October 01, 2014

POLST Legislative Comparison and Update

Kelly Richardson

(Note: The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 36, Issue 1.)

 

All too often the end of life care wishes of a person in good health differ drastically from those facing a terminal illness. POLST (Physician Ordered Life-Sustaining Treatment) is a highly effective option for conveying the fluidity of one’s end of life care wishes and goals for persons with advanced, progressive illness. The essence of POLST is to translate patients’ goals for end-of-life care in to medical orders that are placed into the patients’ medical records, which is tremendously beneficial.

Advance directives and living wills are necessary legal instruments to convey a person’s wishes in case of illness. POLST is medical instrument that should be used in conjunction with advance care directives and living wills to supplement a patient’s end-of-life care wishes. Although the process varies from jurisdiction to jurisdiction, patients must have a candid and honest conversation with their physician. The fruits of that discussion become a set of medical orders that are then placed into the patients’ medical record. POLST forms are typically revisited whenever the patient’s condition, site of care, or wishes change. POLST program participants have the unique ability to have their most recent wishes elicited, recognized, and honored.

In 2014, two new states—Connecticut and Mississippi—joined twenty other states in codifying regulation of a clinical program based on the POLST paradigm. In Connecticut, MOLST (Medical Orders for Life Sustaining Treatment) allows physicians, advanced practice registered nurses, and physician assistants to sign the MOLST form. In Mississippi, only physicians can sign POST (Physician Orders for Sustaining Treatment) forms. In both states, the patient or the patient’s authorized surrogate must sign the form.

Connecticut MOLST Summary

Connecticut enacted legislation (2014 Conn. Legis. Serv. P.A. No. 14-231) that established a two-year pilot program in two locations, one rural and one urban. As in other states, participation in the MOLST program is voluntary. Notably, the statute explicitly limits the use of the form to only to individuals who are approaching the end stage of a serious, life-limiting illness or is in a condition of advance, chronic progressive illness.

Medical staff participating in the MOLST program must attend training courses, and clinicians signing MOLST forms must also receive training; this is a mandate missing in most states. The training includes recognizing the significance of discussing with a patient’s personal treatment goals as well as methods for the unbiased outlining of choices for end-of-life care to elicit patient preferences. Additionally, the MOLST program requires that a copy of the form be given to patients and to their surrogates.

The legislature purposefully created a broad statute that defers the details of the form and protocol to the health department, with the assistance of an advisory committee consisting of an array of medical professionals. Participation in the pilot program is voluntary for patients and health care providers. MOLST is transferrable among, and recognized by, various types of health care institutions creating some flexibility for patients, incentivizing their participation. Conversely, the statute does not address provider immunity, which could disincentivize provider participation.

Mississippi POST Summary

Mississippi enacted legislation (Miss. Code. Ann. §§ 41 -41 -302 – 303 (2014)) that governs the Physician Orders for Sustaining Treatment (POST) program. The legislation allows emancipated minors, guardians of minors, and adults alike to participate in the program. The legislature specified in unusually great detail the language and elements of the form and procedures. The State Board of Medical Licensure is responsible for creating and approving POST forms. By law, the Board must consult with various professional and advocacy organizations in developing the POST form, including the Mississippi Hospital Association and others.

While there is provider immunity for completing and honoring POST, it does not require that a provider participate in the program stipulating that a provider must not impede the transfer of a patient to another provider or facility willing to implement an order. This statutory limitation could present an unforeseen problem in practice as it applies to enforcing the program.
According to the National POLST Paradigm website at www.POLST.org, twenty-nine states, including Florida, Arizona, and North Dakota are developing programs based on the POSLT paradigm. POLST and other similar programs provide the opportunity for providers to communicate with patients and to clarify their treatment goals and wishes. It is truly a unique opportunity for patients to remain in control of their end-of-life care wishes.

For more information, please download the updated POLST chart from the Commission's Medical Decision-Making Resources page. ■

Kelly Richardson

Kelly Richardson is a second-year law student at American University Washington College of Law in Washington, D.C. She is currently an intern at the Commission, researching the statutory implementation of Physician Orders for Life Sustaining Treatment (POLST) programs nationwide.