(Note: The pdf for the issue in which this article appears is available for download: BIFOCAL Vol. 35, Issue 3.)
The American Bar Association's Commission on Law and Aging collaborated with the National POLST Paradigm Task Force (NPPTF) and a team of legal experts to produce the POLST Legislative Guide, a free publication released in February 2014, for states engaged in the development of Physician Orders for Life-Sustaining Treatment (POLST) programs. It can be downloaded from the website of the NPPTF at: http://www.polst.org/educational-resources/legal-and-policy.
POLST programs are known by a variety of names, including Medical Orders for Life-Sustaining Treatment (MOLST), Provider Order for Scope of Treatment (POST), and others. These programs all involve a common clinical process designed to facilitate communication between health care professionals and patients with serious illness or frailty (or their authorized surrogate).
The process is intended to encourage shared, informed medical decision-making. It results in a set of portable medical orders that respects the patient’s goals for care in regard to the use of cardiopulmonary resuscitation (CPR) and other medical interventions, is applicable across health care settings, and can be reviewed and revised as needed.
Integrating POLST into state health systems in light of state laws, regulations, and accepted practices has generated a range of legal/regulatory questions that have been answered in a variety of ways by states—by clinical consensus, by legislation or regulation, and by guidance. Drawing upon the experience of the states that have implemented POLST Paradigm by 2013, the legislative team produced the POLST Legislative Guide which NPPTF hopes will facilitate a better understanding of the issues, options available, and best practices.
The Guide is organized around 12 legal/regulatory questions and issues that have been most recurrent across the states implementing POLST Programs. It suggests a preferred outcome to each issue, based upon the collective learned experience of states with POLST Programs endorsed by the NPPTF. The Guide provides a description and analysis of each issue—and sub-issues where indicated—and offers options to guide response strategies that may range from clinical practice consensus to legislation.
The NPPTF has not attempted to provide a model POLST act because experience to date has demonstrated that the frameworks and complexities of each state’s existing state health care decisions laws are unique. Every legislative approach requires substantial customization to work within any particular state. It is expected that any of the options described here will need some degree of adjustment to fit with or modify state law.
The National POLST Paradigm Task Force is comprised of one representative chosen by each state that has an endorsed program and includes legal and emergency medical service consultants.
Commission Director Charlie Sabatino serves as a legal consultant to the Task Force.
See the NPPTF webpage at www.POLST.org.
The issues addressed in the legislative guide are set forth in its Table of Contents as follows:
Issue 1: What is the definition of POLST?
- Is POLST Another Form of Advance Directive?
Issue 2: Is Legislation Needed to Establish POLST?
- When is Legislation Needed?
Issue 3: Who should have a POLST Form?
- Should specific medical preconditions in state advance directive laws be required for POLST?
- Should medical preconditions in state out-of-hospital DNR order statutes be applied to POLST?
Issue 4: Who has responsibility for the language of a state’s POLST form?
- Must one uniform POLST form be used throughout the state?
- Should we include the POLST form within a statute?
- What is the most successful method for creating a uniform process and POLST form?
Issue 5: Which health care professionals can execute a POLST form?
- How should scope of practice regulatory issues be handled with respect to authority to execute POLST?
- Can POLST counseling and preparation be delegated in part to health care professionals not authorized to sign a POLST?
Issue 6: How should patient preference be elicited and documented on a POLST form?
- Is a patient or surrogate signature or attestation necessary on a POLST?
Issue 7: What authority should surrogates have?
- Surrogates cannot sign an advance directive. Why should they sign a POLST?
- If a patient agreed to a particular care plan set forth in POLST, should a surrogate be allowed to change the plan later when the patient no longer has decisional capacity?
Issue 8: Is offering and completion of a POLST mandatory?
- Should every nursing home resident be deemed within the appropriate group to whom POLST is offered?
- Is completion of POLST mandatory?
Issue 9: Is health care professional compliance with POLST mandatory?
- Is compliance with POLST required or prohibited in the emergency department or at hospital admission when the prescribing health care professional is not credentialed at the receiving hospital?
- When is POLST review and possible modification necessary or advisable?
Issue 10: Does POLST raise liability or immunity concerns?
- Is legislative immunity preferable, analogizing to advance directives?
- Can health care professionals presume validity of a POLST form presented to them?
Issue 11: Administration, monitoring, and evaluation—what infrastructure and process should be in place for POLST Programs?
- What is an appropriate administrative structure needed to establish a POLST Program?
- How do we best evaluate whether the POLST Program is genuinely determining patients’ values, priorities, and goals of care and translating them into accurate orders?
Issue 12: Are POLST forms portable across jurisdictions?
- What is the source of authority for recognition across jurisdictions and applicability of immunity?
- Where there is variation of substantive POLST provisions or health decisions laws, which law applies (originating state or receiving state)?