness of advance directives completed prior to effective date of Act and allows good-faith execution of older advance directive forms.

SECTION 3 of the act states that at a minimum, the form of an advance directive adopted under this section must contain the following elements:

(a) A statement about the purposes of the advance directive,

(b) A statement explaining that to be effective the advance directive must be:

- Accepted by signature or other applicable means; and

- Either witnessed and signed by at least two adults or notarized.

(c) A statement explaining that to be effective the appointment of a health care representative or an alternate health care representative must be accepted by the health care representative or the alternate health care representative.

(d) A statement explaining that the advance directive, once executed, supersedes any previously executed advance directive.

(e) The name, date of birth, address and other contact information of the principal.

(f) The name, address and other contact information of any health care representative or any alternate health care representative appointed by the principal.

(g) A section providing the principal with an opportunity to state the principal’s values and beliefs with respect to health care decisions, including the opportunity to describe the principal’s preferences, by completing a checklist, by providing instruction through narrative or other means, or by any combination of methods used to describe the principal’s preferences

(h) A section where the principal and the witnesses or notary may accept by signature or other means, including electronic or verbal means, the advance directive.

(i) A section where any health care representative or any alternate health care representative appointed by the principal may accept the advance directive by signature or other means, including electronic or verbal means.

Vermont

AD
2018 Vermont Laws No. 121 (H.690). Approved May 5, 2018. Effective May 5, 2018, amends parts of VT ST T. 18 § 9701 through § 9718. This act amended the institutional signing requirements for advance directives by requiring that, at the time of execution, where the principal is being admitted to or is a resident of a nursing home or residential care facility, the directive is not valid unless one of the following individuals explains the nature and effect of an advance directive to the principal and signs a statement affirming that he or she has provided the explanation:
(A) an ombudsman;
(B) a recognized member of the clergy;
(C) an attorney licensed to practice in this State;
(D) a Probate Division of the Superior Court designee;
(E) an individual designated by a hospital pursuant to subsection 9709(d) of this title;
(F) a mental health patient representative;
(G) an individual who is volunteering at the nursing home or residential care facility without compensation and has received appropriate training regarding the explanation of advance directives; or
(H) a clinician, as long as the clinician is not employed by the nursing home or residential care facility at the time of the explanation.

For a patient admitted or being admitted to the hospital, the following persons may fulfill this duty:
1) an ombudsman;
(2) a recognized member of the clergy;
(3) an attorney licensed to practice in this State;
(4) a Probate Division of the Superior Court designee;
(5) an individual designated by the hospital pursuant to subsection 9709(d) of this title; or
(6) a mental health patient representative.

It further specifies that a health care provider may serve as a witness to a principal’s execution of an advance directive, as may the individual who explains the nature and effect of the advance directive if the principal is being admitted to or is a patient in a hospital, or is being admitted to or is a resident of a nursing home or residential care facility, at the time the advance directive is being executed. The act also expands the description of a clinician who may have signed a patient’s do-not-resuscitate (DNR) order or clinician order for life-sustaining treatment (COLST) to include a clinician who treated the patient outside Vermont and held a valid license to practice in the state in which the patient was located at the time the DNR/COLST was issued.

Virginia

(DS)
2018 Virginia Laws Ch. 565 (S.B. 222)
. Approved March 30, 2018. Effective July 1, 2018. An Act to amend and reenact §§ 32.1–127 and 54.1–2990 of the Code of Virginia, relating to medically or ethically inappropriate care not required. Requires that each hospital that is equipped to provide life-sustaining treatment shall develop a policy governing determination of the medical and ethical appropriateness of proposed medical care, which shall include:

  • a process for obtaining a second opinion regarding the medical and ethical appropriateness of proposed medical care in cases in which a physician has determined proposed care to be medically or ethically inappropriate;
  • provisions for review of the determination that proposed medical care is medically or ethically inappropriate by an interdisciplinary medical review committee and a determination by the interdisciplinary medical review committee regarding the medical and ethical appropriateness of the proposed health care; and
  • requirements for a written explanation of the decision reached by the interdisciplinary medical review committee, which shall be included in the patient’s medical record. Such policy shall ensure that the patient, his agent, or the person authorized to make medical decisions pursuant to § 54.1–2986 (a) are informed of the patient’s right to obtain his medical record and to obtain an independent medical opinion and (b) afforded reasonable opportunity to participate in the medical review committee meeting. Nothing in such policy shall prevent the patient, his agent, or the person authorized to make medical decisions pursuant to § 54.1–2986 from obtaining legal counsel to represent the patient or from seeking other remedies available at law, including seeking court review, provided that the patient, his agent, or the person authorized to make medical decisions pursuant to § 54.1–2986, or legal counsel provides written notice to the chief executive officer of the hospital within 14 days of the date on which the physician’s determination that proposed medical treatment is medically or ethically inappropriate is documented in the patient’s medical record. If, at the end of the 14– day period, the conflict remains unresolved despite compliance with the hospital’s written policy established pursuant to subdivision B 21 of § 32.1–127 and the physician has been unable to identify another physician or facility willing to provide the care requested by the patient, the terms of the advance directive, or the decision of the agent or person authorized to make decisions pursuant to § 54.1–2986 to which to transfer the patient despite reasonable efforts, the physician may cease to provide the treatment that the physician has determined to be medically or ethically inappropriate subject to the right of court review by any party.