NEWSLETTER. Volume Eleven Number Eight August 2015

Transcription

1 NEWSLETTER Volume Eleven Number Eight August 2015 Use of a Foreign POLST? Not on My Watch! One of the more innovative approaches for end-of-life decision-making is a POLST. Rather than relying solely on a patient s signed advance directives that express his or her wishes or directions for surrogate decision-makers, a POLST is a medical order. Indeed, the acronym stands for Physician Orders for Life Sustaining Treatment. 1 POLST, or end-of-life medical orders are not crafted in isolation. Instead, the medical order is based on an important discussion among the physician, patient, and when possible, interested family members. As with any other medical order, a POLST can be updated or modified as needed to better suit the needs of a patient. Moreover, the POLST can be used in conjunction with the advance directive documents signed by the individual while he or she had the legal capacity and mental ability to do so. POLST legislation 2 or regulations 3 are in place in many states. Depending on the jurisdiction, various acronyms are used to describe the orders including, MOST, LaPOLST, MOLST and POLST. 4 Moreover, the content of the legislation and regulation does vary among the states with laws on the subject. Whether or not a signature is required from the patient or a surrogate depends on state law. Some may require a patient s signed consent; 5 others may authorize a surrogate to execute a POLST. 6 According to the POLST National Paradigm, an organization focused on physician orders for life-sustaining treatment, the intent is to use such documents for seriously ill patients and those who are frail. Moreover, their care providers would not be surprised if they died within a year. 7 RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 1

2 Although many state laws now incorporate POLST as part of the fabric of their end-of-life healthcare policy, there are many practical considerations to consider with regard to such medical orders. For example, what if the attending physician is someone other than the physician who issued the POLST order? Do they have to obligatorily follow the written order, especially when there is reason to believe that the frail individual has changed his mind? What if the care provider believes that the order is too broad in nature and does not seem warranted in the circumstances? There are also practical considerations. If the doctor who issued the order is not a credentialed member of the medical staff of the acute care hospital, critical access hospital or long term care facility, should the attending care provider follow the POLST? What if the ordering physician is in another state and the patient presents with what may be described as a foreign POLST? These questions are more than a matter of mere speculation. Seriously ill and frail patients do travel. Indeed, knowing that they are so ill, they may decide to travel to visit friends and family members one last time. Unfortunately, serious illnesses may occur necessitating hospital care out-of-state. Will the POLST be recognized? Should the attending care provider follow it? A hypothetical case highlights some of the concerns surrounding foreign POLSTs. Practical strategies for cogent discussion and documentation demonstrate how a healthcare organization and professional can address such concerns. The POLST Case Example. Chuck Moyes, a 78 year-old retired salesman, was diagnosed with COPD, congestive heart failure, and emphysema. Mr. Moyes was being treated by Dr. Royal, a specialist in internal medicine and pulmonology. Although Mr. Moyes had been relatively stable for a few years, it was becoming clear that his condition was deteriorating. Mr. Moyes, you have always insisted that I tell you how I see it. But on this occasion I think you know far better than me that your condition is worsening. It is becoming increasingly difficult to control your emphysema. And, as you have told me yourself, you are feeling frail, said Dr. Royal. I know that you do not have a crystal ball, but how long do I have Dr. Royal? RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 2

3 Please be honest with me, said Mr. Moyes. My ballpark estimate is 6 months, maybe as much as 9 months. If you develop another bad respiratory infection it could be sooner. I do not think your heart can take as much stress as it did during the last episode five weeks ago, said Dr. Royal. I want to see my grandkids and great-grandchildren. Am I fit to travel to see them or am I stuck here? asked Mr. Moyes. You can travel, but you will need your oxygen and medication. I know you prefer traveling by car, so you will need to stop often to stretch your legs and take precautions against blood clots forming in your legs. I presume that your son Arnold will be your driver, said Dr. Royal. Yes. These are his kids and grandchildren. Besides, it will give us some alone time to discuss some matters we have never talked about in the last few years, said Mr. Moyes. That sounds good to me, Mr. Moyes, said Dr. Royal. He continued, But there is one other item I want to discuss with you. I do this with all my patients facing very serious health problems so please do not think I am singling you out. I want to encourage you to have all your affairs in order. There may come a time when you are unable to make decisions for yourself, especially healthcare decisions. I know you gave me a copy of your advance directive 3 years ago. Is it still current? Is there anything in it that you want to change? Now is the time to do so. And, would you like me to write a physician order for life-saving treatment? It is known as a POLST for short. What does a POLST do for me, Dr. Royal? asked Mr. Moyes. Doctor Royal explained that a POLST is a medical order, a treatment order. It can be written to meet your wishes regarding end-life care as long as the content is consistent with state law. It does not replace your advance directives. In our state it does not cover treatment provided by EMTs. It just addresses treatment in hospital settings and long term care facilities. If you would like to do so, we can have Arnold join us to discuss it. I think that is a good idea since he is your designated surrogate decision-maker. Based on your preferences, I can write up a POLST for you to review. If you agree with the content, I will sign it and you will RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 3

4 as well. I will keep a copy here and I will make certain that both you and Arnold each have a copy, said Dr. Royal. Mr. Moyes said, Yes, I would like that Dr. Royal. The POLST content made it clear that only palliative measures should be administered if Mr. Moyes developed severe respiratory or congestive heart failure. Consistent with the patient s advance directive, the POLST specifically excluded orders for intubation or aggressive measures to sustain cardiac function in the presence of terminal congestive heart failure. As Mr. Moyes and his son were leaving the office, Dr. Royal said, I hope you have a good trip to together. Do it soon. Just follow the strategies we discussed to keep you out of difficulty. And Arnold, if your father develops serious health issues, make certain that you give the POLST and advance directive forms to the care givers. On the way back from a great visit with his grandchildren and greatgrandchildren, Mr. Moyes became ill. I must have caught a cold from the little one who was coughing and sneezing, he said to his son. Later that day, when he had labored breathing Mr. Moyes said, I think you had better get me to a hospital. This is more than a cold, Arnold. Mr. Moyes was seen by an emergency physician who made a diagnosis of acute congestive heart failure and a deep vein thrombosis in the left leg. A decision was made to admit Mr. Moyes to the hospital s ICU. Although weak and quite frail, Mr. Moyes spoke with the attending intensivist, Dr. Tobert. Doctor, my son Arnold has my advance directive. He also has a POLST that my internist wrote up for me. My son is also the guy who I have designated to make healthcare decisions for me when I cannot do so. I hope that this information will be helpful to you, said Mr. Moyes. I hate to disappoint you sir, but I will not recognize a POLST from a doctor who is not licensed to practice in this state and who is not on our medical staff. I write my own medical orders. No problem about your advance directive. I will review it and if I have any questions about your wishes, I will discuss it with you or your son, said Dr. Tobert. RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 4

5 Why did I go to the bother to have Dr. Royal write that POLST if you cannot use it? It does not make sense to me, said Mr. Moyes. Dr. Tobert said, I think that is an issue you will have to discuss with him. For now, I do not think this bout of congestive heart failure is a terminal event. I will honor your request not to intubate you should such a need arise and yes, if your situation warrants it, I will issue palliative care orders for you. After a five day stay in the hospital, Mr. Moyes was well enough to return to his home state. He saw Dr. Royal the next day and told him what had happened with the POLST form. You know, it just does not make sense to me why that intensivist would not honor your medical orders. He made me very annoyed, said Mr. Moyes. Observation on the POLST Case Example. Some may be quite surprised by the reaction of the intensivist. Others would readily agree with the intensivist. An explanation is in order. No doubt many states now have one version or another of POLST laws and regulations. Unlike advanced directives written in accordance with state law, POLSTs are medical treatment orders. Advance directives provide individuals with a mechanism to articulate preferences for end-of-life care, including who he or she wants to act as a surrogate decision-maker. Many advance directives go further, providing the individual with a way in which to convey information that can be useful for the surrogate in making decisions about initiation or withdrawal of care. Some state end-of-life laws include POLST. For example, in Idaho, a POLST is deemed to meet the requirements of "Do Not Resuscitate (DNR)" orders at all Idaho health care facilities. Health care providers and emergency medical services personnel shall not require the completion of other forms in order for the person's wishes to be respected. 8 As Dr. Tobert indicated, she would issue her own treatment orders for Mr. Moyes, taking into consideration the POLST signed by his physician back home. Such a practice is also consistent with the Idaho law: (3) Nothing in this chapter is intended to nor shall it prevent physicians or RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 5

6 other health care providers from executing or utilizing DNR orders consistent with their licensure; provided however, that if the person or person's surrogate decision maker chooses to utilize the POST form, the health care provider shall accept and comply with the POST form and shall not require the completion of a DNR order in addition to a valid POST form. 9 [Emphasis added] Not every state follows the Idaho approach. Indeed, even the very language of the Idaho Code points to a pivotal consideration: the doctor executing or utilizing DNR orders consistent with their licensure. 10 In the case example, Dr. Royal, the physician who issued the POLST, was not licensed to practice in the state in which Mr. Moyes was receiving treatment. And, he was not on the medical staff of the hospital where Mr. Moyes was receiving inpatient care. Is there a risk exposure if a hospital or intensivist accedes to out-of-state or foreign POLST orders? Stated differently, are POLSTs portable across state lines? From a Federal law perspective the answer can be found in the Conditions of Participation for Hospitals in Medicare and Medicaid. The regulation provides that: (2) All orders, including verbal orders, must be dated, timed, and authenticated promptly by the ordering practitioner or by another practitioner who is responsible for the care of the patient only if such a practitioner is acting in accordance with State law, including scope-ofpractice laws, hospital policies, and medical staff bylaws, rules, and regulations. 11 The Interpretive Guidelines for the Hospital Conditions of Participation reinforce who may issue medical orders for patients: Interpretive Guidelines (a) The hospital s governing body has the responsibility, consistent with State law, including scope-of-practice laws, to determine which types/categories of physicians and, if it so chooses, non-physician practitioners or other licensed healthcare professionals (collectively referred to in this guidance as practitioners ) may be privileged to provide care to hospital patients. All practitioners who require privileges in order to furnish care to hospital RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 6

7 patients must be evaluated under the hospital s medical staff privileging system before the hospital s governing body may grant them privileges. All practitioners granted medical staff privileges must function under the bylaws, regulations and rules of the hospital s medical staff. The privileges granted to an individual practitioner must be consistent with State scopeof-practice laws. 12 The National POLST Paradigm Task Force disagrees with those who interpret federal requirements as necessitating that the care provider who signs the POLST must have admitting privileges at the hospital where the patient is receiving treatment. 13 However, during a recent webinar the federal position was reiterated by the presenter. 14 Some states seem to have anticipated the issue of the non-credentialed provider signing the POLST. The Idaho statute discussed earlier incorporates the POLST order into a legislative provision dealing with end-of-life decision-making. The statute makes it clear that the POLST is deemed to meet the requirements of Do Not Resuscitate (DNR) orders at all Idaho health care facilities. 15 No doubt the admitting privileges requirement can be a major drawback in the use of POLST orders in states that do not take the same legislative perspective as that seen in Idaho. Potential long-term solutions include a change in the purported federal admitting privileges requirement or a uniform state law that takes the same position. 16 For now, POLST orders should not be encumbered when the care provider signing the document has admitted privileges at the healthcare entity in which the patient is receiving treatment. The same cannot be said for foreign POLST orders issued by out-of-state care providers or local physicians who do not possess admitting privileges. One can appreciate the difficulties facing the hospitalist or intensivist. What should the attending care provider do without legislation authorizing them to act on the POLST issued by an out-of-state physician or a care provider without admitting privileges? It is understandable that attending care providers are concerned about potential liability or professional disciplinary exposure with regard to foreign POLSTs. In some instances they could be at risk for claims based on unauthorized treatment, battery, and also, disciplinary proceedings before a state board for unprofessional conduct. The best solution may be a RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 7

8 legislative change. Until that level of relief can be obtained, care providers should proceed carefully, complying with applicable law on POLST orders. At the same time, care provider education and patient expectation-setting will help in developing a patient-centric approach to end-of-life planning. Strategies for Managing Foreign POLTs. 1. Determine State Law Recognition of POLST Documents. Confer with legal counsel to identify when POLST documents are recognized under state legislation and regulations. Consider locations and use, including acute care, long-term care and community-based settings as well as application by EMS. Develop a chart with this information for inclusion in an organizational POLST policy and procedure. 2. Work with Administrative and Health Professional Leadership on a POLST Policy and Procedure. Collaborate with those in management and healthcare leadership to craft a POLST policy and procedure that is applicable throughout the organization. Recognize that in integrated health care organizations, the policy procedure should encompass the emergency department, medicalsurgical units, ICU, home health, and hospice. 3. Work with IT on Process for Accessing POLST Information. Discuss with IT what measures are necessary for either accessing POLSTs that are available in an HIE or stored in an online repository. Consider too, the process for uploading POLST documents that are presented in hard copy format, making certain that the information is placed under the user tab for advance directive and patient rights data. 4. Set Expectations By Discussing POLST Options with Patients and Surrogates. Follow the example of Dr. Royal in the Chuck Moyes case by encouraging the participation of a family member or support person when discussing the content of the POLST document. Obtain patient permission for inclusion of a family member or support person in such a discussion. Use the opportunity to set expectations about end-of-life decision-making and how to use the POLST in conjunction with advance directives executed by the patient. Document in the medical record that the discussion took RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 8

9 place, when, and who participated and include a summary of the outcome of the meeting. 5. Provide Orientation and In-Service Education on POLST orders. Offer focused, succinct education for all care providers and health care staff on POLST orders. Emphasize how POLST orders relate to other advance directive documents. Conduct on a regular basis in-service programs to highlight various aspects of the POLST process. 6. Identify a Resource to Assist with Unusual Situations that Involve POLSTs. Anticipate that situations may occur in which there is a question about the application of POLST orders or use of POLST documents in conjunction with advance directives. Recognize too, that disagreements may arise involving surrogate decision makers and attending care providers with respect to POLST orders. Designate contact persons to assist in such situations. Make certain that there at least one individual is available on each shift in the organization and that he or she has received training on such matters. Conclusion. POLST orders can serve as useful tools in the quiver of end-of-life decisionmaking documents and processes. Notwithstanding the fact that many states have taken the initiative to enact POLST laws and regulations, there are a number of practical challenges that need to be resolved to make such documents more useful in end-of-life situations. In an ideal world, the National Conference of Commissioners on Uniform State Laws 17 would develop a standardize legislative format for POLSTs. Although the name for the orders may vary from state-to-state, the goal would be to design a framework that would be recognized in each state, thereby creating some interstate commonality like that found with advance directive laws. Indeed, the Idaho POLST, incorporated into the state advance directive legislation is a good example of what could be accomplished for this purpose. The remaining issue involves the POLST physician who does not possess privileges at the hospital to write medical orders for the patient. This situation can take place in the state in which the POLST physician is in practice hold privileges at the hospital where his patient is receiving care. The scenario can occur across RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 9

10 state lines. In either instance, the POLST is an order that is foreign to the hospital where treatment is being provided to a patient. The attending care provider has some options to consider. She may review, agree with, and enter the information from the foreign POLST as her medical orders for the patient. She may also decide to discuss the background for the end-of-life orders with the care provider who signed the document. In other situations, the attending provider may have questions about the applicability of the POLST order to the clinical presentation of the patient. In other words, the POLST may not fit the current medical acuity of the patient. At the very least, the POLST may provide useful information which, when read in conjunction an advance directive, may prove invaluable in crafting an appropriate treatment plan for a seriously ill, frail person in whose demise is anticipated within a year. A practical option aside, the challenges to using POLST orders demonstrates the need for a national public policy discussion on the topic. How much more legislation and regulation will be needed to facilitate end-of-life discussion and decision-making? Could a federal law resolve the uncertainty whether or not to honor a POLST signed by a physician who practices in the community but who does not hospital privileges? The shear size of the Baby Boomer generation rapidly becoming Medicare beneficiaries may well be the tipping point to achieve an appropriate response. If you would like assistance in developing an enterprise risk management program or tools, please contact The Rozovsky Group, Inc at or (860) For details about POLST, See, 2 See, eg. Miss. Code Ann (2014); Ind. Code Ann (2013); N.J.S.A. 26:2H 129 thru 140 (2011); and NY Pub. Health Law PHL 2994-dd(6) (2010). RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 10

11 3 See, e.g., La. Admin Code. tit. 48, pt. I, 201 thru 211 (Eff. June 2011) and R.I. Rules and Regulations Pertaining to Medical Orders for Life-sustaining Treatment, R MOLST. September 2013, accessed at: 4 MOST refers to Medical Orders for Scope of Treatment. MOLST refers to Medical Orders for Life-Sustaining Treatment. In Iowa, IPOST refers to Iowa Physician Orders for Scope of Treatment. Louisiana s Physician Order for Scope of Treatment uses the acronym LaPOST. Physician Orders for Sustaining Treatment or POST is the acronym used in Tennessee and West Virginia. COLST is the acronym used in Vermont for Clinician Orders for Life-sustaining Treatment. For more detail, See, POLST Legislative Comparison as of February 15, Accessed at: 5 See, e.g., Cal. Probate Code 4708(c) (2009) that states: The Physician Orders for Life Sustaining Treatment form and medical intervention and procedures offered by the form shall be explained by a health care provider, as defined in Section The form shall be completed by a health care provider based on patient preferences and medical indications, and signed by a physician and the patient or his or her legally recognized health care decisionmaker. The health care provider, during the process of completing the Physician Orders for Life Sustaining Treatment form, should inform the patient about the difference between an advance health care directive and the Physician Orders for Life Sustaining Treatment form. 6 See, Hawaii Revised Statutes 327K-2 (2014) Idaho Code B (2012). 9 Id. 10 Id CFR (2015) Condition of participation: Medical record services. 12 State Operations Manual Appendix A -Survey Protocol, Regulations and Interpretive Guidelines for Hospitals (Rev. 141, ), Appendix A. 13 POLST Legislative Guide, National POLST Paradigm Task Force, Approved February 28, Straight from the Source: A Refresher on Medicare s Hospital Medical Staff Privileging Requirements, American Health Lawyers Association Webinar, August 11, Idaho Code B (2012). 16 POLST Legislative Guide, National POLST Paradigm Task Force, Approved February 28, RMS NEWSLETTER ALL RIGHTS RESERVED 2015 PAGE 11