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AB-1234 Physician Orders for Life Sustaining Treatment forms: registry.(2021-2022)

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Date Published: 02/19/2021 09:00 PM
AB1234:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1234


Introduced by Assembly Member Arambula

February 19, 2021


An act to amend Section 4673 of, to add Section 4780.5 to, and to add Part 6 (commencing with Section 4810) to Division 4.7 of, the Probate Code, relating to health care decisions.


LEGISLATIVE COUNSEL'S DIGEST


AB 1234, as introduced, Arambula. Physician Orders for Life Sustaining Treatment forms: registry.
Existing law establishes the Advance Health Care Directive Registry allowing individuals to register a written advance health care directive with the Secretary of State. The information in the registry is accessible by specified entities, upon request. Under existing law, an electronic health care directive or power of attorney for health care is legally sufficient if it contains the date of its execution, is signed by either the patient or in the patient’s name by another adult in the patient’s presence and at the patient’s direction, and is either acknowledged before a notary public or signed by at least 2 witnesses who satisfy specified requirements. Under existing law, the signatures required can be by a digital signature, as defined.
Existing law defines a request regarding resuscitative measures as a written document, signed by an individual with capacity, or a legally recognized health care decisionmaker, and the individual’s physician, directing a health care provider regarding resuscitative measures. Existing law defines a Physician Orders for Life Sustaining Treatment form, which is commonly referred to as a POLST form, and provides that a request regarding resuscitative measures includes a POLST form. Existing law requires that a POLST form and the medical intervention and procedures offered by the form be explained by a health care provider. Existing law distinguishes a request regarding resuscitative measures from an advance health care directive.
This bill would allow an electronic signature to be used for the purposes of an advance health care directive and POLST form.
The bill would enact the California POLST eRegistry Act, which would require the California Health and Human Services Agency to create a statewide electronic POLST registry system for the purpose of collecting a patient’s POLST information received from a health care provider or the provider’s designee and disseminating the information therein to an authorized user, as defined. The bill would require the agency to promulgate regulations necessary for the operation of the POLST eRegistry, as specified, and set timelines for implementation. The bill would allow an electronic representation of a POLST form and the electronic communication of the information contained in a POLST form to have the same legal standing as a paper hardcopy of a POLST form.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Amid the COVID-19 pandemic, the threat of a sudden serious illness and potential hospitalization has dramatically increased for millions of Californians. Health care experts and consumer advocates are encouraging consumers, their families, and health care providers to plan ahead and discuss treatment goals for both COVID-19 and non-COVID-19 related serious illness. Nine in 10 Californians surveyed by the California Health Care Foundation (of all races, ethnicities, and income levels) have said they want as much information as possible about their serious illness care.
(b) Conversations around serious illness and the completion of documents such as advance health care directives (AHCDs) and Physician Orders for Life Sustaining Treatment (POLST) can help prepare consumers and families for medical decisions across a range of settings (hospitals, nursing facilities, and home) during this time of crisis.
(c) An AHCD is a legal document used to share an individual’s values, goals, and wishes regarding treatment in the case of serious illness. It can also be used to designate another person (an agent) that the individual trusts to make medical decisions on the individual’s behalf. To be valid, an AHCD requires the individual’s signature and the signature of two qualified witnesses. If the individual resides in a skilled nursing facility, California also requires the signature of the facility’s patient advocate or ombudsman.
(d) POLST is a medical order signed by both a patient or their decisionmaker and a physician, nurse practitioner, or physician assistant that specifies the types of medical treatment the patient wishes to receive toward the end of life. It is designed for people who are already seriously ill or nearing the end of life. The completed POLST form (usually printed on bright pink paper) travels with the patient between health care settings. In recent years, options for electronic POLST form completion have been developed and POLST registries for the storage and retrieval of POLST forms have been piloted, but neither option is currently available statewide.
(e) These advance care planning documents and the conversations around them help ensure that the patient’s voice is not lost, provide important information to health care providers about the patient’s treatment goals, particularly if certain care is unwanted, provide comfort to surrogate decisionmakers who can know they are accurately representing the patient’s wishes, and enable parents to ensure their children can be taken care of by others according to their instructions if the parents are hospitalized or in mandated isolation.
(f) While COVID-19 creates urgency around having these conversations, it also creates logistical challenges for consumers and clinicians working to create or update AHCDs or POLSTs. Social distancing and telehealth make it harder for clinicians to obtain patient signatures on such forms, and make it harder for consumers to obtain signatures from witnesses or notaries, or to receive help completing forms. Very sick patients who are most in need of assistance with care planning are also those for whom these challenges are the most burdensome.

SEC. 2.

 Section 4673 of the Probate Code is amended to read:

4673.
 (a) A written advance health care directive is legally sufficient if all of the following requirements are satisfied:
(1) The advance directive contains the date of its execution.
(2) The advance directive is signed either by the patient or in the patient’s name by another adult in the patient’s presence and at the patient’s direction.
(3) The advance directive is either acknowledged before a notary public or signed by at least two witnesses who satisfy the requirements of Sections 4674 and 4675.

(b)An electronic advance health care directive or power of attorney for health care is legally sufficient if the requirements in subdivision (a) are satisfied, except that for the purposes of paragraph (3) of subdivision (a), an acknowledgment before a notary public shall be required, and if a digital signature is used, it meets all of the following requirements:

(1)The digital signature either meets the requirements of Section 16.5 of the Government Code and Chapter 10 (commencing with Section 22000) of Division 7 of Title 2 of the California Code of Regulations or the digital signature uses an algorithm approved by the National Institute of Standards and Technology.

(2)The digital signature is unique to the person using it.

(3)The digital signature is capable of verification.

(4)The digital signature is under the sole control of the person using it.

(5)The digital signature is linked to data in such a manner that if the data are changed, the digital signature is invalidated.

(6)The digital signature persists with the document and not by association in separate files.

(7)The digital signature is bound to a digital certificate.

(b) An electronic signature, as defined in subdivision (h) of Section 1633.2 of the Civil Code, shall be sufficient for any signature required pursuant to subdivision (a).

SEC. 3.

 Section 4780.5 is added to the Probate Code, to read:

4780.5.
 (a) For purposes of this part, an electronic representation of a Physician Orders for Life Sustaining Treatment form, and electronic communication of the information contained in a Physician Orders for Life Sustaining Treatment form shall have the same legal standing as a paper hardcopy of a Physician Orders for Life Sustaining Treatment form.
(b) An electronic signature, as defined in subdivision (h) of Section 1633.2 of the Civil Code, shall be sufficient for any signature required for a POLST form.

SEC. 4.

 Part 6 (commencing with Section 4810) is added to Division 4.7 of the Probate Code, to read:

PART 6. REGISTRY OF PHYSICIAN ORDERS FOR LIFE SUSTAINING TREATMENT FORMS

4810.
 This part shall be known, and may be cited, as the California POLST eRegistry Act.

4811.
 For purposes of this part, the following definitions apply:
(a) “Authorized user” means a person authorized by the authority to submit information to, or to receive information from, the POLST eRegistry, including health care providers, as defined in Section 4781, and their designees.
(b) “POLST” means a Physician Orders for Life Sustaining Treatment form that fulfills the requirements, in any format, of Section 4780.
(c) “POLST eRegistry” means the registry established pursuant to this part to make electronic, in addition to other modes of submission and transmission, POLST information available to authorized users.

4812.
 (a) The California Health and Human Services Agency shall establish a POLST eRegistry, in consultation with stakeholders, to operate a statewide electronic registry system for the purpose of collecting a patient’s POLST information received from a physician, nurse practitioner, physician assistant, or the designee of a physician, nurse practitioner, or physician assistant, and disseminating the information to an authorized user.
(b) The agency shall adopt regulations for the operation of the POLST eRegistry in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), and shall hold at least one public hearing regarding the proposed regulations. The regulations shall include, but not be limited to, standards and procedures regarding all of the following:
(1) The means by which initial or subsequent POLST information may be submitted to the POLST eRegistry, which shall include a method for electronic delivery of this information and the use of legally sufficient electronic signatures. Submitted information may include new, modified, updated, or voided POLST information.
(2) Appropriate and timely methods by which the information in the POLST eRegistry may be disseminated to an authorized user, including a method for electronic access.
(3) Standards and procedures for verifying the identity of an authorized user.
(4) Standards and procedures to ensure the accuracy of, and to appropriately protect the confidentiality of, POLST information submitted to the POLST eRegistry.
(c) The agency shall set the following deadlines for implementation of the POLST eRegistry:
(1) Commencing January 1, 2024, an authorized user shall ensure that the most current version of all POLST forms they have signed have been submitted to the POLST eRegistry.
(2) Commencing on January 1, 2025, an electronic version of a POLST shall be the only acceptable format to submit a form to the POLST eRegistry. This section does not prohibit an authorized user from printing out a paper copy of a POLST form for a patient to have on hand, upon request by a patient or the patient’s legally recognized decisionmaker.
(3) On or before January 1, 2026, the agency shall incorporate the Advance Health Care Directive Registry, established pursuant to Part 5 (commencing with Section 4800), into the POLST eRegistry.