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H.115

AN ACT RELATING TO ADVANCE DIRECTIVES FOR HEALTH CARE

The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  18 V.S.A. Part 10 is added to read:

PART 10.  HEALTH CARE AND DECISION-MAKING

CHAPTER 231.  ADVANCE DIRECTIVES FOR HEALTH CARE AND DISPOSITION OF REMAINS

§ 9700.  PURPOSE AND POLICY

The state of Vermont recognizes the fundamental right of an adult to determine the extent of health care the individual will receive, including treatment provided during periods of incapacity and at the end of life.  This chapter enables adults to retain control over their own health care through the use of advance directives, including appointment of an agent and directions regarding health care and disposition of remains.  During periods of incapacity, the decisions by the agent shall be based on the express instructions, wishes, or beliefs of the individual, to the extent those can be determined.

§ 9701.  DEFINITIONS

As used in this chapter:

(1)  “Advance directive” means a written record executed pursuant to section 9703 of this title, which may include appointment of an agent, identification of a preferred primary care clinician, instructions on health care desires or treatment goals, an anatomical gift as defined in subdivision 5238(1) of this title, disposition of remains, and funeral goods and services.  The term includes documents designated under prior law as a durable power of attorney for health care or a terminal care document.

(2)  “Agent” means an adult with capacity to whom authority to make health care decisions is delegated under an advance directive, including an alternate agent if the agent is not reasonably available.

(3)  “Capacity” means an individual’s ability to make and communicate a decision regarding the issue that needs to be decided. 

(A)  An individual shall be deemed to have capacity to appoint an agent if the individual has a basic understanding of what it means to have another individual make health care decisions for oneself and of who would be an appropriate individual to make those decisions, and can identify whom the individual wants to make health care decisions for the individual.

(B)  An individual shall be deemed to have capacity to make a health care decision if the individual has a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care. 

(4)  “Clinician” means a medical doctor licensed to practice under chapter 23 of Title 26, an osteopathic physician licensed pursuant to subdivision 1750(9) of Title 26, an advance practice registered nurse licensed pursuant to subdivision 1572(4) of Title 26, and a physician’s assistant certified pursuant to section 1733 of Title 26 acting within the scope of the license under which the clinician is practicing.

(5)  “Commissioner” means the commissioner of the department of health.

(6)  “Do-not-resuscitate order” or “DNR order” means a written order of the principal’s clinician directing health care providers not to attempt resuscitation.

(7)  “DNR identification” means a document, bracelet, other jewelry, wallet card, or other means of identifying the principal as an individual who has a DNR order.

(8)  “Emergency medical personnel” shall have the same meaning as provided in section 2651 of Title 24.

(9)  “Guardian” means a person appointed by the probate court who has the authority to make medical decisions pursuant to subdivision 3069(b)(5) of Title 14.

(10)  “Health care” means any treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition, including services provided pursuant to a clinician’s order, and services to assist in activities of daily living provided by a health care provider or in a health care facility or residential care facility.

(11)  “Health care decision” means consent, refusal to consent, or withdrawal of consent to any health care.

(12)  “Health care facility” shall have the same meaning as provided in subdivision 9432(7) of this title. 

(13)  “Health care provider” shall have the same meaning as provided in subdivision 9432(8) of this title and shall include emergency medical personnel.

(14)  “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, codified at 42 U.S.C. § 1320d and 45 C.F.R. §§ 160-164. 

(15)  “Informed consent” means the consent given voluntarily by an individual with capacity after being fully informed of the nature, benefits, risks, and consequences of the proposed health care, alternative health care, and no health care.

(16)  “Interested individual” means:

(A)  the principal’s spouse, adult child, parent, adult sibling, adult grandchild, reciprocal beneficiary, or clergy person; or

(B)  any adult who has exhibited special care and concern for the principal and who is personally familiar with the principal’s values.

(17)  “Life sustaining treatment” means any medical intervention, including nutrition and hydration administered by medical means and antibiotics, which is intended to extend life and without which the principal is likely to die.

(18) “Nutrition and hydration administered by medical means” means the provision of food and water by means other than the natural ingestion of food or fluids by eating or drinking.

(19)  “Ombudsman” means an individual appointed as a long-term care ombudsman under the program contracted through the department of aging and independent living pursuant to the Older Americans Act of 1965, as amended.

(20)  “Patient’s clinician” means the clinician who currently has responsibility for providing health care to the patient.

(21)  “Principal” means an adult who has executed an advance directive.

(22)  “Principal’s clinician” means a clinician who currently has responsibility for providing health care to the principal.

(23)  “Probate court designee” means a responsible, knowledgeable individual independent of a health care facility designated by the probate court in the district where the principal resides or the county where the facility is located.

(24)  “Reasonably available” means able to be contacted with a level of diligence appropriate to the seriousness and urgency of a principal’s health care needs, and willing and able to act in a timely manner considering the urgency of the principal’s health care needs.

(25)  “Registry” means a secure, web-based database created by the commissioner to which individuals may submit an advance directive or information regarding the location of an advance directive that is accessible to principals and agents and, as needed, to individuals appointed to arrange for the disposition of remains, organ procurement organizations, tissue and eye banks, health care providers, health care facilities, residential care facilities, funeral directors, crematory operators, cemetery officials, and the employees thereof.

(26)  “Residential care facility” means a residential care home or an assisted living residence as those terms are defined in section 7102 of Title 33.

(27)  “Resuscitate” or “resuscitation” includes chest compressions and mask ventilation; intubation and ventilation; defibrillation or cardioversion; and emergency cardiac medications provided according to the guidelines of the American Heart Association’s Cardiac Life Support program. 

(28)  “Suspend” means to terminate the applicability of all or part of an advance directive for a specific period of time or while a specific condition exists.

§ 9702.  ADVANCE DIRECTIVE

(a)  An adult may do any or all of the following in an advance directive:

(1)  except as provided in subsection (b), appoint one or more agents and alternate agents to whom authority to make health care decisions is delegated and specify the scope of such authority;

(2)  affirm that the agent and alternate agents have been notified of and have accepted the appointment and will be given copies of the advance directive;

(3)  specify a circumstance or condition, which may be unrelated to the principal’s capacity, which, when met, makes the authority of an agent effective or ineffective, and may specify the manner in which the condition shall be determined to have been met;

(4)  provide that the advance directive will become effective upon execution;

(5)  direct the type of health care desired or not desired by the principal,  which may include instructions regarding transfer from home, hospitalization, and specific treatments that the principal desires or rejects when being treated for a mental or physical condition or disability;

(6)  execute a provision under subsection 9707(h) of this title which permits the agent to authorize or withhold health care over the principal’s objection in the event the principal lacks capacity;

(7)  direct which life sustaining treatments, as defined in subdivision (17) of section 9701 of this title, whether emergency, short-term, or long-term, and including nutrition and hydration administered by medical means, are desired or not desired by the principal;

(8)  direct which life sustaining treatment the principal would desire or not desire if the principal is pregnant at the time an advance directive becomes effective;

(9)  identify those persons whom the principal does not want to serve as his or her decision-maker, or those adults or minors with whom the agent shall or shall not consult, or to whom the agent is or is not authorized to provide information regarding the principal’s health care;

(10)  identify those interested individuals, otherwise qualified to bring an action under section 9718 of this title, who shall not have authority to bring an action under that section; 

(11)  authorize release to named individuals in addition to the agent of health information pursuant to HIPAA;

(12)  provide any other direction that the principal desires to give regarding the principal’s future health care or personal circumstances;

(13)  identify a preferred primary care clinician and affirm that the clinician has been notified;

(14)  nominate one or more individuals to serve as the principal’s guardian if a guardian should at some later time need to be appointed, or identify those individuals the principal does not want to serve as guardian;

(15)  make, limit, or refuse to make an anatomical gift pursuant to chapter 109 of this title;

(16)  direct the manner of disposition of the principal’s remains and the funeral goods and services to be provided;

(17)  identify a pre-need contract entered into with a funeral director, crematory, or cemetery; and

(18)  except as provided in subsection (c) of this section, appoint an individual to make or refuse to make an anatomical gift, and to arrange for the disposition of the principal’s remains, including funeral goods and services.

(b)  The absence of an advance directive or of any specific instruction in an advance directive shall have no effect on determining the principal’s intent or wishes regarding health care or any other matter.

(c)  The principal’s health care provider may not be the principal’s agent.  Unless related to the principal by blood, marriage, civil union or adoption, an agent may not be an owner, operator, employee, agent, or contractor of a residential care facility, a health care facility, or a correctional facility in which the principal resides. 

(d)  Unless related to the principal by blood, marriage, civil union or adoption, an individual may not exercise the authority pursuant to an advance directive for disposition of remains, anatomical gifts, or funeral goods and services while serving the interests of the principal in one of the following capacities:

(1)  a funeral director or employee of the funeral director;

(2)  a crematory operator or employee of the crematory operator; or

(3)  a cemetery official or employee of the cemetery.

§ 9703.  FORM AND EXECUTION

(a)  An adult with capacity may execute an advance directive at any time.

(b)  The advance directive shall be dated, executed by the principal or by another individual in the principal’s presence at the principal’s express direction if the principal is physically unable to do so, and signed in the presence of two or more witnesses at least 18 years of age, who shall sign and affirm that the principal appeared to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed.

(c)  Neither the agent appointed by the principal nor the principal’s spouse, reciprocal beneficiary, parent, adult sibling, adult child, or adult grandchild may witness the advance directive.

(d)  An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a resident of a nursing home as defined in section 7102 of Title 33 or a residential care facility unless an ombudsman, a recognized member of the clergy, an attorney licensed to practice in this state, or a probate court designee signs a statement affirming that he or she has explained the nature and effect of the advance directive to the principal.  It is the intent of this subsection to ensure that residents of nursing homes and residential care facilities are willingly and voluntarily executing advance directives.

(e)  An advance directive shall not be effective if, at the time of execution, the principal is being admitted to or is a patient in a hospital, unless an ombudsman, a recognized member of the clergy, an attorney licensed to practice in this state, a probate court designee, or an individual designated under subsection 9709(c) of this title by the hospital signs a statement that he or she has explained the nature and effect of the advance directive to the principal. 

(f)  A durable power of attorney for health care, terminal care document, or advance directive executed prior to the enactment of this chapter shall be a valid advance directive if the document complies with the statutory requirements in effect at the time the document was executed or with the provisions of this chapter.

§ 9704.  AMENDMENT, SUSPENSION, AND REVOCATION

(a)(1)  A principal with capacity may amend, suspend, or revoke an advance directive or any specific instruction in an advance directive by executing a new advance directive or instruction pursuant to section 9703 of this title.

(2)  A provision in a subsequently executed advance directive amends an earlier provision in an advance directive to the extent of any conflict between them.

(b)(1)  Except as provided in subdivision (2) of this subsection, a principal with or without capacity may suspend or revoke all or part of an advance directive:

(A)  by signing a statement suspending or revoking the designation of an agent; 

(B)  by personally informing the principal’s clinician, who shall make a written record of the suspension or revocation in the principal’s medical record;

(C)  by burning, tearing, or obliterating the advance directive, either by the principal personally or by another person at the principal’s express direction and in the presence of the principal; or

(D)  For any provision other than the designation of an agent, orally, in writing, or by any other act evidencing a specific intent to suspend or revoke.

(2)  A provision in an advance directive executed pursuant to subsection 9707(h) of this title may be suspended or revoked only if the principal has capacity.

(3)  To the extent possible, the principal shall communicate any suspension or revocation to the agent or other interested individual.

(c)(1)  A clinician, health care provider, health care facility, or residential care facility who becomes aware of an amendment, suspension, or revocation while treating an incapacitated principal shall make reasonable efforts to:

(A)  confirm the amendment, suspension, or revocation;

(B)  record the amendment, suspension, or revocation in the principal’s medical record;

(C)  flag the amendment, suspension, or revocation in the principal’s medical record on the front of the medical record folder or on the front of any advance directive filed in the medical record; and

(D)  notify the principal, agent, and guardian of the amendment, suspension, or revocation.

(2)  A clinician, health care provider, health care facility, or residential care facility who becomes aware of an amendment, suspension, or revocation while treating a principal with capacity shall comply with the following requirements:

(A)  satisfy the requirements of subdivisions (1)(A), (B), and (C) of this subsection; and

(B)  on request, assist the principal in notifying agents, guardians, interested individuals, and the registry.

(3)  A health care provider, health care facility, or residential care facility not currently providing health or residential care to a principal who becomes aware of an amendment, suspension, or revocation shall ensure that the amendment, suspension, or revocation is recorded and flagged in the principal’s medical record.

(4)  An agent or guardian who becomes aware of an amendment, suspension, or revocation shall make reasonable efforts to:

(A)  confirm the amendment, suspension, or revocation;

(B)  ensure that the amendment, suspension, or revocation is recorded in the principal’s medical record; and

(C)  provide notice of the amendment, suspension, or revocation to

(i)  the principal’s clinician, health care provider, health care facility, or residential care facility;

(ii)  any person designated in the advance directive to receive such notice;

(iii) any entity or individual known to hold a copy of the principal’s advance directive; and

(iv)  the registry, if the principal’s advance directive has been submitted to the registry.

(d)(1)  The filing of an action or motion for annulment, divorce, dissolution of a civil union, legal separation, or an order for relief from abuse under chapter 21 of Title 15 or subchapter 2 of chapter 69 of Title 33 by, on behalf of, or against the principal suspends a previous designation of the spouse or other party opposing the principal in the action as agent unless otherwise specified in the advance directive, decree, or order of the court.

(2)  A designation of agent suspended under subdivision (1) of this subsection shall no longer be in effect, and the agent shall be reinstated, upon the withdrawal of the action or motion for annulment, divorce, dissolution of civil union, legal separation, or order for relief from abuse, or upon the expiration of a temporary order for relief from abuse.

(3)  A designation of agent suspended under subdivision (1) of this subsection shall become permanent when the annulment, divorce, dissolution of civil union, or legal separation becomes final, or when the motion for relief from abuse is granted.

(e)  Unless otherwise provided for in an advance directive, each provision of an advance directive is severable from the other provisions in an advance directive if it can be given effect independently.

§ 9705.  DUTY TO DELIVER

An individual possessing a duly executed advance directive to whom it becomes known that the terms of the advance directive may be applicable shall deliver the advance directive to the principal’s clinician, other health care provider, health care facility, or residential care facility, unless the individual knows that another copy has previously been delivered and is available.

§ 9706.  WHEN ADVANCE DIRECTIVE BECOMES EFFECTIVE

(a)  An advance directive regarding health care shall become effective:

(1)  when a principal’s clinician:

(A)  determines, after consultation with an interested individual if one is reasonably available, that the principal lacks capacity, and makes specific findings regarding the cause, nature, and projected duration of the principal’s lack of capacity;

(B)  has made reasonable efforts to notify the principal of the determination; and

(C)  has made reasonable efforts to notify the principal’s agent or guardian of the determination; or

(2)  when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title has been met; or

(3)  upon execution, if specified pursuant to subdivision 9702(a)(4) of this title.

(b)  When a principal has a clinician, the clinician shall certify in the principal’s medical record the facts that have caused an advance directive to become effective.

(c)  Upon a determination of need by the principal’s clinician, or upon the request of the principal, agent, guardian, ombudsman, health care provider, or any interested individual, the principal’s clinician, another clinician, or a clinician’s designee shall reexamine the principal to determine whether the principal has capacity.  The clinician shall document the results of the reexamination in the principal’s medical record and shall make reasonable efforts to notify the principal and the agent or guardian, as well as the individual who initiated the new determination of capacity, of the results of the reexamination, if providing such notice is consistent with the requirements of HIPAA.

(d)  The authority of an agent to make health care decisions for a principal shall cease in accordance with subsection 9711(c) of this title.

(e)  An advance directive regarding disposition of the principal’s remains shall become effective upon the death of the principal.

§ 9707.  AUTHORITY AND OBLIGATIONS OF HEALTH CARE

              PROVIDERS, HEALTH CARE FACILITIES, AND RESIDENTIAL

              CARE FACILITIES REGARDING HEALTH CARE

              INSTRUCTIONS

(a)  A health care provider, health care facility, and residential care facility shall not provide health care to a patient without capacity, except on an emergency basis, without first attempting to determine whether the patient has an advance directive in effect.

(b)  A health care provider, health care facility, and residential care facility having knowledge that a principal’s advance directive is in effect shall follow the instructions of the person, whether agent or guardian, who has the authority to make health care decisions for the principal, or the instructions contained in the advance directive, unless:

(1)  the instruction is clearly inconsistent with the advance directive or this chapter, and:

(A)  the agent has failed to substantiate that the decision is proper under subsection 9711(d) of this title; or

(B)  the guardian has not obtained an order from probate court authorizing the instruction;

(2)  the instruction would cause the provider to violate any criminal law or the standards of professional conduct required by a professional licensing board or agency, in which case the provider shall make reasonable efforts to notify the principal, if possible, and any agent and guardian that the provider cannot follow the instruction; or

(3)  because of a moral, ethical, or other conflict with an instruction in the advance directive or given by the agent or guardian, a principal’s provider, or an employee thereof is unwilling to follow that instruction, in which case the provider shall promptly:

(A)  inform the principal, if possible, and any appointed agent and guardian of the conflict;

(B)  assist the principal, agent, or guardian in the transfer of care to another provider or employee who is willing to honor the instruction;

(C)  provide ongoing health care until a new provider or employee has been found to provide the services; and

(D)  document in the principal’s medical record the conflict, the steps taken to resolve the conflict, and the resolution of the conflict.

(c)  A health care provider, health care facility, or residential care facility which refuses pursuant to subdivision (b)(1) or (2) of this section to follow the instructions of the agent or the guardian or the instructions contained in the advance directive shall:

(1)  inform the principal, if possible, and any agent, guardian, or other person making health care decisions for the person of the reasons for the refusal;

(2)  document in the principal’s medical record the refusal, the reasons for the refusal, who was notified of the refusal, and any other steps taken to resolve the refusal. 

(d)  An employee with a conflict under subdivision (b)(3) of this section shall be required only to inform the employee’s employer.  The employer shall be responsible for otherwise complying with the requirements of that subdivision.

(e)  Unless otherwise required by the advance directive, in those circumstances where there is more than one adult identified as the agent, the principal’s clinician, health care provider, or residential care provider may rely on the decision of one of the identified agents as long as the clinician or provider documents in the principal’s medical record that the agent confirms that:

(1)  all agents agree on the pending health care decision;

(2)  all agents agree that this agent can make any pending health care decisions; or

(3)  the other agent or agents are not reasonably available.

(f)  The health care provider shall make reasonable efforts to inform the principal of any proposed health care or of any proposal to withhold or withdraw health care.

(g)(1)  Health care shall not be given to or withheld from a principal over the principal’s objection unless:

(A)(i)  The principal’s advance directive contains a provision, executed in compliance with subsection (h) of this section, which permits the agent to authorize or withhold health care over the principal’s objection in the event the principal lacks capacity; and

(ii)  The agent authorizes providing or withholding the health care; or

(B)  The principal lacks capacity, will suffer serious and irreversible bodily injury or death if the health care cannot be provided within 24 hours, and:

(i)  the principal does not have an agent or an applicable provision in an advance directive; or

(ii)  the agent or advance directive authorizes providing or withholding the health care.

(2)  The health care provider shall notify the agent or guardian if a principal requests or declines health care which the agent appears to have the authority to authorize or withhold under the principal’s advance directive.

(h)(1)  An advance directive executed in accordance with section 9703 of this title may contain a provision permitting the agent, in the event that the principal lacks capacity, to authorize or withhold health care over the principal’s objection.  In order to be valid, the provision shall comply with the following requirements:

(A)  An agent shall be named in the provision.

(B)  The agent shall accept in writing the responsibility of authorizing or withholding health care over the principal’s objection in the event the principal lacks capacity.

(C)  A clinician for the principal shall sign the provision and affirm that the principal understands the benefits, risks, and alternatives to the health care being authorized or rejected by the principal in the provision.

(D)  An ombudsman, clergy person, attorney licensed to practice law in this state, or probate court designee shall sign a statement affirming that he or she has explained the nature and effect of the provision to the principal, and that the principal appeared to understand the explanation.   

(E)  The provision shall specify the particular treatments to which it applies, and shall include an explicit statement that the principal desires or does not desire the proposed treatments even over the principal’s objection at the time treatment is being offered or withheld.  The provision may include a statement expressly granting to the health care agent the authority to consent to the principal’s voluntary hospitalization, and to agree that the principal’s discharge from the hospital may be delayed, pursuant to section 8010 of this title.

(F)  The provision shall include an acknowledgment that the principal is knowingly and voluntarily waiving the right to refuse or receive treatment at a time of incapacity, and that the principal understands that a clinician will determine capacity.

(G)  If the principal is a patient in a hospital when the provision is executed, one of the following persons, who shall be independent of the hospital and not an interested individual, shall sign a statement affirming that at the time of execution, the principal appeared to understand the nature of the provision and to be free from duress or undue influence:

(i)  An ombudsman.

(ii)  A clergyperson.

(iii)  An attorney licensed to practice law in this state.

(iv)  A probate court designee.

(2)  A provision executed in compliance with subdivision (1) of this subsection shall be effective when the principal’s clinician and a second clinician have determined pursuant to subdivision 9706(a)(1) of this title that the principal lacks capacity.

(3)  If an advance directive contains a provision executed in compliance with this section:

(A)  The agent may, in the event the principal lacks capacity, make health care decisions over the principal’s objection, provided that the decisions are made in compliance with subsection 9711(d) of this title.

(B)  A clinician shall follow instructions of the agent authorizing or withholding health care over the principal’s objection.

§ 9708.  AUTHORITY AND OBLIGATIONS OF HEALTH CARE

              PROVIDERS, HEALTH CARE FACILITIES, AND RESIDENTIAL

              CARE FACILITIES REGARDING DO-NOT-RESUSCITATE

              ORDERS 

(a)  A do-not-resuscitate (“DNR”) order must:

(1)  be signed by the patient’s clinician;

(2)  certify that the clinician has consulted, or made an effort to consult, with the patient, and the patient’s agent or guardian, if there is an appointed agent or guardian;

(3)  include either:

(A)  the name of the patient, agent, or other individual giving informed consent for the DNR and the individual’s relationship to the patient; or

(B)  certification that the patient’s clinician and one other named clinician have determined that resuscitation would not prevent the imminent death of the patient, should the patient experience cardiopulmonary arrest; and

(4)  if the patient is in a health care facility or a residential care facility, certify that the requirements of the facility’s DNR protocol required by section 9709 of this title have been met.

(b)  A clinician who issues a DNR order may authorize issuance of a DNR identification to the principal.

(c)  Every health care provider, health care facility, and residential care facility shall honor a DNR order or a DNR identification unless the provider or facility:

(1)  believes in good faith, after consultation with the agent or guardian where possible and appropriate, that:

(A)  the principal wishes to have the DNR order revoked; or

(B)  the principal with the DNR identification is not the individual for whom the DNR order was issued; and

(2)  documents the basis for that belief in the principal’s medical record.

(d)  A DNR order precludes efforts to resuscitate only in the event of cardiopulmonary arrest and does not affect other therapeutic interventions that may be appropriate for the patient.

§ 9709.  OBLIGATIONS OF HEALTH CARE PROVIDERS, HEALTH

              CARE FACILITIES, RESIDENTIAL CARE FACILITIES, AND

              HEALTH INSURERS REGARDING PROTOCOLS AND

              NONDISCRIMINATION

(a)  Every health care provider, health care facility, and residential care facility shall develop protocols:

(1)  to ensure that a principal’s advance directive, including any amendment, suspension, or revocation thereof, and DNR order, if any, are promptly available when services are to be provided, including that the existence of the advance directive, amendment, suspension, revocation, or DNR order is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the provider or facility;

(2)  for maintaining advance directives received from individuals who anticipate future care but are not yet patients of that provider or facility; and

(3)  within 120 days of the commissioner announcing the availability of the registry, to ensure that the provider or facility checks the registry at the time any individual without capacity is admitted or provided services to determine whether the individual has an advance directive.

(4)(A)  to ensure that, unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights a principal with capacity would have to:

(i)  request, review, receive, and copy any oral or written information regarding the principal’s physical or mental health, including medical and hospital records;

(ii)  participate in any meetings, discussions, or conferences concerning health care decisions related to the principal;

(iii)  consent to the disclosure of health care information; and

(iv)  file a complaint on behalf of the principal regarding a health care provider, health care facility, or residential care facility.

(B)  The exercise of rights under this subdivision shall not be construed to waive any privilege provided by law.

(5)  to ensure that the provider or facility complies with its obligations under the Patient Self-Determination Act, 42 U.S.C. § 1395cc(a), and the regulations issued thereunder.

(b)  Every health care facility and residential care facility shall develop written protocols to ensure that:

(1)  A patient is asked if the patient has an advance directive:

(A)  prior to an anticipated admission, when possible;

(B)  if not possible prior to admission, as soon thereafter as possible; and

(C)  periodically while at the facility.

(2)(A)  A patient’s advance directive is reviewed to determine whether the facility would decline to follow any of the advance directive’s instructions pursuant to subsection 9707(b) of this title, in which case the facility shall comply with the requirements of subsection 9707(c) or subdivision 9707(b)(3) of this title.

(B)  The review of a patient’s advance directive required by this subdivision shall occur:

(i)  prior to an anticipated admission, when possible;

(ii)  if not possible prior to an anticipated admission, as soon thereafter as possible; and

(iii)  when a patient executes an advance directive or an amendment to an advance directive. 

(3)  A patient with an advance directive is encouraged and helped to submit the advance directive or a notice of the advance directive to the registry.

(4)  DNR orders are issued, revoked, and handled pursuant to the same process and standards that are used for each patient receiving health care.

(5)  Upon transfer from the facility, a copy of any advance directive, DNR order, and clinician order for life sustaining treatment is transmitted with the principal or, if the transfer is to a health care facility or residential care facility, is promptly transmitted to the subsequent facility, unless the sending facility has confirmed that the receiving facility has a copy of any advance directive, DNR order, or clinician order for life sustaining treatment.

(c)  Every hospital shall designate an adequate number of individuals to explain the nature and effect of an advance directive to patients as required by subsection 9703(e) of this title.

(d)  No health care provider, health care facility, residential care facility, health insurer as defined in section 9402 of this title, insurer issuing disability insurance, or self-insured employee welfare benefit plan shall charge an individual a different rate or require any individual to execute an advance directive or to obtain a DNR order or DNR identification as a condition of admission to a facility or as a condition of being insured for or receiving health care or residential care.  No health care shall be refused except as provided herein because an individual is known to have executed an advance directive.

§ 9710.  [RESERVED]

§ 9711.  AUTHORITY AND OBLIGATIONS OF AGENT

(a)  When the requirements of subsection 9706(a) are met, and subject to the provisions of this chapter, other applicable law, and any express instructions regarding the agent’s authority set forth in an advance directive or a court order, an agent shall have the authority to make any health care decisions on the principal’s behalf that the principal could make if the principal had capacity.

(b)  A principal with capacity retains concurrent authority with the principal’s agent to make health care decisions.  In the event the principal and the agent disagree on a decision regarding the principal’s health care, the decision of the principal shall be controlling.

(c)  The authority of an agent ceases to be effective:

(1)  if the advance directive became effective pursuant to subdivision 9706(a)(1), upon a clinician’s determination that the principal has recovered capacity; or

(2)  when the circumstance or condition specified pursuant to subdivision 9702(a)(3) of this title no longer is met.

(d)(1)  After consultation with the principal, to the extent possible, and with the principal’s clinician and any other appropriate health care providers and any individuals identified in the advance directive as those with whom the agent shall consult, the agent shall make health care decisions by attempting to determine what the principal would have wanted under the circumstances.  In making the determination, the agent shall consider the following:

(A)  the principal’s specific instructions contained in an advance directive to the extent those directions are applicable;

(B)  the principal’s wishes expressed to the agent, guardian, or health care provider, since or prior to the execution of an advance directive, if any, to the extent those expressions are applicable; or

(C)  the agent’s knowledge of the principal’s values or religious or moral beliefs.

(2)  If the agent cannot determine what the principal would have wanted under the circumstances, the agent shall make the determination through an assessment of the principal’s best interests.  When making a decision for the principal on this basis, the agent shall not authorize the provision or withholding of health care on the basis of the principal’s economic status or preexisting, long-term mental or physical disability.

(3)  When making a determination under this subsection, the agent shall not consider the agent’s own interests, wishes, values, or beliefs.

(4)  If an agent is unable or unwilling to make a health care decision for the principal in compliance with the requirements of this subsection, the agent shall:

(A)  recuse himself or herself with respect to the decision or resign from being the principal’s agent; and

(B)  notify the principal, alternate agent, health care provider, and residential care provider of the recusal or resignation.

(e)  Unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights a principal with capacity would have to:

(1)  request, review, receive, and copy any oral or written information regarding the principal’s physical or mental health, including medical and hospital records;

(2)  participate in any meetings, discussions, or conferences concerning health care decisions related to the principal;

(3)  consent to the disclosure of health care information; and

(4)  file a complaint on behalf of the principal regarding a health care provider, health care facility, or residential care facility.

(f)  Nothing in this chapter shall be construed to give an agent authority to consent to voluntary sterilization.

(g)  Unless the probate court expressly orders otherwise in a guardianship proceeding pursuant to subdivision 3069(b)(5) of Title 14, the authority of an agent appointed and the instructions contained in an advance directive executed prior to the appointment of the guardian shall remain in effect, and the ward may not execute an advance directive.

§ 9712.  OBLIGATIONS OF FUNERAL DIRECTORS, CREMATORY

              OPERATORS, CEMETERY OFFICIALS, AND INDIVIDUALS

              APPOINTED TO ARRANGE FOR THE DISPOSITION OF THE

              PRINCIPAL’S REMAINS

(a)  An individual appointed to arrange for the disposition of the principal’s remains shall make those decisions based upon the principal’s specific instructions contained in an advance directive or pre-need contract entered into with a funeral director, crematory operator, or cemetery official, or, if there are no such instructions, in accordance with the principal’s wishes expressed orally or the knowledge of the agent or guardian of the principal’s values or religious or moral beliefs.

(b)  Any funeral director, crematory operator, or cemetery official having knowledge of a principal’s advance directive shall follow the advance directive and any instructions of the individual appointed in an advance directive to arrange for the disposition of the principal’s remains, except:

(1)  if any instruction would cause the director, operator, or official to violate the standards of professional conduct required by a professional licensing board or agency or any criminal law, the director, operator, or official shall notify the individual appointed that the director, operator, or official cannot follow the instruction; or

(2)  if the principal’s estate is without sufficient funds to dispose of the remains or provide funeral goods and services in accordance with the advance directive, the disposition shall occur in a manner approximating the principal’s wishes to the extent it is financially possible.

(c)  Every funeral director, crematory operator, and cemetery official shall develop systems to ensure that a principal’s advance directive is promptly available when services are to be provided, including that the existence of an advance directive is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the director, operator, or official.

(d)  In the event the principal’s instructions in an advance directive regarding disposition of remains or for funeral goods and services are in apparent conflict with a contract entered into by the principal for the disposition of remains, funeral goods, or services, the most recent document created by the principal shall be followed to the extent of the conflict.  Nothing in this subsection shall be construed as limiting any other available remedies.

§ 9713.  IMMUNITY

(a)  No individual acting as an agent or guardian shall be subjected to criminal or civil liability for making a decision in good faith pursuant to the terms of an advance directive and the provisions of this chapter.

(b)(1)  No health care provider, health care facility, residential care facility, funeral director, crematory operator, cemetery official, or any other person acting for or under such person’s control shall, if the provider, facility, director, operator, or official has complied with the provisions of this chapter, be subjected to civil or criminal liability for:

(A)  providing or withholding health care in good faith pursuant to the provisions of an advance directive, a DNR identification of the principal, the consent of a principal with capacity or of the principal’s agent or guardian, or a decision or objection of a principal; or

(B)  relying on a suspended or revoked advance directive.

(2)  Nothing in this subsection shall be construed to establish immunity for the failure to follow standards of professional conduct and to exercise due care in the provision of services.

(c)  No employee shall be subjected to an adverse employment decision or evaluation for:

(1)  providing or withholding health care in good faith pursuant to the direction of a principal, the provisions of an advance directive, a DNR identification of the principal, the consent of the principal’s agent or guardian, a decision or objection of a principal, or the provisions of this chapter.  This subdivision shall not be construed to establish a defense for the failure to follow standards of professional conduct and to exercise due care in the provision of services;

(2)  relying on an amended, suspended, or revoked advance directive, unless the employee knew or should have known of the amendment, suspension or revocation; or

(3)  providing notice to the employer of a moral or other conflict pursuant to subdivision 9707(b)(3) of this title, so long as the employee has provided ongoing health care until a new employee or provider has been found to provide the services.

§ 9714.  FAILURE TO FOLLOW ADVANCE DIRECTIVE;

              UNAUTHORIZED ACCESS OF REGISTRY; ADMINISTRATIVE

              PENALTIES

(a)  A health care provider, health care facility, residential care facility, funeral director, crematory operator, or cemetery official, or an employee of any of them having actual knowledge of an advance directive or an instruction of the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing entity for failing to act in accordance with the advance directive or instruction or with subsection 9707(b) of this title.

(b)  A health care provider, health care facility, residential care facility, funeral home director, crematory operator, or cemetery official, or an employee of any of them who accesses the registry without authority or when authority has been denied specifically by the principal, agent, or guardian is subject to review and disciplinary action by the appropriate licensing entity. 

(c)  Nothing in this section shall be construed as limiting any other available remedies.

(d)  Liability for the cost of health care, disposition of remains, anatomical gifts, or funeral goods and services provided pursuant to an advance directive or pursuant to an instruction of the agent, guardian, or individual designated in an advance directive to make decisions regarding disposition of remains shall be the same as if the services were provided pursuant to the principal’s decision.

§ 9715.  INTERPRETATION WITH OTHER LAWS

(a)  The withholding or withdrawal of life sustaining treatment from a principal who has executed an advance directive limiting the provision of life sustaining treatment shall not be construed as a suicide.

(b)  Nothing in this chapter shall be construed to limit or abrogate an individual’s ability to create a document of anatomical gift pursuant to chapter 109 of this title.

(c)  Nothing in this chapter shall be interpreted to affect the statutory or common law in existence at the time of enactment applicable to

death intentionally hastened through the use of prescription medication.  Professionally appropriate use of medication to relieve suffering which may have the unintended effect of hastening death is not death intentionally hastened through the use of prescription medication.

§ 9716.  RECIPROCITY

Nothing in this chapter limits the enforceability of an advance directive or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction.

§ 9717.  PRESUMPTION OF VALIDITY

An advance directive executed as provided in this chapter shall be presumed valid.  No third party shall require an additional or different form of advance directive.  A photocopy or facsimile of a duly executed original advance directive shall be relied upon to the same extent as the original.

§ 9718.  PETITION FOR REVIEW BY PROBATE COURT

(a)  A petition may be filed in probate court under this section by:

(1)  a, principal, guardian, agent, ombudsman, or interested individual;

(2)  a social worker or health care provider employed by or directly associated with the health care provider, health care facility, or residential care facility providing care to the principal;

(3)  the defender general if the principal is in the custody of the department of corrections; or

(4)  a representative of protection and advocacy if the principal is in the custody of the department of health.

(b)  A petition filed in probate court under this section shall include a supporting affidavit and may request:

(1)  that the advance directive be revoked on the grounds that the principal lacked capacity to understand the nature of the advance directive, was under duress, or was the subject of fraud or undue influence when the advance directive was executed, except that, if the principal is deceased, this subdivision shall not apply to any part of an advanced directive making an anatomical gift;

(2)  that the suspension or revocation of the advance directive be voided and the advance directive be reinstated on the grounds that at the time of the suspension or revocation, the principal was under duress or was the subject of fraud or undue influence;

(3)  a declaratory judgment concerning the construction of an advance directive or the rights, legal status, or other legal relationship of the parties with respect to an advance directive; or 

(4)  an order for disposition of the remains of the principal. 

(c)  A principal, agent, or interested individual may file a petition in probate court with a supporting affidavit challenging a determination that the condition specified pursuant to subdivision 9702(a)(3) of this title is met.

(d)  The principal or an agent may file a petition in probate court challenging a determination under section 9706(a)(1) or (c) of this title if:

(1)  the petitioner provides notice to any agent, the principal, an interested individual, or a person entitled to notification of a determination of capacity under section 9706(a)(1) or (c) of this title prior to filing;

(2)  the petition includes a supporting affidavit setting forth specific facts challenging a capacity determination under section 9706(a)(1) or (c) of this title;

(3)(A)  prior to filing, the petitioner obtains a determination from a clinician that the principal’s capacity is not as the principal’s clinician has determined; or

(B)  if the petitioner is unable to obtain the determination required by subdivision (A) of this subdivision (3), the petitioner includes in the supporting affidavit the facts regarding the attempts to obtain a second determination of capacity and supporting the challenge to the capacity determination by the petitioner’s clinician; and

(4)  the petitioner notifies the principal’s clinician that a petition challenging the determination of capacity has been filed and provides the supporting determination or affidavit to the principal’s clinician.

(e)  The probate court may limit the frequency of a capacity redetermination pursuant to subsection (d) of this section upon a finding that there have been multiple requests for redetermination, and that those requests have been frivolous or requested in bad faith.   

(f)  The agent, if any, shall have the opportunity to appear in any action brought under subdivision (b)(1), (2), or (3) of this subsection or subsection (c) or (d) of this section.

(g)  A petitioner filing under subsection (b), (c), or (d) of this section shall, if doing so would be consistent with any obligations the petitioner has under HIPAA, provide notice to the following persons if known:  the principal, an agent, a guardian, and interested individuals.

§ 9719.  OBLIGATIONS OF STATE AGENCIES

(a)  Within 180 days of the effective date of this chapter, and from time to time thereafter, the commissioner, in consultation with all appropriate agencies and organizations, shall adopt rules pursuant to chapter 25 of Title 3 to effectuate the intent of this chapter.  The rules shall cover at least one optional form of an advance directive with an accompanying form providing an explanation of choices and responsibilities, the form and content of clinician orders for life sustaining treatment, the use of experimental treatments, a model DNR order which meets the requirements of subsection 9708(a) of this title, DNR identification, revocation of a DNR identification, and consistent statewide emergency medical standards for DNR orders and advance directives for patients and principals in all settings.  The commissioner shall also provide, but without the obligation to adopt a rule, optional forms for advance directives for individuals with disabilities, limited English proficiency, and cognitive translation needs.

(b)(1)  Within 180 days of the effective date of this chapter, the commissioner shall develop and maintain a registry to which a principal may submit his or her advance directive, including a terminal care document and a durable power of attorney.  The rules shall describe when health care providers, health care facilities, and residential care facilities may access an advance directive in the registry.  In no event shall the information in the registry be accessed or used for any purpose unrelated to decision-making for health care or disposition of remains, except that the information may be used for statistical or analytical purposes as long as the individual’s identifying information remains confidential.

(2)(A)  Within 180 days of the effective date of this chapter, the commissioner shall adopt rules pursuant to chapter 25 of Title 3 on the process for securely submitting, revoking, amending, replacing, and accessing the information contained in the registry.  The rules shall provide for incorporation into the registry of notifications of amendment, suspension, or revocation under subsection 9704(c) of this title and revocations of appointment under subsection 9704(d) of this title.

(B)  The commissioner shall provide to any individual who submits an advance directive to the registry a sticker that can be placed on a driver’s license or identification card indicating that the holder has an advance directive in the registry. 

(c)(1)  Within 180 days of the effective date of this chapter, the commissioner shall provide on the department’s public website information on advance directives and the registry to appropriate state offices.  The commissioner shall also include information on advance directives, and on the registry and the optional forms of an advance directive.

(2)  Within 180 days of the effective date of this chapter, the commissioner of motor vehicles shall provide motor vehicle licenses and identity cards, as soon as existing licenses or cards have been depleted, which allow the license holder or card holder to indicate that he or she has an advance directive and whether it is in the registry.

§ 9720.  Severability

If any provisions of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and, to this end, provisions of this chapter are severable.

Sec. 2.  14 V.S.A. § 3062 is amended to read:

§ 3062.  JURISDICTION

The probate court shall have exclusive original jurisdiction over all proceedings brought under the authority of this chapter or pursuant to section 9718 of Title 18.

Sec. 3.  4 V.S.A. § 311 is amended to read:

§ 311.  JURISDICTION GENERALLY

The probate court shall have jurisdiction of the probate of wills, the settlement of estates, trusts created by will, trusts of absent person’s estates, charitable, cemetery and philanthropic trusts, irrevocable trusts created by inter vivos agreements solely for the purpose of removal and replacement of trustees pursuant to subsection 2314(c) of Title 14, the appointment of guardians, and of the powers, duties and rights of guardians and wards, proceedings concerning chapter 231 of Title 18, accountings of attorneys in fact where no guardian has been appointed and the agent has reason to believe the principal is incompetent, relinquishment for adoption, adoptions, uniform gifts to minors, changes of name, issuance of new birth certificates, amendment of birth certificates, correction or amendment of marriage certificates, correction or amendment of death certificates, emergency waiver of premarital medical certificates, proceedings relating to cemetery lots, trusts relating to community mausoleums or columbariums, proceedings relating to the conveyance of a homestead interest of an insane a spouse under a legal disability, the issuance of declaratory judgments, issuance of certificates of public good authorizing the marriage of persons under 16 years of age, appointment of administrators to discharge mortgages held by deceased mortgagees, appointment of trustees for persons confined under sentences of imprisonment, fixation of compensation and expenses of boards of arbitrators of death taxes of Vermont domiciliaries, and as otherwise provided by law.

Sec. 4.  4 V.S.A. § 311a is amended to read:

§ 311A.  VENUE GENERALLY

For proceedings authorized to probate courts, venue shall lie in a district of the court as follows:

* * *

(29)  Proceedings concerning chapter 231 of Title 18:  in the district where the principal resides or in the district where the principal is a patient admitted to a health care facility. 

Sec. 5.  18 V.S.A. § 1852(a) is amended to read:

§ 1852.  PATIENTS’ BILL OF RIGHTS; ADOPTION

(a)  The general assembly hereby adopts the “Bill of Rights for Hospital Patients” as follows:

* * *

(16)  The patient has the right to receive professional assessment of pain and professional pain management.

(17)  The patient has the right to be informed in writing of the availability of hospice services and the eligibility criteria for those services.

Sec. 6.  ANNUAL PAIN MANAGEMENT PROGRESS REPORTS

The office of the attorney general shall report annually by January 15 through 2007 to the house committee on human services and the senate committee on health and welfare regarding the progress made on the issues and recommendations from the committee on pain and symptom management of the attorney general’s initiative on end of life care.

Sec. 7.  STATUTORY REVISION

Legislative council shall make technical statutory revisions necessary to conform existing statutory law to the changes reflected in this act, including any changes in terminology.

Sec. 8.  TRANSITIONAL PROVISIONS

(a)  This act shall not invalidate a power of attorney executed before July 1, 1988, a durable power of attorney for health care, a terminal care document, and an advance directive properly executed prior to the effective date of this act.

(b)  Notwithstanding any provision of law to the contrary, any irrevocable pre-need contract in effect prior to July 1, 2005 shall be considered an advance directive, may not be amended except by the principal, and shall be enforced as if entered into on or after July 1, 2005.

Sec. 9.  REPEAL

18 V.S.A. chapter 111 (advance directives for health care and end of life) is repealed.

Sec. 10.  REPORT

(a)(1)  On or before January 15, 2006, and on or before January 15 during each of the following two years, the commissioner of the department of health shall submit a report to the chairs of the following committees:  the house and senate committees on judiciary, the house committee on human services, and the senate committee on health and welfare.  The report shall describe the status and utilization of the registry established by this act and educational efforts undertaken to inform Vermonters about the registry and advance directives.  

(2)  On or before January 15, 2006, and on an annual basis thereafter, the commissioner shall make information describing the utilization and status of the registry available in an appropriate format to the public.

(b)  The report submitted pursuant to this section on or before January 15, 2006 shall:

(1)  assess the advisability and feasibility of including do-not-resuscitate orders in the registry, and recommend how to include them if doing so would be advisable and feasible;

(2)  recommend how to link organ donation designations on motor vehicle operator’s licenses with the registry established by this act; and

(3)  recommend a method to communicate to citizens of this state, in conjunction with the renewal of motor vehicle operator’s licenses, the advisability of having and periodically updating an advance directive, and of organ donation designations.  

 

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us