HOUSE DOCKET, NO. 3401        FILED ON: 1/18/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1888

The Commonwealth of Massachusetts

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PRESENTED BY:

Cory Atkins

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act providing for health care consumer rights and providing incentives and immunities for health care providers.

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PETITION OF:

HOUSE DOCKET, NO. 3401        FILED ON: 1/18/2013

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1888

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act providing for health care consumer rights and providing incentives and immunities for health care providers.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 111 of the General Laws is hereby amended by inserting after section 227 the following section:

SECTION 2. As used in this section, the following terms shall have the following meanings, unless the context otherwise requires:--

“Adult”, an individual who is at least 18 years of age.

“Advance health care directive”, a health care proxy under chapter 201D or a durable power of attorney or other individual instruction relating to the provision of health care when an adult becomes incapacitated.

“Competent”, having the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to proposed health care services, and to reach an informed decision.

“Health care decision-maker”, a health care agent appointed in a valid health care proxy under section 2 of chapter 201D, a person appointed in a durable power of attorney pursuant to [CITE]; or a judicially appointed guardian [CITE]

“Health care provider” or “provider", any individual or organizational entity, licensed, certified, or otherwise authorized or permitted to provide health care or related personalized assistance in the ordinary course of business or professional practice. The term includes facilities facility subject to section 70E of chapter 111, section 1 of chapter 201D, section 1 of chapter 6D, and section 1 of chapter 19D.

“Informed health care decision” or “decision”, an act, omission or decision to accept or refuse health care services that is based on an understanding and acknowledgement of the relevant facts and is made after being fully informed by the attending health care provider of the patient’s medical diagnosis and prognosis, all treatment options, potential risks and probable results. The term includes a decision by: (a) a competent adult patient to request, refuse, discontinue, withhold or withdraw life-prolonging treatment, nutrition and hydration, pain and symptom management or palliative sedation, and (b) a terminally ill, competent adult patient to obtain a prescription for medication the patient may choose to self-administer for a humane and dignified death.

“Patient”, a natural person receiving health care services from a health care provider.

“Resident”, a natural person in a facility subject to section 70E of chapter 111, section 1 of chapter 6D, and section 1 of chapter 19D.

“Terminally ill” means having a terminal illness or condition which can reasonably be expected to cause death within 6 months, whether or not treatment is provided.

“Unwanted medical treatment”, health care services given to a patient or resident that conflicts with the patient or resident’s informed health care decision to refuse, discontinue, withhold or withdraw unwanted health care services expressed directly or through an advance health care directive or the lawful instruction of the patient or resident’s authorized appointed health care decision-maker.

SECTION 3. Health care providers shall ensure compliance with the requirements of this chapter,  applicable state and federal law (whether statutory or as recognized by the courts) and related regulations protecting a patient’s or resident’s right to make informed health care decisions, including the right to accept or refuse treatment, the right to receive information about palliative care and end-of-life options, the right to formulate advance health care directives, and the right to refuse to participate in experimental research.  At a minimum, providers shall: 

(a)Develop, maintain, and implement written policies and procedures that delineate the provider’s advance care planning procedures and the actions the provider takes to promote and implement the patients’ or residents’ rights pursuant to this chapter ;

(b)Provide oral and written information about corporate policies and procedures required by this chapter to patients, residents and their authorized appointed health care decision-makers;

(c)Determine on admission whether the patient or resident has an advance health care directive and, if not, determine whether the patient or resident wishes to formulate one;

(d)Document their finding regarding the patient or resident’s advance health care directive in a prominent part of the patient or resident’s medical record and include a copy of relevant documents in the medical record; 

(e)Incorporate the patient’s or resident’s informed health care decisions regarding these rights into treatment, care and services;

(f)Identify, clarify and periodically review, as part of the comprehensive care planning process, the patient’s or resident’s informed health care decisions and existing care instructions and document whether the patient or resident wishes to change or continue these decisions or instructions;

(g)Establish mechanisms for documenting and communicating the patient or resident’s informed health care decisions to the interdisciplinary team;

(h)Identify and establish internal procedures meeting the standards required by section 15 of chapter 201D for handling situations in which a provider or employee thereof is permitted under applicable state or federal law to decline to honor  a patient’s or resident’s informed health care decision;

(i)Educate their employees about the requirements of this act and ensure employees comply with the provider’s written policies and procedures.

SECTION 4.   (a) If a competent adult patient or resident, expresses directly or through an advance health care directive, an informed health care decision to refuse health care services, a provider who is aware of the patient’s or resident’s decision shall not treat a patient or resident against the patient or resident’s wishes. 

(b) If a patient or resident is not competent  to make an informed health care decision, a lawful informed health care decision by the patient’s or resident’s authorized appointed health care decision-maker to refuse health care services is equally binding on the provider. 

(c) A provider shall not transfer or discharge a patient or resident for refusing health care services unless the criteria for transfer or discharge outlined in chapter 201D are otherwise met.

SECTION 5. Unwanted medical treatment as defined in this section is not considered medically necessary and a provider shall not bill or seek reimbursement from payers, patients, residents, or an individual’s estate.

SECTION 6. Health Care Consumer Disclosures

(a) To assist health care consumers to make fully informed decisions about their source of health care services, providers shall maintain and disclose to consumers and payers their written policies outlining the extent to which not honor advance health care directives or participate in specific informed health care decisions based on individual or corporate objections.   This Health Care Consumer Disclosure shall at minimum:

(i)include information about the Health Care Consumer Protection Act;

(ii)identify the state and federal legal authority permitting such objections;

(iii)identify the specific health care services in which they refuse to participate;

(iv)clarify any difference between corporate objections and those that may be raised by individual licensed providers who are employed or work on contract with the provider;

(v)describe the mechanism the provider will use to provide patients a referral to another provider or provider in the provider’s service area who is willing to perform the specific health care service;

(vi)describe the provider’s policies and procedures relating to transferring patients to other providers who will implement the health care decision;

(vii)inform consumers that the cost of such transfer will be borne by the transferring provider;

(viii)describe the internal and external consumer complaint processes available to persons affected by the provider’s objections.

(b) The Health Care Consumer Disclosure shall be given:

(i)to any person upon request;

(ii)to a patient or resident or their authorized appointed health care decision-maker prior to enrollment with a carrier  or assignment to attending health care practitioner, at the time of admission, or at the time of initial receipt of health care services;

(iii)to health care consumers on the provider’s Internet website.

SECTION 7. Notwithstanding any other law, no health care provider meeting the medical standard of care shall be subject to criminal liability, civil liability, or be deemed to have engaged in unprofessional conduct, for carrying out in good faith an informed health care decision of a competent adult patient or resident pursuant to this chapter, even if the patient or resident’s decision is to advance the time of death. 

SECTION 8.  Informed health care decisions in accordance with this chapter  shall not for any purpose:  (a) constitute suicide, assisting suicide, mercy killing, homicide, euthanasia, neglect or elder abuse under the law; (b) be grounds for housing discrimination or eviction; (c) affect the sale, procurement or issuance of a life insurance policy; or (d) modify the terms of, legally impair, or invalidate an existing life insurance policy.

SECTION 9. The director shall establish, in consultation with the state survey and certification agency  a system through which individuals and their authorized appointed health care decision-makers may file complaints about a provider’s non-compliance with the standards set forth in this chapter.

SECTION 10.  Compliance with sections 3 through 6 shall be a condition of state licensure or certification.