Summary of Health Care Decision Statutes Enacted in 2020-2021

The PDF in which this article appears can be dowloaded here: Bifocal Vol. 43 Issue 1.

In 2020 and 2021, twenty states adopted twenty-four amendments to their health decisions laws, creating, modifying, and amending rights and procedures affecting health care decision-making. The statutes affect advance directives, Physicians’ Orders for Life-Sustaining Treatment (POLST), default surrogates, physician aid-in-dying legislation, and state electronic 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 as follows.

AD = Advance Directives

DS = Default Surrogate

POLST = Physicians’ 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

Transplants = Organ Transplant

PAD = Physician aid-in-dying legislation

Colorado

(AD)

2021 Colo. Legis. Serv. Ch. 115 (S.B. 21-195). Approved May 7, 2021. Effective May 7, 2021. An Act Concerning Permitting Notarization of Certain Probate Documents.

This provision amends the state’s living will law (the Colorado Medical Treatment Decision Act) at §15-18-106 to authorize notarization as an alternative to two witnesses in the execution of a living will declaration. It adds that neither the witnesses nor notary may be

(a) the attending physician or any other physician;

(b) an employee of the attending physician or health care facility in which the declarant is a patient;

(c) a person who has a claim against any portion of the estate of the declarant at his or her death at the time the declaration is signed; or

(d) a person who knows or believes that he or she is entitled to any portion of the estate of the declarant upon the declarant's death either as a beneficiary of a will in existence at the time the declaration is signed or as an heir at law.

Delaware

(DS)

2020 Delaware Laws Ch. 270 (S.B. 246). Approved August 6, 2020. Effective August 6, 2020. An Act to Amend Title 16 of the Delaware Code Relating to Health and Safety Obligations of Health-Care Providers for Non-Acute Patients.

The Act added Section 2519, “Health-care institutions and guardianships for non-acute patients”, in its entirety to Chapter 25, “Health-Care Decisions.” The new Section addresses situations in which a patient in the hospital no longer needs acute care but neither the patient or a surrogate for the patient is able or willing to seek or agree to an appropriate non-hospital placement. The amendment first requires a health-care institution to provide a written notice to a non-acute patient, the patient’s surrogate, and, if the patient does not have a surrogate, to any member of the patient’s family who is reasonably available, that the health-care institution has concluded that the non-acute patient would benefit from the appointment of a guardian. The Section provides procedural requirements for the appointment of a guardian, including deadlines for filing and authorization for the health care institution to petition for guardianship for purposes of placement if no one else has done so within the time limits.

District of Columbia

(AD)

2021 District of Columbia Laws Act 24-9 (Act 24-62). Approved May 3, 2021. Effective June 24, 2021. An Act to provide, for a temporary basis, for the health, safety, and welfare of District residents and support to businesses during the current public health emergency; and for other purposes.

Note: This is a temporary Act that replaced 2020 District of Columbia Laws 23-130 (Act 23-334). Approved July 7, 2020. Effective October 9, 2020. An Act to provide, on a temporary basis, for the health, safety, and welfare of District residents and support to businesses during the current public health emergency; and for other purposes. The 2020 Act had identical language for all relevant provisions.

The Act updates the “Natural Death Act” (DC Code §§ 7-621 – 630) and the Health Care Decisions Act (DC Code §§ 21-2201 – 2213) to authorize the electronic presence of witnesses when the mayor has declared a public health emergency. “Electronic presence” means “when one or more witnesses are in a different physical location than the signatory but can observe and communicate with the signatory and one another to the same extent as if the witnesses and signatory were physically present with one another.”

Florida

(Transplants)

2020 Fla. Sess. Law Serv. Ch. 2020-139 (C.S.H.B. 1179). Approved June 29, 2020. Effective July 1, 2020. An Act relating to nondiscrimination in organ transplants.

This Act added Section 765.523 to the Health Care Advance Directives chapter to prohibit discrimination in access to anatomical gifts and organ transplants. The amendment adds five new definitions as used in this Section: “auxiliary aids and services”, “covered entity”, “disability”, “organ transplant”, and “qualified individual”.

Section 765.523 describes what a covered entity may not do solely on the basis of an individual’s disability:

1. Consider a qualified individual ineligible to receive an anatomical gift or organ transplant.
2. Deny medical or other services related to an organ transplant, including evaluation, surgery, counseling, and posttransplant treatment and services.
3. Refuse to refer the individual to an organ procurement organization or a related specialist for the purpose of evaluation or receipt of an organ transplant.
4. Refuse to place a qualified individual on an organ transplant waiting list.
5. Place a qualified individual at a lower priority position on an organ transplant waiting list than the position at which the qualified individual would have been placed if not for the disability.

The Section allows an entity to take an individual’s disability into account if it is medically significant to the provision of the anatomical gift or organ transplant to the extent that the entity is making treatment or coverage recommendations or decisions for the individual. The inability to independently comply with posttransplant medical requirements may not be considered if an individual has the necessary support system to assist him or her in complying with posttransplant medical requirements.

The entity is also responsible for taking steps necessary to ensure that an individual with a disability is not denied services due to the absence of auxiliary aids and services, unless taking the steps would fundamentally alter the nature of the services being offered or would result in an undue burden on the covered entity.

Finally, Section 765.523 allows a qualified individual affected by a violation of this Section to bring an action in the appropriate circuit court for injunctive or other equitable relief. The Section may not be construed to require a covered entity to make a referral or recommendation for or perform a medically inappropriate organ transplant.

Idaho

(Registry)

2020 Idaho Laws Ch. 297 (H.B. 616). Approved March 24, 2020. Effective July 1, 2020. An Act Relating to Health Care Directives.

Under prior Idaho Law, a directive was registered with the Secretary of State. Under amended Section 39-4510, a directive is registered with the Department of Health and Welfare. The Act addressed a similar provision in Section 39-4514.

Under prior law, the Secretary of State maintained a health care directive registry website. Under amended Section 39-4515, the Department of Health and Welfare now maintains all registry provisions that the secretary of state was responsible for:

1. Maintains the directory on a web-based platform. The registry will now be available twenty-four hours a day, seven days a week, and shall incorporate the previously submitted registry to the secretary of state. In addition, a person may now register either online or by submitting the registration form in the mail, where previously a person could only register through the mail.
2. Charges and collects a fee for the registration.
3. Uses the information contained in the registry as defined in this Section.
4. Does not review a directive or revocation thereof to ensure that the document complies with any applicable and statutory requirements.
5. Deletes the directive and registration from the registry when the Department receives (1) written notification to remove a directive signed by the maker thereof or that person’s legal representative along with the identification number and assigned password, or (2) verification from the bureau of vital records and health statistics of the department of health and welfare that the person who executed the directive is deceased. The amendment updated the latter from the bureau of health policy to the bureau of vital records and health statistics, and removed the requirement for the department of health to share its registry of death certificates with the secretary of state to fulfill these responsibilities.
6. Appropriates and administers the health care directive registry fund to support, promote, and maintain the health care directive registry.

Neither the Department of Health and Welfare nor the state of Idaho will be subject to civil liability for any claims or demands arising out of the administration or operation of the registry.

(POLST)

2020 Idaho Laws Ch. 337 (H.B. 578). Approved March 30, 2020. Effective July 1, 2020. An Act Relating to Health; Amending Chapter 45, Title 39, Idaho Code, by the Addition of a New Section 39-4516, Idaho Code, to Establish Provisions Regarding Life-Sustaining Treatment for Unemancipated Minors.

The Act added Section 39-4516, “Life-sustaining treatment for unemancipated minors” or “Simon’s Law,” as an addition to the Medical Consent and Natural Death Act.

The amendment defines three terms used in this Section: “order not to resuscitate,” “reasonable medical judgment,” and “unemancipated minor.”

The Section provides that an order not to resuscitate, an order to withhold artificial life-sustaining procedures, an order to withhold artificial nutrition and hydration, and similar physician’s orders shall not be instituted, either orally or in writing, unless at least one parent or legal guardian of an unemancipated minor who is a patient or resident of a hospital or health care facility under whose care the unemancipated minor has been admitted has first been notified of the physician’s intent to institute such an order, and reasonable attempts have been made to notify any other parent or legal guardian, provided such parent or guardian is reasonably available and has custodial or visitation rights. The Section provides procedural requirements, such as the forty-eight hour provision, that the physicians must follow.

The parent or legal guardian may also request transfer of the unemancipated minor patient or resident to another facility or discharge after being notified of the intent to institute an order not to resuscitate. Section 39-4516 provides procedural requirements for this transfer, and responsibilities for both the parent and the physician.

Indiana

(AD)

2021 Ind. Legis. Serv. P.L. 50-2021 (S.E.A. 204). Approved April 15, 2021. Effective July 1, 2021. An Act to amend the Indiana Code concerning health. The Act is a major rewrite of Indiana’s health decisions laws. It combines and clarifies three related statutes that had addressed different components of Indiana’s current advance directives: 1) the health care representative appointment (IC 16-36-1); 2) the health care provisions in the power of attorney statute (IC 30-5); and 3) the living will statute (IC 16-36-4).

The basic elements of the new Indiana advance directive (AD) include:

(1)       No official or mandatory form is required for an AD.

(2)       Basic permitted and typical contents:

(a)        Name one or more “health care representatives” (HCRs).

(b)       State specific health care decisions and/or treatment preferences, including preferences for life-prolonging procedures or palliative care. The statute contains no limitations on the expression of treatment preferences.

(c)        One may disqualify named individual(s) from receiving delegated authority or serving as a HCR.

(3)       Signing requirements:

(a)        Declarant (patient or signer) signs on paper or electronically OR directs some adult (not a health care representative and not a witness) to sign declarant’s name in declarant’s direct presence.

(b)       Declarant signs in the “presence” of 2 adult witnesses OR signs in the “presence” of a notary public or other notarial.

(c)        The 2 witnesses OR the notarial officer also sign the AD electronically or on paper.

General authority with respect to health care powers under an advance directive also includes authority to:

• Employ or contract with servants, companions, or health care providers to care for the principal.
• Admit or release the principal from a hospital or health care facility.
• Have access to records, including medical records, concerning the principal’s condition.
• Make certain pre- and post-mortem decisions: anatomical gifts, autopsy, and disposition of the principal’s body.

Maryland

(AD)

2020 Maryland Laws Ch. 568 (S.B. 576). Approved May 8, 2020. Effective October 1, 2020. An Act concerning health occupations – nurse practitioners – certifications of competency and incapacity.

Under the prior provision in the state’s Health Care Decisions Act, prior to withholding or withdrawing treatment, the attending physician and a second physician, one of whom shall have examined the patient within 2 hours before making the certification, had to certify in writing that the patient is incapable of making an informed decision regarding the treatment. Under amended Section 5-606, the certification can be provided by the attending physician and a second physician or a nurse practitioner. This certification is not required if the patient is unconscious. The second physician or the nurse practitioner may not be otherwise currently involved in the treatment of the person assessed.

(AD)

2021 Maryland Laws Ch. 686 (H.B. 1261). Approved May 30, 2021. Effective October 1, 2021. An Act concerning wills, powers of attorney, and advanced directives – electronic execution.

Amended Section 5-601 now includes several new definitions: “electronic,” “electronic presence,” and “physical presence,” which have the meanings stated in Section 4-101 of the Estates and Trusts Article. Key definitions in Section 4-101 of the Estates and Trusts Article include:

• “Electronic” means technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
• “Electronic presence” means two or more individuals communicating in real time using electronic audio-visual means to the same extent as if the individuals were in the physical presence of each other.
• “Electronic signature” means an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.
• “Physical presence” means being close enough to see, hear, and speak with another individual without using electronic audio-visual means.
• “Record” means information readable as text that is inscribed on a tangible medium or that is stored in an electronic medium and retrievable in perceivable form.
• “Sign” means, with present intent to authenticate or adopt a record, to:

(1) Execute or adopt a tangible symbol; or

(2) Attach to or logically associate with the record an electronic symbol, sound, or process.

Minnesota

(AD)

2020 Minn. Sess. Law Serv. Ch. 115 (S.F. 13). Approved May 27, 2020. Effective July 1, 2020. An Act relating to human services.

Under prior law, a physician’s determination that the person lacks decision-making capacity was required for triggering the effectiveness of the person’s health care directive. The amended Section 145C.02 authorizes an advanced practice registered nurse to make that determination, too.

Amended Sections 145C.05, 145C.06, 145C.07, 145C.16, and 145B.13 provide additional duties and responsibilities to advanced practice registered nurses where prior law allowed the judgment of only the principal’s attending physician.

Nebraska

(AD)

2020 Nebraska Laws L.B. 247. Approved August 6, 2020. Effective November 14, 2020. A bill for an Act relating to health care. The Act added Sections 30-4401 – 15, creating a distinct “Advance Mental Health Care Directives Act,” within Chapter 30, Decedents’ Estates; Protection of Persons and Property. The Act enables one to provide instructions for any foreseeable mental health care when the individual loses capacity to make decisions regarding mental health care, including, but not limited to, consenting to inpatient mental health treatment, psychotropic medication, or electroconvulsive therapy. It does not include psychosurgery. The Act permits the use of what is sometimes referred to as a “Ulysses clause” that authorizes one to give a binding consent to certain treatments in the present even if it is refused later due to illness-induced refusals.

The Act provides an optional form for a mental health care directive and provides that it may be combined with a health care power of attorney which appoints an agent (“attorney in fact”) to make health care decisions, including mental health care decisions, for the principal when the principal is incapable of doing so. Immunity provisions are included for professionals and one’s agent acts in good faith pursuant to the directive.

New provisions also add “mental health treatment team member, romantic or dating partner” to the statutory list of disqualified witness to a health care power of attorney, including a mental health advance directive. In addition, a member of the mental health treatment team of the principal may not serve as the principal’s attorney in fact.

New Hampshire

(AD)

2020 New Hampshire Laws Ch. 39 (H.B. 1639). Approved July 29, 2020. Effective dates July 1, 2020 (Sections 5, 55-57, 60, 64-67, 68 and 69); July 29, 2020 (remainder); September 27, 2020 (Sections 9-12, 50-54, and 59); January 1, 2021 (Sections 7, 8, 14, 23, 25, 26-47, 49, 61-63); June 30, 2021 (Sections 1, 20-22, and 24). An Act relative to health care.

New Hampshire extended the definition of “attending physician or APRN” to include PAs, or physician assistants. Under amended Section 137-J:2, “attending physician, PA, or APRN” means the physician, physician assistant, or advanced practice registered nurse, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient. If more than one physician, physician assistant, or advance practice registered nurse shares that responsibility, any one of those physicians, physician assistants, or advance practice registered nurses may act as the attending physician, PA, or APRN under the provisions of this chapter. Amended Sections 137-J:1, -J:2, -J:5, -J:6, -J:7, -J:10, -J:14, -J:15, -J:19, -J:20, and -J:22 account for this change, extending duties to PAs where prior law only allowed for physicians or advance practice registered nurses.

The Act also added new provisions for COVID-19 patients. Under amended Section 137-J:5, for any patient experiencing severe, advanced COVID-19 symptoms of COVID-19 complications who does not have the capacity to consent himself or herself to an experimental treatment, an agent or surrogate shall have the authority to consent to experimental treatments, authorized by an institutional review board, on the patient for COVID-19 symptoms or complications.

For an agent or surrogate to approve the use of an experimental treatment, approved by an institutional review board, the agent or surrogate must be informed of all risks and side effects and follow all institutional review board instructions regarding consent as if the agent or surrogate were the individual receiving the treatment. An agent or surrogate shall not consent unless the following factors exist:

1. The patient is confronted by a life-threatening situation necessitating the use of the experimental treatment; and
2. Informed consent cannot be obtained from the patient because of an inability to communicate with, or obtain legally effective consent from, the patient; and
3. There is no alternate method of approved or generally recognized therapy available that provides an equal or greater likelihood of saving the life of the patient.

If a patient has a living will, the agent shall follow the directions of the living will. In addition, if the agent or surrogate has actual knowledge that the patient wished to decline the experimental treatment, the agent or surrogate shall not have the authority to consent to treatment.

North Carolina

(AD)

2020 North Carolina Laws S.L. 2020-3 (S.B. 704). Approved May 4, 2020. Enacted May 4, 2020. An Act to provide aid to North Carolinians in response to the Coronavirus Disease 2019 (COVID-19) crisis.

Section 32A-16.1 and Section 90-321.1 were added to provide special rules for health care powers of attorney and advanced directives for natural death declarations executed during a state of emergency. The Section provides that the requirement of G.S. 32A-16(3) and G.S. 90–321, which require these documents to be executed in the presence of two qualified witnesses, shall be waived for all instruments executed on or after the effective date of this Section and prior to termination of the state of emergency declared by Governor Roy Cooper in Executive Order No. 116, on March 10, 2020, as the same may be extended by any subsequent executive order. In addition, such documents executed without two qualified witnesses during the time period defined in subsection (a) of this Section shall contain a short and plain statement indicating that the instrument was executed in accordance with the procedures of this Section.

This Section expired at 12:01 A.M. on August 1, 2020; provided, however, all instruments made in accordance with this Section and while this Section is in effect shall remain effective and shall not need to be reaffirmed.

Oklahoma

(AD)

2021 Okla. Sess. Law Serv. Ch. 269 (S.B. 164). Approved April 27, 2021. Effective November 1, 2021. An Act relating to medical care.

The Act amends prior law at Title 63 § 3102A, regulating surrogate consent to experimental treatment on behalf of an adult person, by changing “adult person” to “patient,” thereby including minors. When an adult person, because of a medical condition, is treated by a licensed medical doctor or doctor of osteopathy holding a faculty appointment at a medical school accredited by the Liaison Committee on Medical Education or American Osteopathic Association, or holding clinical privileges at a healthcare institution that conducts human subject research approved by local institutional review board, and such person is incapable of giving informed consent for a local institutional review board approved experimental treatment, test or drug, then the administration of such treatment, test or drug may proceed upon obtaining informed consent of a legal guardian, attorney-in-fact with health care decision authority, or a family member.

Because the statute now covers minors as well, further amendments describe the order of priority for obtaining the necessary consent. The Act added that the consent must be obtained from a parent or legal guardian if the patient is a minor.

In addition, the Act added two new provisions. First, in a life-threatening emergency, consent of such an incapacitated person to any research program or experimental procedure shall not be required when the applicable accredited institutional review board has approved both the research activity and a waiver of informed consent and has both found and documented that the requirements for an exception from informed consent requirements for emergency research have been satisfied. Second, the Act prohibits a parent, legal guardian, attorney-in-fact or family member from authorizing the use of an experimental treatment, test or drug on a pregnant patient.

Oregon

(AD & POLST)

2020 Oregon Laws 1st Sp. Sess. Ch. 20. (S.B. 1606). Approved July 7, 2020. Effective July 7, 2020. An Act relating to health care (not yet codified).

The Act amends Section 127.635 of the Oregon Health Decisions Act to a include a new provision. Before life-sustaining procedures may be withheld or withdrawn for a principal who has an intellectual or developmental disability, the person designated under subsection 2 or 3 of this Section (which provide an order of default surrogates if the person has no appointed health care representative or applicable advance directive) must contact the Department of Human Services to determine if the principal has a case manager and provide notice to the case manager in accordance with subsection 4 of this Section.

New provisions were added in entirety. Under the new provisions, a hospital may not:

1. Condition the provision of treatment on a patient having a POLST, advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration;
2. Communicate to any individual or person acting on behalf of the individual, before or after admission to the hospital, that treatment is conditioned on the individual's having a POLST, an advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration;
3. Suggest to any individual, or person acting on behalf of the individual, who contacts the hospital regarding treatment for the individual that admission or treatment is conditioned on the individual's having a POLST, an advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration; or
4. Discriminate in any other way against an individual based on whether the individual has a POLST, an advance directive or any instruction relating to the administration, withholding or withdrawing of life-sustaining procedures or artificially administered nutrition and hydration.

New provisions regarding health care support persons add definitions of “patient” and “support person.” Hospitals must allow a patient to designate at least three support persons, and to allow at least one support person to be present with the patient at all times in the emergency department and during the patient's stay at the hospital, if necessary to facilitate the patient's care. The Section provides a list of instances where the support person could be necessary. A hospital may also impose conditions regarding support persons to ensure the safety of the patient, support person and staff.

A hospital must ensure that a support person designated by a patient is present for any discussion in which the patient is asked to elect hospice care or to sign an advance directive or other instrument allowing the withholding or withdrawing of life-sustaining procedures or artificially administered nutrition or hydration, unless the patient requests to have the discussion outside of the presence of a support person. A hospital must inform a patient, at the time the hospital services are scheduled and upon admission, of the patient's right to support persons under this Section and must post the hospital's policy and requirements for support persons at entry points to the hospital and on the hospital's website.

Finally, this Section does not affect a hospital’s obligation to (a) Provide patients with effective communication supports or other reasonable accommodations in accordance with federal and state laws; or (b) Make exceptions to the hospital visitor policy, including exceptions to the number of support persons allowed access to the patient, as a reasonable accommodation under the Americans with Disabilities Act.

(AD)

2021 Oregon Laws Ch. 328 (S.B. 199). Approved June 15, 2021. Effective June 15, 2021. An Act relating to advance directives.

First, the Act provides a form for an advance directive, and requires an advance directive executed by an Oregon resident or by a resident of any other state while physically present in the state to be substantially in the form provided. The form addresses the purpose of the form, describes a description of the individual, appoints a health care representative, and allows space for a description of health care instructions and decisions regarding terminal conditions, advanced progressive illnesses, or permanent unconsciousness. The form also provides space for the individual to explain values, spiritual beliefs, place of care, and more. Amendments to Section 127.510 reflect the changes in a recommended form.

Under prior law, the Advance Directive Adoption Committee adopted the form of the advance directive and recommended changes as necessary. Under the amended Section, the renamed Advance Directive Advisory Committee only advises the Legislative Assembly regarding the form of an advance directive and the Assembly adopts the form. The Advisory Committee recommends changes and prepares written materials that provide information regarding advance directives to assist the public with completing the advance directive form.

In addition to several elements that any form recommended by the Advisory Committee must include under prior law, the amendment adds requirements for the form. This includes:

• A statement of information available on the Oregon Health Authority’s website;
• A statement explaining that the principal may attach supplementary material describing the principal’s treatment preferences to the advance directive and that any attached supplementary material will be considered a part of the advance directive; and
• A statement explaining the execution formalities for the form.

The Act adds a new provision to Section 127.533. The Advisory Committee shall submit a report detailing the Advisory Committee's recommendations on or before September 1 of an even-numbered year following the date on which the Advisory Committee finalizes its recommendations. The report goes to an interim committee of the Legislative Assembly for consideration.

Finally, the Act spells out in more detail the requirement that a health care representative must accept their appointment to be effective. Under amended Section 127.525, a person may accept appointment as a health care representative in a form appointing the health care representative by (a) signing the acceptance of appointment, or (b) representing to a third party that the person has accepted the authority and duties of a health care representative.

South Dakota

(AD)

2020 South Dakota Laws Ch. 214 (SB 148). Approved March 20, 2020. Effective July 1, 2020. An Act to adopt the Uniform Power of Attorney Act.

Under prior law, the state’s power of attorney law permitted the delegation of both financial and health decisions powers. The new Act adopts the Uniform Power of Attorney Act substantiallyin whole, including the statutory form, and disallows its use for health care decision-making. More information on the Uniform Power of Attorney Act can be found on the web page of the Uniform Law Commission.

A separate authorization for a health care power of attorney at §59-7-2.1 to §59-7-11 remains, as amended. Section 59-7-2.4 adds that, if a guardian or conservator later needs appointing, the court must make an appointment under this section in accordance with the principal’s most recent nomination except for good cause shown or disqualification.

Existing section 59-7-8 described immunity for physicians and health care providers. Amended Section 59-7-8 includes two new provisions. First, a physician or other health care provider who in good faith makes a determination in a writing or other record that a principal is incapacitated as defined in Section 59-12-1 is not subject to criminal prosecution, civil liability, or professional disciplinary action for making that determination. Second, an attorney, judge, or governmental official who in good faith makes a determination in a writing or other record that a principal is incapacitated within the meaning of Section 59-12-1 is not subject to criminal prosecution, civil liability, or professional disciplinary action for making that determination.

Utah

(POLST)

2021 Utah Laws Ch. 223 (S.B. 83). Approved March 16, 2021. Effective May 5, 2021. The bill amends provisions relating to POLST orders.

Under prior law, the Health Care Directives Act included special provisions for a “Life with dignity order,” defined as an order, designated by the Department of Health under Section 75-2a-106(5)(a), that gives direction to health care providers, health care facilities, and emergency medical services providers regarding the specific health care decisions of the person to whom the order relates. Under amended Section 75-2a-103, the name of this definition has been changed to “POLST order” with provisions clarifying it as a medical order in contrast to an “advance health care directive.” An advance health care directive  is defined as

(i) A designation of an agent to make health care decisions for an adult when the adult cannot make or communicate health care decisions; or

(ii) An expression of preferences about health care decisions.

Related definitions were updated to account for the renaming in Sections 75-2a-103 and -106.

The Act added an additional provision, amending Section 75-2a-106. The provision states that the provisions of Title 46, Chapter 4, Uniform Electronic Transactions Act, apply to any signature required on the POLST order, and a verbal confirmation satisfies the requirement for a signature if requiring the individual to sign the POLST order in person or electronically would require significant difficulty or expense. A licensed health care provider witnesses the verbal confirmation and signs the POLST order attesting that the health care provider witnessed the verbal confirmation.

In addition, the health care provider described above may not be the same individual who signs the POLST order under Subsection (3)(a), and shall verify, in accordance with HIPAA as defined in Section 26-18-17, the identity of the individual who is providing the verbal confirmation.

Vermont

(AD)

2021 Vermont Laws No. 6 (S. 117). Approved March 29, 2021. Effective March 29, 2021. This Act extends the previously enacted regulatory flexibility that began June 15, 2020 during the COVID-19 pandemic an additional year, to June 30, 2022, under which multiple telehealth and health care regulations were eased, including recognizing the validity of advance directives even if the principal signed the advance directive outside the physical presence of one or both of the required witnesses, as long as:

(A) The principal and the remote witness were known to each other;

(B) The remote witness was informed about the role of a witness to the execution of an advance directive; and

(C) The principal included on the advance directive the name and contact information for the witness.

The Act also extends to June 30, 2022 an accommodation that deems valid an advance directive executed while the principal was being admitted to or was a resident of a nursing home or residential care facility or was being admitted to or was a patient in a hospital if the individual who explained the nature and effect of the advance directive was not physically present in the same location as the principal, provided that the individual delivering the explanation was communicating with the principal by video or telephone.

Virginia

(AD)

2020 Virginia Laws Ch. 231 (S.B. 544). Approved March 10, 2020. Effective July 1, 2020. An Act to amend and reenact Section 54.1-2983.2 of the Code of Virginia.

This Act adds “licensed physician assistant” to the list of health professionals in Section 54.1-2983.2 who are authorized to make a determination that a person is incapable of making an informed decision regarding admission to a facility for mental health treatment for purposes of activating an agent’s authority under the person’s advance directive. The other professionals authorized under prior law are the attending physician, a psychiatrist or licensed clinical psychologist, a licensed psychiatric nurse practitioner, a licensed clinical social worker, or a designee of the local community services board.

Washington

(AD)

2020 Wash. Legis. Serv. Ch. 312 (S.S.B. 6287). Approved April 2, 2020. Effective January 1, 2022, except for certain sections not related to health decisions have different effective dates.

This Act is a substantial amendment to the state’s guardianship and conservatorship law, but it includes a minor change at Section 11.125.080 addressing the accountability of a agent under a power of attorney for financial management and for health care decision-making. An agent’s authority still continues when a guardian or conservator is appointed unless removed or limited by the court. However, the amended language states that “the agent is accountable to the fiduciary as well as to the principal.”

West Virginia

(AD)

2020 West Virginia Laws Ch. 263 (S.B. 664). Approved March 25, 2020. Effective June 4, 2020. An Act to amend and reenact Section 16-30-7 of the Code of West Virginia, 1931.

The amendment to the state’s Health Decisions Act amends Section 16-30-7 regarding determinations of incapacity, adding “physician assistant” to the list of medical professionals able to determine if an individual lacks capacity, and updating the terminology of “advanced nurse practitioner” to read “advanced practice registered nurse.”

Wisconsin

(AD)

2019-2020 Wisc. Legis. Serv. Act 90 (2019 A.B. 287). Approved February 5, 2020. Effective February 7, 2020.

The Act addresses a regulatory bottleneck in Wisconsin’s health care workforce that resulted in unnecessary delays in acting upon a patient’s advance directive wishes for treatment. The new law helps address these delays by recognizing the education and training of nurse practitioners and physician assistants to make the medical diagnosis of incapacity necessary to activate the patient’s written medical wishes, as well as diagnoses of terminal condition and persistent vegetative state. Under the law, a physician must still confirm the diagnosis; a patient retains the option of requiring two physicians to complete any needed assessments.

The Act also allows an attending physician assistant or attending advanced practice registered nurse to issue do-not-resuscitate orders. Prior law allowed only attending physicians to issue do-not-resuscitate orders.

2021-2022 Wisc. Legis. Serv. Act 23 (2021 A.B. 125). Approved March 26, 2021. Effective March 28, 2021. An Act relating to regulation of physician assistants.

This Act significantly updates laws related to the licensure, regulation and the practice of physician assistants (“PAs”) in Wisconsin. The regulatory changes aim to improve access to quality medical services for Wisconsin patients by reducing barriers for PAs to provide services. The updated laws do not create an independent practice for PAs but, among other modifications, change the physician/PA relationship from supervision to collaboration and eliminate the one physician to four PAs ratio requirement. Their expanded role is reflected in the additional authorities PAs are given in the act noted immediately above, 2019-2020 Wisc. Legis. Serv. Act 90.