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Death with Dignity: Right-to-Die Issues in Senior Care and Housing

AHLA 2016 Long-Term Care and the Law Conference February 24, 2016 Orlando, Florida

Session HH

Pamela S. Kaufmann, Partner, Hanson Bridgett LLP Gabriela Sanchez, Shareholder, Lane Powell PC

I. National Right-to-Die Movement

A. States with death-with-dignity (“DWD”) laws:

1. Statutes:

a. Oregon (see Appendix B)

i. Oregon Death With Dignity Act, ORS Chapter 127.

ii. First DWD law in the nation.

iii. Ballot initiative approved by voters in 1994.

iv. In 1997, voters defeated a ballot initiative to repeal bill.

v. Bill took effect in 1998.

vi. Bill has withstood legislative (federal and state) and court

challenges. See Section I.C.2.b.i. re 2006 Supreme Court

ruling that OR physicians can prescribe life-ending

medications under the Act.

b. Washington (see Appendix C)

i. Washington Death With Dignity Act, Chap. 70:245 RCW.

ii. Ballot initiative approved by voters in 2008; effective 2009

iii. Based on Oregon statute.

c. Vermont

i. Vermont Patient Choice and Control at the End of Life Act,

12 VSA Chapter 113.

ii. Took effect in 2013. Sunset provision on certain patient

safeguards was removed in 2015.

iii. Passed through legislation, not ballot initiative.

iv. Based on OR and WA laws.

2. Case law

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a. Montana Supreme Court ruled in favor of death with dignity in

2009 case, Baxter v. Montana, Mont. Sup. Ct., 2009 MT 449, 354

Mont. 234, 224 P. 3d 1211 (2009).

b. Court ruled (5-2) that nothing in MT law prohibited a physician

from honoring a terminally ill, mentally competent patient’s request

by prescribing medication to hasten the patient’s death.

c. Ruling cited MT’s Rights of the Terminally Ill Act. Because there

is little difference as a matter of public policy between taking a

patient off life support and prescribing lethal medication that the

patient can take, the Court determined that existing MT law

permits physician-assisted suicide under the circumstances of

Baxter.

d. In response to Baxter, a Death with Dignity Act, SB 167, and a bill

prohibiting aid in dying were introduced in the MT legislature for

the first time. Neither law passed; similar later efforts were

unsuccessful.

B. California bill: End of Life Option Act (“EOLA”) (see Appendix D).

1. Governor Brown signed AB x2-15, the California End of Life Option Act,

into law October 5, 2015. (See Appendix E for letter Brown issued

regarding his decision.)

2. Bill would add Section 443 et seq. to California Health and Safety Code

(“H&SC”).

3. Statute is scheduled to take effect 90 days after Governor closes special

legislative session in which the bill was passed.

4. In January 2016, opponents of bill announced they failed to gather

enough signatures for a November ballot measure to overturn new law.

5. Law is based largely on OR law, with some state-specific distinctions.

6. See Appendix F for summary of issues relevant to senior care and

housing.

C. Nationwide effort to pass statutes in 46 states without a DWD statute:

1. Death With Dignity National Center (Portland, OR).

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a. Section 501(c)(3) organization that promotes DWD laws

nationwide based on Oregon model. See:

www.deathwithdignity.org.

b. Also provides information, education, and support about DWD as

an end-of-life option to patients, family members, legislators,

advocates, healthcare and end-of-life care professionals, media,

and the public.

c. Reportedly introduced 26 DWD bills in 2015.

d. In existence since 1993; current organization is the product of a

2003 merger between Oregon Right to Die and Oregon Death with

Dignity Legal Defense and Education Center (“ODLDEC”).

2. Death With Dignity Political Fund (sister organization).

a. Section 501(c)(4) organization; political arm of National Center.

b. Achievements claimed to date:

i. Wrote, passed and defended Oregon DWD law (1994,

1997, 2006). From 2001 to 2006, it defended OR law

against U.S. Attorney General John Ashcroft, who

attempted to block it by authorizing federal drug agents to

prosecute doctors who prescribed life-ending medication to

terminally ill patients.

U.S. Supreme Court upheld DWD law (6 to 3) in Gonzales v.

Oregon, 546 U.S. 243 (2006), ruling that Ashcroft overstepped

his authority in attempting to prosecute Oregon’s physicians

and pharmacists.

ii. Spearheaded successful efforts to pass DWD laws in

Washington (2008), Vermont (2013), and California (2015).

iii. Led Maine (2000), Hawaii (2002), and Mass. DWD (2012)

campaigns, which were all defeated by narrow margins.

c. Drafts all DWD bills law based (to extent possible) on Oregon

model.

d. Campaigns, lobbies and advocates for DWD laws in 46 states.

e. Defends DWD bills from legal challenge.

f. Works directly with legislators; coaches sponsors and witnesses

g. Works largely behind the scenes; partners with grassroots orgs.

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h. Currently working with grassroots groups in Illinois, Maine, New

Hampshire, New York, Ohio, Texas, and Virginia, and advocates

in Arizona, Massachusetts, Michigan, and other states.

3. Brittany Maynard Matter.

a. 29-year-old California woman with terminal brain cancer moved to

Oregon to die under Oregon’s DWD law. Died in November 2014.

b. Openly advocated for passage of DWD law nationally.

c. Brought great visibility to DWD cause and CA bill.

d. Brittany’s mother testified at CA legislative session.

II. Comparison of Right-to-Die Laws in CA, OR and WA A. Comparison chart: See Appendix A.

B. “Health care providers” and application of DWD laws to different care settings

1. California

a. Defined to include health facilities (e.g., general acute care

hospitals, hospice facilities, and SNFs).

b. Are insulated from liability when they participate in:

i. Determining diagnosis or prognosis of an individual.

ii. Determining capacity of an individual under the Act.

iii. Providing information to an individual regarding the Act.

iv. Providing a referral to a physician who participates in

activities under the Act.

c. HCPs can also prohibit employees and independent contractors

from participating in these activities when they act: 1) on premises

that the provider owns, manages, or directly controls; or (2) in the

course and scope of their employment or contracted services.

i. HCP must give staff and contractors notice of its policy

before implementing it.

ii. Once it does, it may take corrective action

against employees or independent contractors who violate

its policy.

d. Act is silent about residential care facilities for the elderly (RCFEs)

and unlicensed housing.

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e. HCP provision does not protect RCFES, the residential portion of

continuing care retirement communities (CCRCs) or multilevel

retirement communities (MLRCs) from liability if they participate —

or refuse to participate — in activities that HCPs may engage in

under the Act.

f. ALFs and ILFs do NOT lose the rights of any person under the Act

to be present when a resident takes an aid-in-dying drug.

2. Oregon

a. Applies to “health care facilities.” Act does not define term.

i. OAR 333-009-0000, defines “health care facilities” as

having the meaning under ORS 442.015 which includes a

hospital, ambulatory center, long-term care facility (skilled

nursing facility, nursing facility, and renal dialysis center.

assisted living facilities, residential care facilities (RCFs),

and independent living providers are not considered health

care facilities.

b. The Act insulates Health Care Providers and Health Care

Facilities from liability for participating in the Act, choosing not to

participate in the Act, or prohibiting others form participating in the

Act.

c. Creates ambiguity as to applicability of statute (including

protections) to AL, RCF, and IL. Oregon Department of Human

Services (“DHS”) has not issued any guidance on the issue.

d. Despite ambiguity, practice over last 17 years has been to treat

AL/RCF as having the same rights as SNF/NF. Not a particular

area of focus for Department.

3. Washington

a. Similar to Oregon. WAC 246-98-020 does not define “health care

facility.” However, in the context of a long-term care facility’s

obligation to identify a witness to attest to patient’s competency, it

defines long-term care facility as including skilled nursing facilities,

nursing facilities, and veteran’s homes. ALFs or other providers

are not mentioned in the definition.

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b. Further, RCW 70.02.010(6) defines “Health Care Facilities” as

including nursing homes, not ALFs.

c. Similar to Oregon re treatment of AL/RCF . No guidance from

Washington Department of Social and Human Services (“DSHS”),

but not a particular focus for DSHS. AL/RCF is treated on a case-

by-case basis, but mostly treated same as SNF/NF.

Recommendation is to have clear policies for all facilities,

including whether the facilities allows participation in the Act.

C. Questions in CA for ALF (RCFE) providers:

1. Can an RCFE require residents to disclose their end-of-life plans? No;

however, residents are encouraged to share their plans with licensees.

2. Can RCFEs prohibit residents from self-administering aid-in-dying drugs

on their campus? No. Resident becomes solely responsible to obtain

and prepare aid-in-dying drug. and may store it himself even if RCFE has

central storage of medications. Person with custody or control of unused

aid-in-dying drug must assure it is disposed of after resident’s death.

3. Can an RCFE centrally store the drug? Yes, but it cannot mandate central

storage.

4. Can it prohibit staff and contractors from participating in activities in which

HCPs may engage (or refuse to engage) under the Act? Yes.

5. Must an ALF/RCFE call "911" if a resident is found dying after ingesting

an end-of-life drug? DSS has not yet answered this question.

See Appendix J for recent guidance from Department of Social Services re

RCFEs.

D. Unlicensed housing providers and RCFEs should ID best practices and consult

their insurers.

E. Challenges applying DWD law to assisted living and housing in OR

1. Same concerns as articulated in California, but from a practical

perspective, AL/RCF/IL is not facing citations from DHS or care lawsuits

from families or residents.

a. Probably due to small incidence of residents choosing to

participate in DWD in these settings.

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b. If residents are that ill, they are usually in hospice or in skilled

nursing. Also, practice has been to treat these providers as having

the same protections as SNFs and NFs.

F. Challenges applying DWD law to assisted living and housing in WA

1. Same as California and Oregon.

III. Honoring Ethical Objections A. By provider

1. Objections may be religious, ethical, or cultural; similar to DNR issues.

2. Laws specifically allow HCPs to refuse to “participate” in aid-in-dying and

to prohibit staff from participating in such decisions under specific

conditions.

3. California law

a. HCP may prohibit employees AND independent contractors from

participating in aid-in-dying activities when they act: (i) on

premises provider owns, manages, or directly controls; or (ii) in

course or scope of employment or contracted services.

b. HCP must give staff and contractors notice of its policy before

implementing it; once it does, it may take corrective action if the

employee or contractor violates the policy. [H&SC Section

443.15].

4. Oregon law

a. A HCP is under no duty, whether by contract, statute or other legal

requirement, to participate in the provision to a qualified patient of

any aid-in-dying medication. Any unwilling provider must transfer

care to another willing provider.

b. HCP can avoid participation for any reason, whether ethical,

religious, or moral.

5. Washington law

a. Same as Oregon

B. By staff

1. Staff may object even where HCP does not.

2. Protects religious employees in a secular organization.

3. California law:

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a. Participation in aid-in-dying activities is voluntary. A person who

elects by reason of conscience, morality, or ethics, not to engage

in activities authorized by Act is not required to take any action in

support of an individual’s DWD decision. [H&SC Section

443.14(e)(1)].

b. HCP may not subject individual to any censure, discipline, or

penalty for participating in good faith compliance with Act or

refusing to participate. [H&SC Section 443.14(b)]

4. Oregon law:

a. By Staff

i. Unlike California, no specific protection for individuals if

they choose not to participate in the Act or assist in

participation in the Act; however, the practice (particularly

in employment settings) is to allow employees or staff who

object to participation to decline to participate.

ii. Also, the Act does provide that no professional

organization or HCP, may subject a person to censure,

discipline, loss of license, loss of privileges or membership

or other penalty for refusing to participate in good faith in

the Act.

5. Washington law

a. Same as Oregon.

IV. Resident Rights Issues if Provider Does Not Participate in Right-to-Die Decisions

A. Federal Rights: Medicare/Medicaid

1. Requirement of Participation (42 CFR 483).

a. Resident has right to exercise his or her rights as a resident of the

facility and as a citizen of the US;

b. Resident has a right to be free of interference, discrimination, and

reprisal from facility for exercising rights;

c. The facility must promote care for residents in a manner and in an

environment that maintains or enhances each resident's dignity

and respect in full recognition of his or her individuality;

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d. Resident has right to make choices about aspects of his or her life

in the facility that are significant to the resident.

B. State Rights

1. California:

a. Residential Care Facility for the Elderly Law (22 California Code of

Regulations Section 87468): right to “receive or reject medical

care or health-related services.”

b. Continuing Care Contract Statutes (H&SC Section 1771.7): right

“to live in an environment that enhances personal dignity,

maintains independence, and encourages self-determination.

c. Skilled Nursing Facility Licensing Law (22 California Code of

Regulations Section 72527 [confirm]): rights to (i) “be treated with

consideration, respect and full recognition of dignity and

individuality, including privacy in treatment and in care of personal

needs;” (ii) “consent to or to refuse any treatment or procedure;”

(iii) receive all information that is material to an individual patient's

decision concerning whether to accept or refuse any proposed

treatment or procedure;” and (iv) “be treated with consideration,

respect and full recognition of dignity and individuality, including

privacy in treatment and in care of personal needs.”

2. Oregon

a. SNF/NF Rules (OAR 411-085-0310): Resident rights:

1. Be encouraged and assisted while in the facility to exercise

rights as a citizen or resident of Oregon and of the United

States;

2. Be fully informed, orally and in writing, in a language the

resident understands, of these rights, and of all facility

guidelines for resident conduct and responsibilities. This

must be documented by the resident's written

acknowledgment, before or at the time of admission.

3. The facility staff must encourage the resident to exercise

the right to make his or her own decisions and fully

participate in care and care planning unless the resident

has been found legally incapable of doing so.

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4. Be free of retaliation. After the resident, or the resident's

legal representative, has exercised rights provided by law

or rule, the facility, or any person subject to the

supervision, direction, or control of the facility, shall not

retaliate by:

(a) Increasing charges or decreasing services, rights,

or privileges;

(b) Threatening to increase charges or decrease

services, rights, or privileges;

(c) Taking or threatening any action to coerce or

compel the resident to leave the facility; or

(d) Abusing, harassing, or threatening to abuse or

harass a resident;

5. The facility shall not accept or retain residents whose care

needs cannot be met by the facility (OAR 411-086-0040);

6. Each resident shall be provided the following information

and materials in written form within five days of admission,

but in any event before discharge:

(a) A copy of "Your Right to Make Health Care

Decisions in Oregon," copyright 1991, by the Oregon State Bar Health Law Section, which

summarizes the rights of individuals to make health

care decisions, including the right to accept or

refuse any treatment or medication and the right to

execute directives and powers of attorney for health

care;

(b) Information on the facility's policies with respect to

implementation of those rights.

b. AL/RCF Rules (OAR 411-054-0027): Resident rights:

1. To be treated with dignity and respect;

2. To be given informed choice and opportunity to select or

refuse service and to accept responsibility for the

consequences;

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3. To exercise individual rights that do not infringe upon the

rights or safety of others;

4. To receive services in a manner that protects privacy and

dignity;

5. To be encouraged and assisted to exercise rights as a

citizen;

6. To be free of retaliation after they have exercised their

rights provided by law or rule;

7. To have a homelike environment.

c. Incidence of resident transfer or complaints is negligible; not a

focus of enforcement for DHS; biggest issue is not having a policy

or being upfront at admission about policies on DWD.

3. Washington

a. SNF/NF and AL: Resident rights:

i. to a dignified existence and self-determination (WAC 388-

97-0180);

ii. to exercise his or her rights as a resident of the nursing

home and as a citizen or resident of the United States

(WAC 388-97-0180);

iii. to be free of interference, coercion, discrimination, and

reprisal from the nursing home in exercising his or her

rights (WAC 388-97-0180);

iv. to receive, before admission, or at the time of admission in

the case of an emergency, all rules and regulations

governing resident conduct, resident's rights and

responsibilities during the stay in the nursing home (WAC

388-97-0280);

v. for facility to promote care for residents in a manner and in

an environment that maintains or enhances each resident's

dignity and respect in full recognition of his or her

individuality;

vi. to make choices about aspects of his or her life in the

facility that are significant to the resident;

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vii. to choose activities, schedules, and health care consistent

with his or her interests, assessments, and plans of care.

V. Data About Incidence and Circumstances of Assistedm Suicide in WA and OR A. Oregon

1. See Appendices for data.

2. Overall, data from Oregon Health Authority show few patients consuming

aid-in-dying medication in long-term care settings. Numbers of

prescriptions and patients consuming drugs are increasing, but still small

numbers relative to overall population.

B. Washington

1. See Appendices for Data.

2. Similar trends as Oregon

VI. Federal Funding for Aid in Dying A. Federal aid not available for DWD (no Medicare, no federal Medicaid dollars), but

Medicare can be used to pay for end-of-life planning including learning about

end-of-life options, including DWD, what option works best for the person, and

discussing options with family.

B. Oregon

1. Oregon Health Plan (Medicaid, but State money only) will pay for DWD

consultations and medication

2. Private insurers may opt in and pay for DWD participation by patients;

many Oregon private health insurers provide DWD participation as a

benefit.

C. Washington

1. Not as advanced as Oregon

2. Mostly DWD counseling and medications are paid privately; a few

insurers provide benefits.

VII. Recommendations; Best Practices for Providers That Wish to Participate in Right-to-Die Decisions A. Recommendations to Providers and their Counsel

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1. Articulate policy in admission agreements and uniform dislcosure

statements at the ouset of the relationship so that residents understand

position. (See Appendix I for model language disclosing policy in

contract.)

2. Discuss and articulate in a written policy their position regarding:

a. The use of aid-in-dying drugs on their campuses, and

b. The involvement, if any, of staff and contractors.

(See Appendices G and H for model policies allowing and disallowing

participation in right-to-die decisions.)

3. Train staff regarding their policy.

4. Disclose their policy to new and existing residents.

5. Develop protocols for addressing end-of-life planning, hospice and

comfort care, mental health issues, grief, and other end-of-life issues with

residents.

B. Best Practices

1. Policies

2. Disclosure

VIII. Appendices A. Comparison Chart: Oregon, Washington, and California Death-With-Dignity Laws

B. Oregon Death with Dignity Act and Relevant Data

C. Washington Death with Dignity Act and Relevant Data

D. California End of Life Option Act

E. Governor Jerry Brown's Letter regarding California's End of Life Option Act

F. Hanson Bridgett Alert re End of Life Option Act’s Impact on Senior Care and Housing

G. Model Facility Policies Allowing Participation in Right-To-Die Decisions

H. Model Facility Policies Disallowing Participation in Right-To-Die Decisions

I. Model Language Disclosing Policy In Residency Contract

J. DSS Memo Regarding Application of California’s End of Life Option Act in RCFEs

Appendix A

Comparison Chart: Oregon, Washington, and California Death With Dignity Laws

Comparison Chart: Oregon, Washington, and California Death with Dignity Laws

Page 1 - Comparison Chart: Oregon, Washington, and California Death with Dignity Laws 11874557.1

OREGON

WASHINGTON

CALIFORNIA

Name of Law: The Oregon Death with Dignity Act (ORS 127.800 to 127.990 and OAR 333-009-0000 to 333-009-0030)

The Washington Death with Dignity Act (RCW 70.245 et. al. and WAC 246-978 et. al.)

End of Life Option Act (ABX2-15)

When Enacted: Enacted in 1997; effective since 1998

Enacted in 2008; effective since 2009 (Modeled After Oregon)

Enacted in 2015; effective 90 days after end of special legislative session (Modeled after Oregon)

What Law Allows:

Allows terminally ill Oregon residents to end lives by obtaining lethal medications from a participating physician

Allows terminally ill Washington residents to end lives by obtaining lethal medications from a participating physician

Allows terminally ill California residents to end lives by obtaining aid-in-dying drugs from participating physician

Who May Participate under the Law:

• Must be 18 years or older and an Oregon resident;

• Capable of making and communicating health care decisions for him/herself;

• Diagnosed with a terminal disease that will lead to death within six months;

• Must self-administer lethal drugs

• Must be 18 years or older and a Washington resident;

• Capable of communicating informed decisions to health care providers;

• Suffering from a terminal disease that will lead to death within six months;

• Must self-administer medication

• Must be 18 years or older and a California resident;

• Capable of understanding the nature and consequence of a health care decision, its significant benefits, risks, and alternatives, and capable of communicating health care decisions to providers;

• Diagnosed with a terminal disease that will lead to death within six months



OREGON

WASHINGTON

CALIFORNIA

Can an Agent under a HCPOA, Guardian, or other Health Care Surrogate Request Lethal Medication?

No, the person must be capable of making and communicating informed decisions, but can communicate decisions through persons familiar with the individual’s manner of communicating (ORS 127.800;127.805)

No, the person has to be competent to make informed decisions, but can communicate decisions through persons familiar with the individual’s manner of communicating (RCW 70.245.010; 70.245.020)

No, request must be made solely and directly by individuals diagnosed with terminal illness (Section 1, Part 1.85, 443.4)

How Request is Made: • Patient makes oral request from attending physician for lethal medication

• Attending physician must confirm patient meets eligibility criteria

• Consulting physician confirms diagnosis, prognosis, and competence

• Second oral request must be made 15 days after first oral request

• Patient must also make written request (statutory form) for medication

• Must wait 48 hours after written request to issue prescription (ORS 127.840)

Same as Oregon (RCW 70.245.090)

• Patient makes two oral requests to attending physician for aid-in-dying drug, a minimum of 15 days apart

• Patient also makes a written request (statutory form) to attending physician

(Section 1, Part 1.85,443.3)



OREGON

WASHINGTON

CALIFORNIA

Must Families be Notified?

No, but physician must recommend that patient notify family or next of kin of request for lethal medication

(ORS 127.835)

No, but physician must recommend that patient notify family of request for lethal medication

(RCW 70.245.080)

No, but physician must counsel patient to notify family of request for aid-in-dying drug

(Section 1, Part 1.85, 443.5(a)(5)(C))

Attending Physician Responsibilities:

• Confirm patient has terminal disease, is capable, and the request is voluntary;

• Request that patient demonstrate Oregon residency;

• Inform patient about diagnosis, prognosis, risks of lethal medication, alternatives (hospice/palliative care); refer to consulting physician;

• Refer to counseling if suffering from mental health or depression;

• Recommend notification to next of kin;

• Counsel patient about having another person present when taking medication and not taking in a public place; Explain right to rescind request at any time;

Same as Oregon

(RCW 70.245.040)

• Confirm patient has capacity to make medical decisions and has a terminal disease;

• If suffering from mental health issues, refer to mental health specialist (no aid-in-dying medication may be prescribed until mental health specialist determines patient has capacity and isn’t suffering from impaired judgment);

• Inform patient of diagnosis and prognosis, risks and result of taking medication, about not having to take medication, alternatives such as hospice and palliative care;

• Refer to a consulting physician



OREGON

WASHINGTON

CALIFORNIA

• Verify immediately before writing prescription that patient is making an informed decision;

• With patient’s permission, contact pharmacist about prescription and personally or by mail deliver or by prescription to pharmacist

(ORS 127.815)

• Confirm that request is not result of coercion or undue influence

• Counsel patient about having another person present when taking medication and not taking in public place;

• Recommend that patient notify next of kin;

• Recommend participation in a hospice program;

• Counsel patient on safe storage of medication;

• Inform patient about right to rescind request at any time;

• Offer opportunity to rescind request before prescribing medication;

• Verify immediately before writing prescription that patient is making an informed decision;

• Complete forms required by state and send to State Department of Public Health;

• Give patient final attestation form (Statutory Form) with instruction to complete and



OREGON

WASHINGTON

CALIFORNIA

sign it within 48 hours of choosing to take medication

• Physician may dispense medication directly if allowed to under law or send prescription to pharmacist by personal delivery, by mail, or electronically

• May deliver medication to patient, attending physician, or person designated by patient (Section 1, Part 1.85, 443.5)

Consulting Physician Confirmation:

• Examine patient and medical record, confirm in writing attending physician’s diagnosis that patient is suffering from a terminal disease, and verify patient is capable, acting voluntarily, and making an informed decision;

• Refer patient to counseling if suffering from mental health disorder causing impaired

Same as Oregon

(RCW 70.245.040)

• Examine patient and medical records, confirm in writing attending physician’s diagnosis and prognosis;

• Confirm that patient has capacity to make medical decisions, is acting voluntarily, and is making an informed decision;

• If mental disorder, refer to mental health specialist;



OREGON

WASHINGTON

CALIFORNIA

judgment (no medication may be prescribed until the counselor determines the patient is not suffering from a mental health condition impairing judgment) (ORS 127.820)

• Submit compliance form to attending physician (Section 1, Part 1.85, 443.6)

Informed Decisions: Means a decision by a capable adult who is a resident of Oregon who understands and is fully informed of the following: • His/her diagnosis and

prognosis; • Potential risks of taking

medication; • Probable result of taking

medication; • Feasible alternatives (hospice,

pain control, palliative care, refusing hydration and nutrition). (ORS 127.800(7); 127.830)

Means a decision made by an adult who has the ability to make and communicate decisions about care that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of: • His/her diagnosis/ prognosis; • Potential risk of taking

medication; • Probable result of taking

medication; • Feasible alternatives

(hospice, pain control, refusing hydration and nutrition). (RCW 70.245.010(3) and (11) and RCW 70.245.070)

Means a decision made by an individual with a terminal disease to request and obtain aid-in-dying medication that the individual may self-administer to end his/her life, that is made after being fully informed by the attending physician of the following: • His/her diagnosis/

prognosis; • Potential risks of taking

medication; • Probable results of taking

medication; • Possibility that individual

may choose not to obtain drug or obtain it but not take it;

• Feasible alternatives or additional treatments



OREGON WASHINGTON CALIFORNIA

(comfort care, palliative care, hospice, pain control).

(Section 1, Part 1.85, 443.1(i) and 443.9)

Form of Written Request and Witnesses:

• Request must be in writing(statutory form);

• Signed and dated by patient,and witnessed by at least twoindividuals who, in thepresence of the patient, attestthat to the best of theirknowledge the patient iscapable, acting voluntarily,and is not being coerced tosign the request;

• One of the witnesses mustnot be a relative of the patientby blood, marriage, oradoption; a person entitled toany portion of the patient’sestate; an owner, operator, oremployee of health carefacility where the resident isreceiving medical care or is aresident; or an attendingphysician

• If the patient is a resident of along term care facility at time


• Signed and dated by patientand witnessed by at leasttwo individuals who, in thepresence of the patient,attest that to the best of theirknowledge the patient iscompetent, actingvoluntarily, and is not beingcoerced to sign the request;

• One of the witnesses mustnot be a relative of thepatient by blood, marriage,or adoption; a personentitled to any portion of thepatient’s estate; an owner,operator, or employee ofhealth care facility where theresident is receiving medicalcare or is a resident; or anattending physician

• If the patient is a resident ofa long term care facility at


• Signed and dated bypatient in presence of twowitnesses

• Two witnesses must beadults, who personallyknow the patient or whohave been provided proofof identity; who personallywitness patient sign requestform; who attest that thepatient is of sound mind,not under duress, fraud orundue influence

• Only one of the witnessesmust not be related topatient by blood, marriage,domestic partnership,adoption, or be entitled toany portion of the patient’sestate;

• Only one of the witnessesmay be an owner, operator,



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written request is made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified ty the Department of Human Services by rule.

• ORS 442.015(18) excludes assisted living facilities from definition of “Long Term Care Facilities” (ORS 127.810)

time written request is made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified ty the Department of Health by rule.

• WAC 246-978-040: The witness designated by the long term care facility may be, but is not limited to, an ombudsman, chaplain, or social worker, but may not be: (1) a relative of the patient; (2) a person entitled to any portion of the resident’s estate; or (3) an owner, operator, or employee of a long term care facility where the patient is a resident

• “Long Term Care Facility” means a facility licensed under Chapter 11.51(Nursing Facilities) or 72.36(Veteran’s Homes) (RCW 70.245.030; WAC 246-978-010(11))

or employee of health care facility where patient is receiving medical care or resides

• The attending physician, consulting physician, or mental health specialist may not be a witness (Section 1, Part 1.85, 443.3)



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Medical Record Documentation Requirements:

Attending Physician must document the following in the patient’s medical record: • All oral and written requests

made by patient for lethal medication

• Attending physician diagnosis and prognosis, determination that patient is capable, acting voluntarily, and has made an informed decision;

• Consulting physician’s diagnosis and prognosis verification that patient is capable, acting voluntarily, and has made an informed decision;

• A report of the outcome and determinations of mental health counseling if performed;

• Attending physician’s offer to patient to rescind request at time of second oral request;

• Documentation that all requirements of Oregon law have been met and the medication prescribed (ORS 127.855)

Same as Oregon

(RCW 70.245.120)

Attending Physician must document the following in the patient’s medical record: • All oral and written requests

for aid-in-dying drugs; • Diagnosis and prognosis,

and the determination that patient has capacity to make medical decisions, is acting voluntarily, and has made an informed decision (or that the patient has not met this requirement);

• Consulting physician’s diagnosis and prognosis, and verification that the patient has capacity and is acting voluntarily and has made an informed decision;

• A report of the outcome and determinations made during a mental health assessment if performed;

• The offer to the patient to withdraw or rescind request for medication at time of second request;

• A note indicating that all requirements of California law have been met, and the



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drug prescribed; • The Final Attestation.

(Section 1, Part 1.85, 443.9 and 443.11(c)(2))

Who Must Be Present During Administration of Lethal Medication:

No requirement that someone else be present or that attending doctor be present at time of ingestion; however, attending doctor should recommend having someone present during ingestion of medication (ORS 127.815(h))

Same as Oregon (RCW 70.245.040(1)(g))

Same as Oregon (Section 1, Part 1.85, 443..5(a)(5)(A))

What is Meant by “Self-Administer”:

Not defined by law. Left to providers to define through policies and standards how much assistance will be provided to patient to self-administer medication. Provider should be certain that patient remains in control of decision, timing and every aspect of the action. (Practice is to allow third party to crush pills, hold straw up to patient’s lips, put pill in mouth, but patient must ingest on his/her own).

“Self-Administer” means a qualified patient’s act of ingesting medication to end his or her life.” WAC 46-978-010(16)

“Self-Administer” means the patient’s affirmative, conscious, and physical act of administering and ingesting the aid-in-dying drug to bring about death. (Section 1, Part 1.85, 443.1 (p))



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Disposal of Medication:

Not addressed by law. Any medication that was not self-administered shall be disposed of by lawful means.

(RCW 70.245.130)

Any person who has custody or control of aid-in-dying drugs shall personally deliver unused medications for disposal by delivering it to nearest facility that disposes of controlled substances or dispose in accordance with California State Board of Pharmacy guidelines or DEA approved take-back program.

(Section 1, Part 1.85, 443.20)

Reporting Requirements to State Agencies:

• Attending physician and health care provider dispensing medication must meet certain reporting requirements, including providing certain documents to state agency regarding compliance with law within specified periods of time;

• All information collected by the state, including identities of patients, physicians, other health care providers and facilities shall not be a public record and are not available

• Attending physician and health care provider dispensing medication must meet certain reporting requirements, including providing certain documents to state agency regarding compliance with law within specified periods of time;

• All information collected by the state shall not be a public record and is not available for inspection. This includes identity of patients, health care

• Attending physician must meet certain reporting requirements, including providing certain documents to state agency regarding compliance with law within specified periods of time;

• All information collected by state shall be confidential and be collected in a manner that protects the privacy of the patient. The information shall not be disclosed, discoverable, or



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for inspection by the public. (ORS 127.865; OAR 333-009-0010; OAR 333-009-0030)

providers, and health care facilities. (RCW 70.245.140 an WAC 246-978-030)

compelled to be produced in any civil, criminal, administrative, or other proceeding. (Part 1, Section 1.85, 443.9 and 443.19)

Effect on Wills and Contracts:

A provision in a contract or will that would affect whether a person may make, withdraw, or rescind a request for lethal medication is not valid

(ORS 127.870)

Same as Oregon

(RCW 70.245.160)

A provision in a contract or will executed after January 1, 2016, that would affect whether a person may make, withdraw, or rescind a request for lethal medication is not valid

(Section, Part 1.85, 443.12)

Insurance or Annuity Policies:

The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or rate charged for such policy shall not be conditioned on or be affected by a patient’s right participate (or not) under the law.

(ORS 127.875)

Same as Oregon

(RCW 70.245.170)

• The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or rate charged for such policy may not be conditioned upon or affected by a person making or rescinding a request for an aid-in-dying drug;

• A death resulting for the ingestion of an aid-in-dying drug is not to be considered suicide and exempt from



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insurance coverage on that basis;

• Death from ingesting an aid-in-dying drug is to be considered a natural death from the underlying disease;

• An insurance carrier cannot provide information to an individual about the availability of aid-in-dying drugs unless requested by the individual or attending physician;

• Insurance carrier cannot provide in one communication a denial of treatment and information about the availability of an aid-in-dying drug. (Section 1, Part 1.85, 443.13)

Immunities for Participation:

• Actions taken in accordance with law shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide;

• Actions taken in accordance with law shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide;

• Actions taken in accordance with law shall not, for any purpose, constitute suicide, assisted suicide, homicide, or elder



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• No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with the law; this includes being present when the patient takes the medication to end his/her life;

• No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating in good faith with the law. (ORS 127.880; 127.885)

• No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with the law; this includes being present when the patient takes the medication to end his/her life;

• No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating in good faith with the law. (RCW 70.245.180; RCW 70.245.190)

abuse under the law; • A person shall not be

subject to civil or criminal liability solely because the person was present when a patient self-administers the prescribed aid-in-dying drug. A person who is present may, without civil or criminal liability, assist the patient by preparing the aid-in-dying drug so long as the person does not assist the patient to ingest the drug.

• A health care provider or professional organization or association shall not subject an individual to censure, discipline, suspension, loss of license, loss of privileges, or other penalty for participating in good faith compliance with the law;

• A health care provider shall not be subject to civil, criminal, or other disciplinary action or liability for participating in the law



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or referring patients to a participating provider;

• No actions taken in compliance with the law shall constitute or provide the basis for a claim of neglect or elder abuse. (Section 1, Part 1.85, 443.18; 443.14)

Immunities for Not Participating:

• No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for refusing to participate in good faith with the law;

• No health care provider/facility shall be under any duty to participate in providing lethal medication to a qualified patient;

• A health care provider/facility may prohibit another health care provider from participating in the law on its premises provided that the

• No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for refusing to participate in good faith with the law;

• Only willing health care providers shall participate in providing medication to end life to a qualified patient;

• A health care provider/facility may prohibit another health care provider from participating in the law on its premises provided the

• A health care provider or professional organization or association shall not subject an individual to censure, discipline, suspension, loss of license, loss of privileges, or other penalty for refusing to participate under the law;

• Participation in the law is voluntary and no person or entity is required to participate if such person or entity elects not to because of reasons of conscience, morality, or ethics, and such entity or person is not required to take any action in support of another’s



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prohibiting provider has notified the health care provider of the policy in advance of participation;

• A prohibiting provider may sanction a health care provider for failing to comply with policy prohibiting participation in the law. (ORS 127.885)

prohibiting provider has notified all health care providers with privileges to practice on the premises about the prohibition and has provided notice to the general public about the prohibition;

• A prohibiting provider may sanction another health care provider for failing to comply with policy prohibiting participation in the law. (RCW 70.245.190)

choice to participate in the law;

• A health care provider may prohibit its employees, independent contractors, or other persons or entities, including other health care providers, from participating in the law on its premises or premises it manages or under its direct control; to do so, the prohibiting provider must provide notice of the policy prohibiting participation to the individual or entity or it cannot enforce the policy;

• A prohibiting provider may sanction another entity or individual for failing to comply with policy prohibiting participation in the law. (Section 1, Part 1.85, 443.14, 443.15)



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What is Considered “Participation” under the Law:

• Performing duties of attending physician, consulting physician, or mental health counselor;

• Does NOT include:

- Making initial determination that patient has a terminal illness and prognosis;

- Providing information on the law to patient who requests information;

- Referring to another physician; or

- Patient contracting with attending or consulting physician to act outside the scope of the provider’s capacity prohibiting participation in the law.

(ORS 127.885(d)(B))

Same as Oregon

(RCW 70.245.190)

• Performing duties of attending physician, consulting physician, or mental health specialist under the law;

• Delivering prescription for, dispensing, or delivering the aid-in-dying medication under the law;

• Being present during ingestion of the aid-in-dying medication

• Does NOT include:

- Diagnosing a terminal disease, the prognosis, or determining that the patient has capacity to make decisions;

- Providing the patient information about the law; or

- Referring that patient to a participating provider.

(Section 1, Part 1.85, 443.15)



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What Type of “Health Care Facility” is subject to Law:

• ORS 127.800(6), defines “Health Care Provider” as a person licensed, certified, or otherwise authorized to administer health care or dispense medication in the ordinary course or practice and includes a health care facility;

• OAR 333-009-0000(9) defines “Health Care Facility” as including a long term care facility, but not a residential care facility or assisted living facility;

• Skilled Nursing, Nursing Facilities, and Veteran’s Homes are considered Health Care Facilities;

• Assisted Living, Residential Care Facilities, or Senior Housing are not

• RCW 70.245.010(6), defines “Health Care Provider” as a person licensed, certified, or otherwise authorized to administer health care or dispense medication in the ordinary course or practice and includes a health care facility;

• RCW 70.02.010(6) defines “Health Care Facilities” as including nursing homes, not assisted living facilities;

• WAC 246-978-010 (11), defines a “Long Term Care Facility” as including Skilled Nursing Facilities, Nursing Facilities, and Veteran’s Homes;

• Assisted Living Facilities are excluded from “Long Term Care” definition and as Health Care Facility

• California law defines “Health Care Provider” as any clinic, health dispensary, or health facility licensed pursuant to Division 2; this includes skilled nursing providers but not assisted living providers (Section 1, Part 1.85, 443.1)

Appendix B

Oregon Death with Dignity Act and Relevant Data

THE OREGON DEATH WITH DIGNITY ACT

OREGON REVISED STATUTES

(General Provisions)

(Section 1)

Note: The division headings, subdivision headings and lead lines for 127.800 to 127.890, 127.895 and 127.897 were enacted as part of Ballot Measure 16 (1994) and were not provided by Legislative Counsel.

127.800 §1.01. Definitions. The following words and phrases, whenever used in ORS 127.800 to 127.897, have the following meanings:

(1) "Adult" means an individual who is 18 years of age or older.

(2) "Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.

(3) "Capable" means that in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, psychiatrist or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available.

( 4) "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.

(5) "Counseling" means one or more consultations as necessary between a state licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is capable and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

(6) "Health care provider" means a person licensed, certified or otherwise authorized or permitted by the law of this state to administer health care or dispense medication in the ordinary course of business or practice of a profession, and includes a health care facility.

(7) "Informed decision" means a decision by a qualified patient, to request and obtain a prescription to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of:

(a) His or her medical diagnosis;

(b) His or her prognosis;

(c) The potential risks associated with taking the medication to be prescribed;

(d) The probable result of taking the medication to be prescribed; and

(e) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control.

(8) "Medically confirmed" means the medical opinion of the attending physician has been confirmed by a consulting physician who has examined the patient and the patient's relevant medical records.

(9) "Patient" means a person who is under the care of a physician.

(10) "Physician" means a doctor of medicine or osteopathy licensed to practice medicine by the Board of Medical Examiners for the State of Oregon.

(11) "Qualified patient" means a capable adult who is a resident of Oregon and has satisfied the requirements of ORS 127.800 to 127.897 in order to obtain a prescription for medication to end his or her life in a humane and dignified manner.

(12) "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. [1995 c.3 §1.01; 1999 c.423 §1]

(Written Request for Medication to End One's Life in a Humane and Dignified Manner)

(Section 2)

127.805 §2.01. Who may initiate a written request for medication. (1) An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with ORS 127.800 to 127.897.

(2) No person shall qualify under the provisions of ORS 127.800 to 127.897 solely because of age or disability. [1995 c.3 §2.01; 1999 c.423 §2]

127.810 §2.02. Form of the written request. (1) A valid request for medication under ORS 127.800 to 127.897 shall be in substantially the form described in ORS 127.897, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.

(2) One of the witnesses shall be a person who is not:

(a) A relative of the patient by blood, marriage or adoption;

(b) A person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient upon death under any will or by operation of law; or

(c) An owner, operator or employee of a health care facility where the qualified patient is receiving medical treatment or is a resident.

(3) The patient's attending physician at the time the request is signed shall not be a witness.

(4) If the patient is a patient in a long term care facility at the time the written request is made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified by the Department of Human Services by rule. [1995 c.3 §2.02]

(Safeguards)

(Section 3)

127.815 §3.01. Attending physician responsibilities. (1) The attending physician shall:

(a) Make the initial determination of whether a patient has a terminal disease, is capable, and has made the request voluntarily;

(b) Request that the patient demonstrate Oregon residency pursuant to ORS 127.860;

(c) To ensure that the patient is making an informed decision, inform the patient of:

(A) His or her medical diagnosis;

(B) His or her prognosis;

(C) The potential risks associated with taking the medication to be prescribed;

(D) The probable result of taking the medication to be prescribed; and

(E) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control;

(d) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily;

(e) Refer the patient for counseling if appropriate pursuant to ORS 127.825;

(f) Recommend that the patient notify next of kin;

(g) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed pursuant to ORS 127.800 to 127.897 and of not taking the medication in a public place;

(h) Inform the patient that he or she has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15 day waiting period pursuant to ORS 127.840;

(i) Verify, immediately prior to writing the prescription for medication under ORS 127.800 to 127.897, that the patient is making an informed decision;

U) Fulfill the medical record documentation requirements of ORS 127.855;

(k) Ensure that all appropriate steps are carried out in accordance with ORS 127.800 to 127.897 prior to writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and

(L)(A) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort, provided the attending physician is registered as a dispensing physician with the Board of Medical Examiners, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule; or

(B) With the patient's written consent:

(i) Contact a pharmacist and inform the pharmacist of the prescription; and

(ii) Deliver the written prescription personally or by mail to the pharmacist, who will dispense the medications to either the patient, the attending physician or an expressly identified agent of the patient.

(2) Notwithstanding any other provision of law, the attending physician may sign the patient's death certificate. [1995 c.3 §3.01; 1999 c.423 §3]

127.820 §3.02. Consulting physician confirmation. Before a patient is qualified under ORS 127.800 to 127.897, a consulting physician shall examine the patient and his or her relevant medical records and confirm, in writing, the attending physician's diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily and has made an informed decision. [1995 c.3 §3.02]

127.825 §3.03. Counseling referral. If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient's life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. [1995 c.3 §3.03; 1999 c.423 §4]

127.830 §3.04. Informed decision. No person shall receive a prescription for medication to end his or her life in a humane and dignified manner unless he or she has made an informed decision as defined in ORS 127.800 (7). Immediately prior to writing a prescription for medication under ORS 127.800 to 127.897, the attending physician shall verify that the patient is making an informed decision. [1995 c.3 §3.04]

127.835 .§3.05. Family notification. The attending physician shall recommend that the patient notify the next of kin of his or her request for medication pursuant to ORS 127.800 to 127.897. A patient who declines or is unable to notify next of kin shall not have his or her request denied for that reason. [1995 c.3 §3.05; 1999 c.423 §6]

127.840 §3.06. Written and oral requests. In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than fifteen (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request. [1995 c.3 §3.06]

127.845 §3.07. Right to rescind request. A patient may rescind his or her request at any time and in any manner without regard to his or her mental state. No prescription for medication under ORS 127.800 to 127.897 may be written without the attending physician offering the qualified patient an opportunity to rescind the request. [1995 c.3 §3.07]

127.850 §3.08. Waiting periods. No less than fifteen (15) days shall elapse between the patient's initial oral request and the writing of a prescription under ORS 127.800 to 127.897. No less than 48 hours shall elapse between the patient's written request and the writing of a prescription under ORS 127.800 to 127.897. [1995 c.3 §3.08]

127.855 §3.09. Medical record documentation requirements. The following shall be documented or filed in the patient's medical record:

(1) All oral requests by a patient for medication to end his or her life in a humane and dignified manner;

(2) All written requests by a patient for medication to end his or her life in a humane and dignified manner;

(3) The attending physician's diagnosis and prognosis, determination that the patient is capable, acting voluntarily and has made an informed decision;

( 4) The consulting physician's diagnosis and prognosis, and verification that the patient is capable, acting voluntarily and has made an informed decision;

(5) A report of the outcome and determinations made during counseling, if performed;

(6) The attending physician's offer to the patient to rescind his or her request at the time of the patient's second oral request pursuant to ORS 127.840; and

(7) A note by the attending physician indicating that all requirements under ORS 127.800 to 127.897 have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed. [1995 c.3 §3.09]

127.860 §3.10. Residency requirement. Only requests made by Oregon residents under ORS 127.800 to 127.897 shall be granted. Factors demonstrating Oregon residency include but are not limited to:

(1) Possession of an Oregon driver license;

(2) Registration to vote in Oregon;

(3) Evidence that the person owns or leases property in Oregon; or

(4) Filing of an Oregon tax return for the most recent tax year. [1995 c.3 §3.10; 1999 c.423 §8]

127.865 §3.11. Reporting requirements. (1)(a) The Department of Human Services shall annually review a sample of records maintained pursuant to ORS 127.800 to 127.897.

(b) The department shall require any health care provider upon dispensing medication pursuant to ORS 127.800 to 127.897 to file a copy of the dispensing record with the department.

(2) The department shall make rules to facilitate the collection of information regarding compliance with ORS 127.800 to 127.897. Except as otherwise required by law, the information collected shall not be a public record and may not be made available for inspection by the public.

(3) The department shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section. [1995 c.3 §3.11; 1999 c.423 §9; 2001 c.104 §40]

127.870 §3.12. Effect on construction of wills, contracts and statutes. (1) No provision in a contract, will or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication to end his or her life in a humane and dignified manner, shall be valid.

(2) No obligation owing under any currently existing contract shall be conditioned or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner. [1995 c.3 §3.12]

127.875 §3.13. Insurance or annuity policies. The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner. Neither shall a qualified patient's act of ingesting medication to end his or her life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy. [1995 c.3 §3.13]

127.880 §3.14. Construction of Act. Nothing in ORS 127.800 to 127.897 shall be construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with ORS 127.800 to 127.897 shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. [1995 c.3 §3.14]

(Immunities and Liabilities)

(Section 4)

127.885 §4.01. Immunities; basis for prohibiting health care provider from participation; notification; permissible sanctions. Except as provided in ORS 127.890:

(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with ORS 127.800 to 127.897. This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner.

(2) No professional organization or association, or health care provider, may subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating or refusing to participate in good faith compliance with ORS 127.800 to 127.897.

(3) No request by a patient for or provision by an attending physician of medication in good faith compliance with the provisions of ORS 127.800 to 127.897 shall constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator.

( 4) No health care provider shall be under any duty, whether by contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of medication to end his or her life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient's request under ORS 127.800 to 127.897, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider.

(S)(a) Notwithstanding any other provision of law, a health care provider may prohibit another health care provider from participating in ORS 127.800 to 127.897 on the premises of the prohibiting provider if the prohibiting provider has notified the health care provider of the prohibiting provider's policy regarding participating in ORS 127.800 to 127.897. Nothing in this paragraph prevents a health care provider from providing health care services to a patient that do not constitute participation in ORS 127.800 to 127.897.

(b) Notwithstanding the provisions of subsections (1) to (4) of this section, a health care provider may subject another health care provider to the sanctions stated in this paragraph if the sanctioning health care provider has notified the sanctioned provider prior to participation in ORS 127.800 to 127.897 that it prohibits participation in ORS 127.800 to 127.897:

(A) Loss of privileges, loss of membership or other sanction provided pursuant to the medical staff bylaws, policies and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning provider's medical staff and participates in ORS 127.800 to 127.897 while on the health care facility premises, as defined in ORS 442.015, of the sanctioning health care provider, but not including the private medical office of a physician or other provider;

(B) Termination of lease or other property contract or other nonmonetary remedies provided by lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in ORS 127.800 to 127.897 while on the premises of the sanctioning health care provider or on property that is owned by or under the direct control of the sanctioning health care provider; or

(C) Termination of contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in ORS 127.800 to 127.897 while acting in the course and scope of the sanctioned provider's capacity as an employee or independent

contractor of the sanctioning health care provider. Nothing in this subparagraph shall be construed to prevent:

(i) A health care provider from participating in ORS 127.800 to 127.897 while acting outside the course and scope of the provider's capacity as an employee or independent contractor; or

(ii) A patient from contracting with his or her attending physician and consulting physician to act outside the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.

(c) A health care provider that imposes sanctions pursuant to paragraph (b) of this subsection must follow all due process and other procedures the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.

(d) For purposes of this subsection:

(A) "Notify" means a separate statement in writing to the health care provider specifically informing the health care provider prior to the provider's participation in ORS 127.800 to 127.897 of the sanctioning health care provider's policy about participation in activities covered by ORS 127.800 to 127.897.

(B) "Participate in ORS 127.800 to 127.897" means to perform the duties of an attending physician pursuant to ORS 127.815, the consulting physician function pursuant to ORS 127.820 or the counseling function pursuant to ORS 127.825. "Participate in ORS 127.800 to 127.897" does not include:

(i) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;

(ii) Providing information about the Oregon Death with Dignity Act to a patient upon the request of the patient;

(iii) Providing a patient, upon the request of the patient, with a referral to another physician; or

(iv) A patient contracting with his or her attending physician and consulting physician to act outside of the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.

(6) Suspension or termination of staff membership or privileges under subsection (5) of this section is not reportable under ORS 441.820. Action taken pursuant to ORS 127.810, 127.815, 127.820 or 127.825 shall not be the sole basis for a report of unprofessional or dishonorable conduct under ORS 677.415 (2) or (3).

(7) No provision of ORS 127.800 to 127.897 shall be construed to allow a lower standard of care for patients in the community where the patient is treated or a similar community. [1995 c.3 §4.01; 1999 c.423 §10]

Note: As originally enacted by the people, the leadline to section 4.01 read "Immunities." The remainder of the leadline was added by editorial action.

127.890 §4.02. Liabilities. (1) A person who without authorization of the patient willfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient's death shall be guilty of a Class A felony.

(2) A person who coerces or exerts undue influence on a patient to request medication for the purpose of ending the patient's life, or to destroy a rescission of such a request, shall be guilty of a Class A felony.

(3) Nothing in ORS 127.800 to 127.897 limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

(4) The penalties in ORS 127.800 to 127.897 do not preclude criminal penalties applicable under other law for conduct which is inconsistent with the provisions of ORS 127.800 to 127.897. [1995 c.3 §4.02]

127.892 Claims by governmental entity for costs incurred. Any governmental entity that incurs costs resulting from a person terminating his or her life pursuant to the provisions of ORS 127.800 to 127.897 in a public place shall have a claim against the estate of the person to recover such costs and reasonable attorney fees related to enforcing the claim. [1999 c.423 §Sa]

(Severability)

(Section 5)

127.895 §5.01. Severability. Any section of ORS 127.800 to 127.897 being held invalid as to any person or circumstance shall not affect the application of any other section of ORS 127.800 to 127.897 which can be given full effect without the invalid section or application. [1995 c.3 §5.01]

(Form of the Request)

(Section 6)

127.897 §6.01. Form of the request. A request for a medication as authorized by ORS 127.800 to 127.897 shall be in substantially the following form:

REQUEST FOR MEDICATION

TO END MY LIFE IN A HUMANE

AND DIGNIFIED MANNER

I, __________ , am an adult of sound mind.

I am suffering from , which my attending physician has determined is a terminal disease and which has been medically confirmed by a consulting physician.

I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives, including comfort care, hospice care and pain control.

I request that my attending physician prescribe medication that will end my life in a humane and dignified manner.

INITIAL ONE:

___ I have informed my family of my decision and taken their opinions into consideration.

___ I have decided not to inform my family of my decision.

___ I have no family to inform of my decision.

I understand that I have the ri'ght to rescind this request at any time.

I understand the full import of this request and I expect to die when I take the medication to be prescribed. I further understand that although most deaths occur within three hours, my death may take longer and my physician has counseled me about this possibility.

I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.

Signed: ______ _

Dated: ______ _

DECLARATION OF WITNESSES

We declare that the person signing this request:

(a) Is personally known to us or has provided proof of identity;

(b) Signed this request in our presence;

(c) Appears to be of sound mind and not under duress, fraud or undue influence;

(d) Is not a patient for whom either of us is attending physician.

______ Witness 1/Date

______ Witness 2/Date

NOTE: One witness shall not be a relative (by blood, marriage or adoption) of the person signing this request, shall not be entitled to any portion of the person's estate upon death and shall not own, operate or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.

[1995 c.3 §6.01; 1999 c.423 §11]

PENALTIES

127.990: [Formerly part of 97.990; repealed by 1993 c.767 §29]

127.995 Penalties. (1) It shall be a Class A felony for a person without authorization of the principal to willfully alter, forge, conceal or destroy an instrument, the reinstatement or revocation of an instrument or any other evidence or document reflecting the principal's desires and interests, with the intent and effect of causing a withholding or withdrawal of life-sustaining procedures or of artificially administered nutrition and hydration which hastens the death of the principal.

(2) Except as provided in subsection (1) of this section, it shall be a Class A misdemeanor for a person without authorization of the principal to willfully alter, forge, conceal or destroy an instrument, the reinstatement or revocation of an instrument, or any other evidence or document reflecting the principal's desires and interests with the intent or effect of affecting a health care decision. [Formerly 127.585]

Oregon Public Health Division

Oregon's Death with Dignity Act--2014

Oregon's Death with Dignity Act (DWDA), enacted in late 1997, allows terminally-ill adult Oregonians to

obtain and use prescriptions from their physicians for self-administered, lethal doses of medications.

The Oregon Public Health Division is required by the DWDA to collect compliance information and to

issue an annual report. The key findings from 2014 are presented below. The number of people for

whom DWDA prescriptions were written (DWDA prescription recipients) and the resulting deaths from

the ingestion of prescribed DWDA medications (DWDA deaths) reported in this summary are based on

paperwork and death certificates received by the Oregon Public Health Division as of February 2, 2015.

For more detail, please view the figures and tables on our web site: http://www.healthoregon.org/dwd.

180

170

Figure 1: DWDA prescription recipients and deaths*, by year, Oregon, 1998-2014

160 • DWDA prescription recipients 150

140 130

120

110 Qj 100

..c E 90

~ 80 70

60

so 40

30

20 10

0

--------0 DWDA deaths

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

*As of February 2, 2015 Year

• As of February 2, 2015, prescriptions for lethal medications were written for 155 people during 2014

under the provisions of the DWDA, compared to 121 during 2013 (Figure 1). At the time of this

report, 105 people had died from ingesting the medications prescribed during 2014 under DWDA.

This corresponds to 31.0 DWDA deaths per 10,000 total deaths.1

1 Rate per 10,000 deaths calculated using the total number of Oregon resident deaths in 2013 {33,931), the most

recent year for which final death data are available.

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• Since the law was passed in 1997, a total of 1,327 people have had DWDA prescriptions written and

859 patients have died from ingesting medications prescribed under the DWDA.

• Of the 155 patients for whom DWDA prescriptions were written during 2014, 94 (60.6%) ingested

the medication; all 94 patients died from ingesting the medication. No patients that ingested the

medication regained consciousness.

• Eleven patients with prescriptions written during the previous years (2012 and 2013) died after

ingesting the medication during 2014.

• Thirty-seven of the 155 patients who received DWDA prescriptions during 2014 did not take the

medications and subsequently died of other causes.

• Ingestion status is unknown for 24 patients who were prescribed DWDA medications in 2014. For all of the 24 patients, both death and ingestion status are pending (Figure 2).

• Of the 105 DWDA deaths during 2014, most (67.6%) were aged 65 years or older. The median age at

death was 72 years. As in previous years, decedents were commonly white (95.2%) and well

educated (47.6% had a least a baccalaureate degree).

• While most patients had cancer, the percent of patients with cancer in 2014 (68.6%) was lower than

in previous years (79.4%), and the percent with amyotrophic lateral sclerosis (ALS) was higher

(16.2% in 2014, compared to 7.2% in previous years).

• While similar to previous years that most patients had cancer (68.6%), this percent was lower than

the average for previous years (79.4%); in contrast, the percent of patients with ALS was higher in

2014 (16.2%) than in previous years (7.2%).

• Most (89.5%) patients died at home, and most (93.0%) were enrolled in hospice care either at the

time the DWDA prescription was written or at the time of death. Excluding unknown cases, all

(100.0%) had some form of health care insurance, although the number of patients who had private

insurance (39.8%) was lower in 2014 than in previous years (62.9%). The number of patients who

had only Medicare or Medicaid insurance was higher than in previous years (60.2% compared to

35.5%).

• As in previous years, the three most frequently mentioned end-of-life concerns were: loss of

autonomy (91.4%), decreasing ability to participate in activities that made life enjoyable (86.7%),

and loss of dignity (71.4%).

• Three of the 105 DWDA patients who died during 2014 were referred for formal psychiatric or

psychological evaluation. Prescribing physicians were present at the time of death for 14 patients

(13.9%) during 2014 compared to 15.9% in previous years.

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• A procedure revision was made in 2010 to standardize reporting on the follow-up questionnaire.

The new procedure accepts information about the time of death and circumstances surrounding

death only when the physician or another health care provider was present at the time of death.

Due to this change, data on time from ingestion to death is available for 20 of the 105 DWDA deaths

during 2014. Among those 20 patients, time from ingestion until death ranged from eleven minutes

to one hour.

• Eighty-three physicians wrote 155 prescriptions during 2014 (1-12 prescriptions per physician).

• During 2014, no referrals were made to the Oregon Medical Board for failure to comply with DWDA

requirements.

Figure 2: Summary of DWDA prescriptions written and medications ingested in 2014, as of February 2, 2015

11 people with prescriptions written

in previous years ingested medication

during 2014

105 ingested medication

I

94 ingested medication

-

0 regained 105 died from consciousness after

ingesting -'-- ingesting medication; medication died of underlying

illness

155 people had prescriptions written during 2014

37 did not ingest medication and

subsequently died from other causes

http:/ /pub lie. health. oregon .gov /ProviderPartnerResou rces/Eva I uation Research/

Deathwith Dignity Act/Docu m ents/year17 .pdf

I

24 ingestion and death status

unknown

Page 3 of 6


Table 1. Characteristics and end-of-life care of 857 DWDA patients who have died from ingesting a lethal

dose of medication as of February 2, 2015, by year, Oregon, 1998-2014

2014 1998-2013 Total Characteristics (N=105) (N=754) (N=859)

Sex N (%)1 N (%)1 N (%)1

Male{%) 56 {53.3) 397 (52.7) 453 {52.7)

Female{%) 49 {46.7) 357 (47.3) 406 {47.3)

Age at death (years) 18-34 (%) 1 {1.0) 6 (0.8) 7 {0.8)

35-44 {%) 2 (1.9) 16 (2.1) 18 (2.1)

45-54 {%) 3 (2.9) 58 (7.7) 61 (7.1)

55-64 (%) 28 {26.7) 156 (20.7) 184 {21.4)

65-74 {%) 29 (27.6) 218 (28.9) 247 {28.8)

75-84 (%) 23 {21.9) 206 (27.3) 229 (26.7)

85+ {%) 19 (18.1) 94 (12.5) 113 (13.2)

Median years (range) 72 (29-96) 71 (25-96) 71 {25-96)

Race White(%) 100 {95.2) 731 (97.3) 831 {97.1)

African American {%) 0 {0.0) 1 (0.1) 1 {0.1)

American Indian (%) 0 {0.0) 2 (0.3) 2 {0.2)

Asian{%) 1 {1.0) 8 (1.1) 9 {1.1)

Pacific Islander{%) 0 {0.0) 1 (0.1) 1 {0.1)

Other{%) 2 {1.9) 1 (0.1) 3 (0.4)

Two or more races (%) 1 {1.0) 2 (0.3) 3 (0.4)

Hispanic(%) 1 (1.0) 5 (0.7) 6 (0.7)

Unknown 0 3 3

Marital Status

Married (%) 2 48 (45.7) 347 (46.2) 395 (46.1)

Widowed(%) 26 (24.8) 172 (22.9) 198 (23.1)

Never married (%) 6 (5.7) 63 (8.4) 69 (8.1)

Divorced (%) 25 (23.8) 169 (22.5) 194 (22.7)

Unknown 0 3 3

Education Less than high school{%) 6 (5.7) 45 (6.0) 51 (6.0)

High school graduate{%) 23 (21.9) 164 (21.9) 187 (21.9)

Some college{%) 26 (24.8) 198 (26.4) 224 (26.2)

Baccalaureate or higher(%) so {47.6) 342 (45.7) 392 (45.9)

Unknown 0 5 5

Residence

Metro counties (%) 3 46 (44.7) 315 (41.9) 361 (42.3)

Coastal counties(%) 6 {5.8) 57 (7.6) 63 (7.4)

Other western counties {%) 40 (38.8) 325 (43.3) 365 (42.7)

East of the Cascades (%) 11 (10.7) 54 (7.2) 65 (7.6)

Unknown 2 3 5

End of life care Hospice

Enrolled (%)4 93 (93.0) 654 (90.0) 747 (90.3)

Not enrolled (%) 7 (7.0) 73 (10.0) 80 (9.7)

Unknown 5 27 32

Insurance

Private (%)5 37 (39.8) 452 (62.9) 489 (60.2)

Medicare, Medicaid or Other Governmental (%) 56 (60.2) 255 (35.5) 311 (38.3)

None(%) 0 (0.0) 12 (1.7) 12 {1.5)

Unknown 12 35 47

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2014 1998-2013 Total Characteristics (N=105) (N=754) {N=859)

Underlying illness Malignant neoplasms {%) 72 {68.6) 596 {79.4) 668 {78.0)

Lung and bronchus{%) 16 {15.2) 139 {18.5) 155 {18.1)

Breast{%) 7 {6.7) 57 (7.6) 64 (7.5)

Colon{%) 5 {4.8) 49 (6.5) 54 (6.3)

Pancreas (%) 9 {8.6) 47 {6.3) 56 {6.5)

Prostate (%) 2 (1.9) 33 {4.4) 35 (4.1)

Ovary(%) 5 (4.8) 28 (3.7) 33 (3.9)

Other{%) 28 (26.7) 243 {32.4) 271 {31.7)

Amyotrophic lateral sclerosis{%) 17 {16.2) 54 (7.2) 71 {8.3) Chronic lower respiratory disease {%) 4 (3.8) 34 {4.5) 38 {4.4) Heart Disease {%) 3 (2.9) 14 {1.9) 17 (2.0) HIV/AIDS {%) 0 (0.0) 9 {1.2) 9 {1.1)

Other illnesses (%)6 9 {8.6) 44 {5.9) 53 {6.2) Unknown 0 3 3

DWDA process Referred for psychiatric evaluation (%) 3 {2.9) 44 {5.9) 47 {5.5)

Patient informed family of decision (%)7 95 {90.5) 634 (93.6) 729 {93.2)

Patient died at

Home (patient, family or friend){%) 94 {89.5) 716 {95.3) 810 (94.6) Long term care, assisted living or foster care facility{%) 8 {7.6) 29 (3.9) 37 {4.3)

Hospital{%) 0 (0.0) 1 (0.1) 1 (0.1)

Other(%) 3 {2.9) 5 (0.7) 8 {0.9)

Unknown 0 3 3 Lethal medication

Secobarbital {%) 63 (60.0) 403 {53.4) 466 (54.2) Pentobarbital (%) 41 (39.0) 344 {45.6) 385 (44.8)

Other (%)8 1 {1.0) 7 (0.9) 8 {0.9)

End of life concerns9 (N=105) {N=754) (N=859)

Losing autonomy(%) 96 {91.4) 686 {91.5) 782 (91.5)

Less able to engage in activities making life enjoyable{%) 91 (86.7) 667 {88.9) 758 (88.7)

Loss of dignity {%) 10 75 {71.4) 504 (80.6) 579 {79.3) Losing control of bodily functions{%) 52 {49.5) 376 {50.1) 428 (50.1)

Burden on family, friends/caregivers{%) 42 (40.0) 300 {40.0) 342 (40.0)

Inadequate pain control or concern about it(%) 33 (31.4) 178 {23.7) 211 {24.7)

Financial implications of treatment(%) 5 {4.8) 22 (2.9) 27 {3.2)

Health-care provider present11 {N=105) (N=684) (N=789)

When medication was ingested 12

Prescribing physician 14 119 133 Other provider, prescribing physician not present 6 238 244

No provider 4 76 80

Unknown 81 251 332 At time of death

Prescribing physician (%) 14 (13.9) 107 (15.9) 121 {15. 7)

Other provider, prescribing physician not present(%) 6 {5.9) 263 (39.2) 269 (34.8)

No provider{%) 81 {80.2) 301 {44.9) 382 (49.5)

Unknown 4 13 17

Complications12 (N=105) (N=754) (N=859) Regurgitated 0 22 22

Seizures 0 0 0

Other 0 1 1

None 20 487 507

Unknown 85 244 329 Other outcomes

Regained consciousness after ingesting DWDA medications 13

0 6 6

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2014 1998-2013 Total Characteristics (N=105) (N=754) (N=859)

Timing of DWDA event

4

Duration {weeks) of patient-physician relationship14

Median 19 12 13

Range 1-1312 0-1905 0-1905

Number of patients with information available 105 752 857 Number of patients with information unknown 0 2 2

Duration {days) between 1st request and death

Median 43 48 47

Range 15-439 15-1009 15-1009


Minutes between ingestion and unconsciousness11

' 12

Median 5 5 5

Range 2-15 1-38 1-38


Minutes between ingestion and death11

' 12

Median 27 25 25

Range {minutes- hours) llmins-lhr lmin-104hrs lmin-104hrs


Unknowns are excluded when calculating percentages.

Includes Oregon Registered Domestic Partnerships.

Clackamas, Multnomah, and Washington counties.

Includes patients that were enrolled in hospice at the time the prescription was written or at time of death.

Private insurance category includes those with private insurance alone or in combination with other insurance.

Includes deaths due to benign and uncertain neoplasms, other respiratory diseases, diseases of the nervous system (including multiple

sclerosis, Parkinson's disease and Huntington's disease), musculoskeletal and connective tissue diseases, cerebrovascular disease, other

vascular diseases, diabetes mellitus, gastrointestinal diseases, and liver disease.

First recorded beginning in 2001. Since then, 37 patients (4. 7%) have chosen not to inform their families, and 16 patients (2.0%) have

had no family to inform. There was one unknown case in 2002, two in 2005, one in 2009, and 3 in 2013. Other includes combinations of secobarbital, pentobarbital, phenobarbital, and/or morphine.

Affirmative answers only ("Don't know" included in negative answers). Categories are not mutually exclusive. Data unavailable for four

patients in 2001. 1° First asked in 2003. Data available for all105 patients in 2014, 625 patients between 1998-2013, and 730 patients for all years.

11 The data shown are for 2001-2014 since information about the presence of a health care provider/volunteer, in the absence of the

prescribing physician, was first collected in 2001. 12 A procedure revision was made mid-year in 2010 to standardize reporting on the follow-up questionnaire. The new procedure accepts

information about time of death and circumstances surrounding death only when the physician or another health care provider is

present at the time of death. This resulted in a larger number of unknowns beginning in 2010. 13 There have been a total of six patients who regained consciousness after ingesting prescribed lethal medications. These patients are not

included in the total number of DWDA deaths. These deaths occurred in 2005 (1 death), 2010 (2 deaths), 2011 (2 deaths) and 2012 (1

death). Please refer to the appropriate years' annual reports on our website (http:/ /www.healthoregon.org/dwd) for more detail on

these deaths. 14 Previous reports listed 20 records missing the date care began with the attending physician. Further research with these cases has

reduced the number of unknowns.

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Prescription History- Oregon Death with Dignity Act

Year Deaths Prescriptions # Physicians 1998 16 24 1999 27 33 2000 27 39 22 2001 21 44 33 2002 38 58 33 2003 42 68 42 2004 37 60 40 2005 38 65 40 2006 46 65 41 2007 49 85 46 2008 60 88 60 2009 59 95 64 2010 65 97 59 2011 71 114 62 2012 85 116 62 2013 73 121 62 2014 105 155 83

Appendix C

Washington Death with Dignity Act and Relevant Data

Chapter 70.245 RCW: THE WASHINGTON DEATH WITH DIGNITY ACT

Chapter 70.245 RCW

THE WASHINGTON DEATH WITH DIGNITY ACT

Chapter Listing

Sections

70.245.010 70.245.020 70.245.030 70.245.040 70.245.050 70.245.060 70.245.070 70.245.080 70.245.090 70.245.100 70.245.110 70.245.120 70.245.130 70.245.140 70.245.150

Definitions. Written request for medication. Form of the written request. Attending physician responsibilities. Consulting physician confirmation. Counseling referral. Informed decision. Notification of next of kin. Written and oral requests. Right to rescind request. Waiting periods. Medical record documentation requirements. Residency requirement. Disposal of unused medications. Reporting of information to the department of health- Adoption of

Page 1 of 14

rules-Information collected not a public record-Annual statistical report. 70.245.160 70.245.170 70.245.180

70.245.190

70.245.200

70.245.210 70.245.220 70.245.901 70.245.902 70.245.903 70.245.904

Effect on construction of wills, contracts, and statutes. Insurance or annuity policies. Authority of chapter-References to practices under this chapter-Applicable

standard of care. Immunities-Basis for prohibiting health care provider from

participation-Notification-Permissible sanctions. Willful alteration/forgery-Coercion or undue influence-Penalties-Civil

damages-Other penalties not precluded. Claims by governmental entity for costs incurred. Form of the request. Short title-2009 c 1 (Initiative Measure No. 1 000). Severability-2009 c 1 (Initiative Measure No. 1 000). Effective dates-2009 c 1 (Initiative Measure No. 1 000). Captions, part headings, and subpart headings not law-2009 c 1 (Initiative

Measure No. 1 000).

--------------------------------------------·-----------------------

70.245.010 Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Adult" means an individual who is eighteen years of age or older.

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Chapter 70.245 RCW: THE WASHINGTON DEATH WITH DIGNITY ACT Page 2 of 14

(2) "Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.

(3) "Competent" means that, in the opinion of a court or in the opinion of the patient's attending physician or consulting physician, psychiatrist, or psychologist, a patient has the ability to make and communicate an informed decision to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available.

(4) "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease.

(5) "Counseling" means one or more consultations as necessary between a state licensed psychiatrist or psychologist and a patient for the purpose of determining that the patient is competent and not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.

(6) "Health care provider" means a person licensed, certified, or otherwise authorized or permitted by law to administer health care or dispense medication in the ordinary course of business or practice of a profession, and includes a health care facility.

(7) "Informed decision" means a decision by a qualified patient, to request and obtain a prescription for medication that the qualified patient may self-administer to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of:

(a) His or her medical diagnosis; (b) His or her prognosis; (c) The potential risks associated with taking the medication to be prescribed; (d) The probable result of taking the medication to be prescribed; and (e) The feasible alternatives including, but not limited to, comfort care, hospice care, and

pain control. (8) "Medically confirmed" means the medical opinion of the attending physician has been

confirmed by a consulting physician who has examined the patient and the patient's relevant medical records.

(9) "Patient" means a person who is under the care of a physician. ( 1 0) "Physician" means a doctor of medicine or osteopathy licensed to practice medicine

in the state of Washington. (11) "Qualified patient" means a competent adult who is a resident of Washington state

and has satisfied the requirements of this chapter in order to obtain a prescription for medication that the qualified patient may self-administer to end his or her life in a humane and dignified manner.

(12) "Self-administer" means a qualified patient's act of ingesting medication to end his or her life in a humane and dignified manner.

(13) "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.

[2009 c 1 § 1 (Initiative Measure No. 1000, approved November 4, 2008).]

http:/ I app.leg. wa. gov /rcw/ default.aspx?cite=70 .24 5 &full =true 1129/2016


70.245.020 Written request for medication.

(1) An adult who is competent, is a resident of Washington state, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntari ly expressed his or her wish to die, may make a written request for medication that the patient may self-administer to end his or her life in a humane and dignified manner in accordance with this chapter.

(2) A person does not qualify under this chapter solely because of age or disability.


70.245.030 Form of the written request.

(1) A valid request for medication under this chapter shall be in substantially the form described in RCW 70.245.220, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is competent, acting voluntarily, and is not being coerced to sign the request.

(2) One of the witnesses shall be a person who is not: (a) A relative of the patient by blood, marriage, or adoption; (b) A person who at the time the request is signed would be entitled to any portion of the

estate of the qualified patient upon death under any will or by operation of law; or (c) An owner, operator, or employee of a health care facility where the qualified patient is

receiving medical treatment or is a resident. (3) The patient's attending physician at the time the request is signed shall not be a

witness. (4) If the patient is a patient in a long-term care facility at the time the written request is

made, one of the witnesses shall be an individual designated by the faci lity and having the qualifications specified by the department of health by rule.


70.245.040 Attending physician responsibilities.

(1) The attending physician shal l: (a) Make the initial determination of whether a patient has a terminal disease, is

competent, and has made the request voluntarily; (b) Request that the patient demonstrate Washington state residency under RCW

70.245.130; (c) To ensure that the patient is making an informed decision, inform the patient of: (i) His or her medical diagnosis;

http://app.leg.wa.gov/rcw/default.aspx?cite=70.245&full=true 1129/2016


(ii) His or her prognosis; (iii) The potential risks associated with taking the medication to be prescribed; (iv) The probable result of taking the medication to be prescribed; and

Page 4 of 14

(v) The feasible alternatives including, but not limited to, comfort care, hospice care, and pain control;

(d) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is competent and acting voluntarily;

(e) Refer the patient for counseling if appropriate under RCW 70.245.060; (f) Recommend that the patient notify next of kin; (g) Counsel the patient about the importance of having another person present when the

patient takes the medication prescribed under this chapter and of not taking the medication in a public place;

(h) Inform the patient that he or she has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the fifteen-day waiting period under RCW 70.245.090;

(i) Verify, immediately before writing the prescription for medication under this chapter, that the patient is making an informed decision;

U) Fulfill the medical record documentation requirements of RCW 70.245.120; (k) Ensure that all appropriate steps are carried out in accordance with this chapter before

writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and

(l)(i) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort, if the attending physician is authorized under statute and rule to dispense and has a current drug enforcement administration certificate; or

(ii) With the patient's written consent: (A) Contact a pharmacist and inform the pharmacist of the prescription; and (B) Deliver the written prescription personally, by mail or facsimile to the pharmacist, who

will dispense the medications directly to either the patient, the attending physician, or an expressly identified agent of the patient. Medications dispensed pursuant to this subsection shall not be dispensed by mail or other form of courier.

(2) The attending physician may sign the patient's death certificate which shall list the underlying terminal disease as the cause of death.


70.245.050 Consulting physician confirmation.

Before a patient is qualified under this chapter, a consulting physician shall examine the patient and his or her relevant medical records and confirm, in writing, the attending physician's diagnosis that the patient is suffering from a terminal disease, and verify that the patient is competent, is acting voluntarily, and has made an informed decision.


http :I lapp .leg. wa. gov /rcw I default.aspx?cite=7 0.24 5&full=true 112912016


70.245.060 Counseling referral.

If, in the opinion of the attending physician or the consulting physician, a patient m·ay be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. Medication to end a patient's life in a humane and dignified manner shall not be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.


70.245.070 Informed decision.

A person shall not receive a prescription for medication to end his or her life in a humane and dignified manner unless he or she has made an informed decision. Immediately before writing a prescription for medication under this chapter, the attending physician shall verify that the qualified patient is making an informed decision.


70.245.080 Notification of next of kin.

The attending physician shall recommend that the patient notify the next of kin of his or her request for medication under this chapter. A patient who declines or is unable to notify next of kin shall not have his or her request denied for that reason.


70.245.090 Written and oral requests.

To receive a prescription for medication that the qualified patient may self-administer to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician at least fifteen days after making the initial oral request. At the time the qualified

http://app.leg.wa.gov/rcw/default.aspx?cite=70.245&full=true 1/29/2016


patient makes his or her second oral request, the attending physician shall offer the qualified patient an opportunity to rescind the request.


70.245.100 Right to rescind request.

A patient may rescind his or her request at any time and in any manner without regard to his or her mental state. No prescription for medication under this chapter may be written without the attending physician offering the qualified patient an opportunity to rescind the request.


70.245.110 Waiting periods.

( 1) At least fifteen days shall elapse between the patient's initial oral request and the writing of a prescription under this chapter.

(2) At least forty-eight hours shall elapse between the date the patient signs the written request and the writing of a prescription under this chapter.


70.245.120 Medical record documentation requirements.

The following shall be documented or filed in the patient's medical record: (1) All oral requests by a patient for medication to end his or her life in a humane and

dignified manner; (2) All written requests by a patient for medication to end his or her life in a humane and

dignified manner; (3) The attending physician's diagnosis and prognosis, and determination that the patient

is competent, is acting voluntarily, and has made an informed decision; (4) The consulting physician's diagnosis and prognosis, and verification that the patient is

competent, is acting voluntarily, and has made an informed decision; (5) A report of the outcome and determinations made during counseling, if performed; (6) The attending physician's offer to the patient to rescind his or her request at the time of

the patient's second oral request under RCW 70.245.090; and


Chapter 70.245 RCW: THEW ASHINGTON DEATH WITH DIGNITY ACT Page 7 of 14

(7) A note by the attending physician indicating that all requirements under this chapter have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed.


70.245.130 Residency requirement.

Only requests made by Washington state residents under this chapter may be granted. Factors demonstrating Washington state residency include but are not limited to:

(1) Possession of a Washington state driver's license; (2) Registration to vote in Washington state; or (3) Evidence that the person owns or leases property in Washington state.


70.245.140 Disposal of unused medications.

Any medication dispensed under this chapter that was not self-administered shall be disposed of by lawful means.


70.245.150 Reporting of information to the department of health-Adoption of rules-Information collected not a public record-Annual statistical report.

(1 )(a) The department of health shall annually review all records maintained under this chapter.

(b) The department of health shall require any health care provider upon writing a prescription or dispensing medication under this chapter to file a copy of the dispensing record and such other administratively required documentation with the department. All administratively required documentation shall be mailed or otherwise transmitted as allowed by department of health rule to the department no later than thirty calendar days after the writing of a prescription and dispensing of medication under this chapter, except that all documents required to be filed with the department by the prescribing physician after the death of the patient shall be mailed no later than thirty calendar days after the date of death of the patient. In the event that anyone required under this chapter to report information to the



department of health provides an inadequate or incomplete report, the department shall contact the person to request a complete report.

Page 8 of 14

(2) The department of health shall adopt rules to facilitate the collection of information regarding compliance with this chapter. Except as otherwise required by law, the information collected is not a public record and may not be made available for inspection by the public.

(3) The department of health shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section.


70.245.160 Effect on construction of wills, contracts, and statutes.

(1) Any provision in a contract, will, or other agreement, whether written or oral, to the extent the provision would affect whether a person may make or rescind a request for medication to end his or her life in a humane and dignified manner, is not valid.

(2) Any obligation owing under any currently existing contract shall not be conditioned or affected by the making or rescinding of a request, by a person, for medication to end his or her life in a humane and dignified manner.


70.245.170 Insurance or annuity policies.

The sale, procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged for any policy shall not be conditioned upon or affected by the making or rescinding of a request, by a person, for medication that the patient may selfadminister to end his or her life in a humane and dignified manner. A qualified patient's act of ingesting medication to end his or her life in a humane and dignified manner shall not have an effect upon a life, health, or accident insurance or annuity policy.


70.245.180 Authority of chapter-References to practices under this chapter-Applicable standard of care.

(1) Nothing in this chapter authorizes a physician or any other person to end a patient's life by lethal injection, mercy killing, or active euthanasia. Actions taken in accordance with this



chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing , or homicide, under the law. State reports shall not refer to practice under this chapter as "suicide" or "assisted suicide." Consistent with RCW 70.245.010 (7) , (11 ), and (12), 70.245.020(1 ), 70.245.040(1 )(k) , 70.245.060, 70.245.070, 70.245.090, 70.245.120 (1) and (2) , 70.245.160 (1) and (2), 70.245.170, 70.245.190(1) (a) and (d), and 70.245.200(2) , state reports shall refer to practice under this chapter as obtaining and self-administering life-ending medication.

(2) Nothing contained in this chapter shall be interpreted to lower the applicable standard of care for the attending physician, consulting physician, psychiatrist or psychologist, or other health care provider participating under this chapter.

[2009 c 1 § 18 (Initiative Measure No. 1000, approved November 4, 2008) .]

70.245.190 Immunities-Basis for prohibiting health care provider from participation- Notification-Permissible sanctions.

(1) Except as provided in RCW 70.245.200 and subsection (2) of this section: (a) A person shall not be subject to civil or criminal liability or professional disciplinary

action for participating in good faith compliance with this chapter. This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner;

(b) A professional organization or association, or health care provider, may not subject a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance with this chapter;

(c) A patient's request for or provision by an attending physician of medication in good faith compliance with this chapter does not constitute neglect for any purpose of law or provide the sole basis for the appointment of a guardian or conservator; and

(d) Only willing health care providers shall participate in the provision to a qualified patient of medication to end his or her life in a humane and dignified manner. If a health care provider is unable or unwilling to carry out a patient's request under this chapter, and the patient transfers his or her care to a new health care provider, the prior health care provider shall transfer, upon request, a copy of the patient's relevant medical records to the new health care provider.

(2)(a) A health care provider may prohibit another health care provider from participating under chapter 1, Laws of 2009 on the premises of the prohibiting provider if the prohibiting provider has given notice to all health care providers with privileges to practice on the premises and to the general public of the prohibiting provider's policy regarding participating under chapter 1, Laws of 2009. This subsection does not prevent a health care provider from providing health care services to a patient that do not constitute participation under chapter 1, Laws of 2009.

(b) A health care provider may subject another health care provider to the sanctions stated in this subsection if the sanctioning health care provider has notified the sanctioned provider



before participation in chapter 1, Laws of 2009 that it prohibits participation in chapter 1, Laws of 2009:

(i) Loss of privileges, loss of membership, or other sanctions provided under the medical staff bylaws, policies, and procedures of the sanctioning health care provider if the sanctioned provider is a member of the sanctioning provider's medical staff and participates in chapter 1, Laws of 2009 while on the health care facility premises of the sanctioning health care provider, but not including the private medical office of a physician or other provider;

(ii) Termination of a lease or other property contract or other nonmonetary remedies provided by a lease contract, not including loss or restriction of medical staff privileges or exclusion from a provider panel, if the sanctioned provider participates in chapter 1, Laws of 2009 while on the premises of the sanctioning health care provider or on property that is owned by or under the direct control of the sanctioning health care provider; or

(iii) Termination of a contract or other nonmonetary remedies provided by contract if the sanctioned provider participates in chapter 1, Laws of 2009 while acting in the course and scope of the sanctioned provider's capacity as an employee or independent contractor of the sanctioning health care provider. Nothing in this subsection (2)(b)(iii) prevents:

(A) A health care provider from participating in chapter 1, Laws of 2009 while acting outside the course and scope of the provider's capacity as an employee or independent contractor; or

(B) A patient from contracting with his or her attending physician and consulting physician to act outside the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.

(c) A health care provider that imposes sanctions under (b) of this subsection shall follow all due process and other procedures the sanctioning health care provider may have that are related to the imposition of sanctions on another health care provider.

(d) For the purposes of this subsection: (i) "Notify" means a separate statement in writing to the health care provider specifically

informing the health care provider before the provider's participation in chapter 1, Laws of 2009 of the sanctioning health care provider's policy about participation in activities covered by this chapter.

(ii) "Participate in chapter 1, Laws of 2009" means to perform the duties of an attending physician under RCW 70.245.040, the consulting physician function under RCW 70.245.050, or the counseling function under RCW 70.245.060. "Participate in chapter 1, Laws of 2009" does not include:

(A) Making an initial determination that a patient has a terminal disease and informing the patient of the medical prognosis;

(B) Providing information about the Washington death with dignity act to a patient upon the request of the patient;

(C) Providing a patient, upon the request of the patient, with a referral to another physician; or

(D) A patient contracting with his or her attending physician and consulting physician to act · outside of the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider.

(3) Suspension or termination of staff membership or privileges under subsection (2) of this section is not reportable under RCW 18.130.070. Action taken under RCW 70.245.030, 70.245.040, 70.245.050, or 70.245.060 may not be the sole basis for a report of unprofessional conduct under RCW 18.130.180.

http://app.leg.wa.gov/rcw/default. aspx?cite=70.245&full=true 1/29/2016


(4) References to "good faith" in subsection (1 )(a), (b), and (c) of this section do not allow a lower standard of care for health care providers in the state of Washington.


70.245.200 Willful alteration/forgery-Coercion or undue influence-Penalties-Civil damages-Other penalties not precluded.

( 1) A person who without authorization of the patient willfully alters or forges a request for medication or conceals or destroys a rescission of that request with the intent or effect of causing the patient's death is guilty of a class A felony.

(2) A person who coerces or exerts undue influence on a patient to request medication to end the patient's life, or to destroy a rescission of a request, is guilty of a class A felony.

(3) This chapter does not limit further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person.

(4) The penalties in this chapter do not preclude criminal penalties applicable under other law for conduct that is inconsistent with this chapter.


70.245.210 Claims by governmental entity for costs incurred.

Any governmental entity that incurs costs resulting from a person terminating his or her life under this chapter in a public place has a claim against the estate of the person to recover such costs and reasonable attorneys' fees related to enforcing the claim.


70.245.220 Form of the request.

A request for a medication as authorized by this chapter shall be in substantially the following form:

REQUEST FOR MEDICATION TO END MY LIFE IN A HUMAN [HUMANE] AND DIGNIFIED MANNER

I, ............... , am an adult of sound mind. I am suffering from ............... , which my attending physician has determined is a

terminal disease and which has been medically confirmed by a consulting physician.



I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives, including comfort care, hospice care, and pain control.

I request that my attending physician prescribe medication that I may self-administer to end my life in a humane and dignified manner and to contact any pharmacist to fill the prescription.

INITIAL ONE: ..... I have informed my family of my decision and taken their opinions into

consideration . . . . . . I have decided not to inform my family of my decision . . . . . . I have no family to inform of my decision.

I understand that I have the right to rescind this request at any time. I understand the full import of this request and I expect to die when I take the medication

to be prescribed. I further understand that although most deaths occur within three hours, my death may take longer and my physician has counseled me about this possibility.

I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.

Signed: .............. .

Dated: .............. .

DECLARATION OF WITNESSES

By initialing and signing below on or after the date the person named above signs, we declare that the person making and signing the above request:

Witness 1 Initials

Witness 2 Initials

1. Is personally known to us or has provided proof of identity;

2. Signed this request in our presence on the date of the person's signature;

3. Appears to be of sound mind and not under duress, fraud, or undue influence;

4. Is not a patient for whom either of us is the attending physician.

Printed Name of Witness 1: ... .

Signature of Witness 1/Date: ... .

Printed Name of Witness 2: ... .



Signature of Witness 2/Date: ....

NOTE: One witness shall not be a relative by blood, marriage, or adoption of the person signing this request, shall not be entitled to any portion of the person's estate upon death, and shall not own, operate, or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.


70.245.901 Short title-2009 c 1 (Initiative Measure No. 1000).

This act may be known and cited as the Washington death with dignity act.


70.245.902 Severability-2009 c 1 (Initiative Measure No. 1 000).

If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.


70.245.903 Effective dates-2009 c 1 (Initiative Measure No. 1000).

This act takes effect one hundred twenty days after the election at which it is approved [March 5, 2009], except for section 24 of this act which takes effect July 1, 2009.


70.245.904 Captions, part headings, and subpart headings not law-2009 c 1 (Initiative Measure No. 1 000).


Chapter 70.245 RCW: THE WASHINGTON DEATH WITH DIGNITY ACT Page 14of14

Captions, part headings, and subpart headings used in this act are not any part of the law.



·&~Tth DOH 422-109 2014

Washington State Department of Health 2014 Death with Dignity Act Report

Executive Summary

Washington's Death with Dignity Act allows adult residents in the state with six months or less to live to request lethal doses of medication from a physician. In this report, a participant of the act is defined as someone to whom medication was dispensed under the terms of this law. This report describes available information for the 176 participants for whom medication was dispensed between January 1, 2014 and December 31,2014. It includes data from the documentation received by the Department of Health as of March 16, 2015.

In 2014, medication was dispensed to 176 individuals (defined as 2014 participants): • Prescriptions were written by 109 different physicians • Medications were dispensed by 57 different pharmacists

Of the 176 participants in 2014: • 170 are known to have died

• 126 died after ingesting the medication • 17 died without having ingested the medication • For the remaining 27 people who died, ingestion status is unknown

• For the six participants not included among those known to have died, the state health department has received no documentation that indicates death has occurred

The 170 participants who died in 2014 ranged in age from 21 to 101 years old. Ninety-five percent lived west of the Cascades. Of the 170 participants in 2014 who died:

• 73 percent had cancer • 13 percent had neuro-degenerative disease, including Amyotrophic Lateral Sclerosis

(ALS) • 14 percent had other illnesses, including heart and respiratory disease

Of the 169 participants in 2014 who died for whom a death certificate was provided to the state: • 92 percent were white, non-Hispanic • 56 percent were married • 76 percent had at least some college education

Of the 143 participants in 2014 who died and for whom an After Death Report was received: • 93 percent had private, Medicare, Medicaid, or a combination of health insurance • 89 percent reported to their health care provider concerns about loss of autonomy • 79 percent reported to their health care provider concerns about loss of dignity • 94 percent reported to their health care provider concerns about loss of the ability to

participate in activities that make life enjoyable

Of the 126 participants in 2014 who died after ingesting the medication: • 92 percent were at home at the time of death • 68 percent were enrolled in hospice care when they ingested the medication

1

Death with Dignity Participation in 2014

For the purposes of this report, a participant of the Death with Dignity Act in 2014 is defined as someone to whom medication was dispensed in 2014 under the terms of the act. Details of the act are included in Appendix A.

To date, the state health department has received documentation indicating that lethal doses of medication were dispensed to 176 participants under the law in 2014. These prescriptions were written by 109 different physicians and dispensed by 57 different pharmacists. The department has not yet received all of the required paperwork for all176 participants. Table 5 in Appendix A shows details of the documentation that has been received by the department. When all the required paperwork is not received, department staff contacts health care providers to obtain the documentation.

Among the 176 participants who received medication in 2014, the department has received confirmation that 170 have died. One hundred twenty-six ingested the medication, 17 did not ingest, and the ingestion status is unknown for 27 (Figure 1 ). Death of a participant is established through receipt of the After Death Reporting form and/or a death certificate.

The status of the remaining six participants is unknown at the time of this report. Some participants may still be alive since they may wait to use the medication or choose not to use it. It is also possible that some participants have taken the medication and died, but notification has not yet been received by the department because the After Death Reporting form is due 30 days after death and the death certificate is due 60 days after death.

2

Figure 1. Outcome of the 176 participants who received medication in 2014 under the terms of the Death with Dignity Act

176 participants with

medication dispensed

170 participants have

died

143 After Death

Reports received

27 participants

without After Death

Report

126 ingested

lethal

medication

+ 1 participants

with death

certificate

pending

17 did not

ingest lethal

medication

+ 0 participant

with death

certificate

pending

Ingestion of

medication

unknown

0 participants

with death

certificate

pending

6 with status pending

0 After Death

Reports received

0 death certificates

received

3

Update on Death with Dignity Participation 2009-2014

Since the last Death with Dignity report was published on June 4, 2014 the department received additional information on participants from prior years. As of March 16, 2015, 169 of the 173 participants in 2013, 121 of the 121 participants in 2012, 102 of the 103 participants in 2011, 86 of the 87 participants in 2010, and 64 of the 65 participants in 2009 had died. The status of the four remaining participants in 2013, the one remaining participant in 2011, the one remaining participant in 2010, and the one remaining participant in 2009 remains unknown. These participants may have died, no documentation of the death has been received. The number of participants in 2009-2014, and the number of these participants who are known to have died as of March 16, 2015, is shown in Figure 2.

Figure 2. Number of Death with Dignity Participants and Known Deaths, 2009-2014

180

160

140

120

llll Participants ~ 100 .CI E :I z so Deaths

60

40

20

0 2009 2010 2011 2012 2013 2014

4

Table 1. Characteristics of the participants of the Death with Dignity Act who have died

2014 2013 1

Number % Number % Sex.J

Male 73 43 86 52 Female 96 57 79 48

Age (years )2

18-44 6 3 5 3 45-54 10 6 9 5 55-64 32 19 29 17 65-74 53 31 53 32 75-84 40 24 41 24 85+ 29 17 32 19 Range (min-max) 21-101 29-95

Race and Ethnicityj Non-Hispanic White 156 92 159 96 Hispanic and/or Non-White 12 7 6 4 Unknown 1 1

Marital Status.J Married 80 47 84 51 Widowed 34 20 27 16 Divorced 36 21 43 26 Domestic partner (state-registered) 1 1 0 0 Never married 17 10 11 7 Unknown 1 1

Educationj Less than high school 4 2 1 1 High school graduate 34 20 40 24 Some college 42 25 44 26 Baccalaureate or higher 86 50 79 48 Unknown 3 3 1 1

Residence2'4

West of the Cascades 161 95 153 96 East of the Cascades 9 5 6 4

Underlying illness2

Cancer 129 76 123 77 Neuro-degenerative disease (including ALS5

) 21 13 24 15 Respiratory disease (including COPD0

) 4 2 7 5 Heart disease 10 6 3 2 Other illnesses 6 3 2 1

Insurance Status' Private only 33 23 27 19 Medicare or Medicaid only 82 57 86 59 Combination of private and Medicare/Medicaid 18 13 24 17 None 3 2 0 0 Unknown 7 5 8 5

5

Notes:

1 Data derived from the death certificate (sex, age, race/ethnicity, marital status, and education) have been updated for 14 of the 2013 participants with information received since the 2013 report was published. At time of publication, death certificate data are available for 165 ofthe 2013 participants.

2 Data are collected from multiple documents. At time of publication, data are available for all 170 of the participants in 2014 who died.

3 Data are collected from the death certificate. At time of publication, data are available for 169 of the 170 participants in 2014 who died.

4 Counties west of the Cascades include: Clallam, Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific, Pierce, San Juan, Skagit, Skamania, Snohomish, Thurston, Wahkiakum, and Whatcom. Counties east of the Cascades include: Adams, Asotin, Benton, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, Spokane, Stevens, Walla Walla, Whitman, and Yakima.

5 Amyotrophic Lateral Sclerosis (ALS).

6 Chronic Obstructive Pulmonary Disease (COPD).

7 Data are collected from the After Death Reporting form. At the time of publication, data are available for 143 of the 170 participants in 2014.

6

Table 2. End of life concerns of participants of the Death with Dignity Act who have died

2014 20131

Number o;o Number End of Life Concerns'.J

Losing autonomy 127 89 132 Less able to engage in activities making life 135 94 129 enjoyable Loss of dignity 113 79 115 Burden on family, friends/caregivers 85 59 88 Losing control of bodily functions 73 51 75 Inadequate pain control or concern about it 59 41 53 Financial implications of treatment 12 8 19

Notes:

1 Data published in 2013 report http://www.doh.wa.gov/DataandStatisticalReports/VitalStatisticsData/DeathwithDignityData.aspx

%

91

89

79 61 52 36 13

2 Data are collected from the After Death Reporting form. At the time of publication, data are available for 143 of the 170 participants in 2014 who died.

3 Participants may have selected more than one end of life concern. Thus the totals are greater than 100 percent.

7

Table 3. Death with Dignity Act process for the participants who have died

2014 2013 1

Number % Number Family and Psychiatric/Psychological involvement

Referred for 6 4 6 psychiatric/psychological evaluation2

Patient informed family of decision' 146 88 132 Medication 4

Secobarbital 112 64 16 Pentobarbital 64 36 142 Secobarbital/Pentobarbital Combination 0 0 0 Other 0 0 1

Timing Duration of patient-physician relationship5

<25 weeks 62 43 74 25 weeks - 51 weeks 18 13 15 1 year or more 57 40 56 Unknown 6 4 0 Range (min- max) <1 wk-23 yrs < 1 wk-28 yrs

Duration between first oral request and Death2

<25 weeks 145 87 130 25 weeks or more 15 9 16 Unknown 7 4 0 Range (min- max) 2 wks - 57 wks 2 wks -73 wks

Notes:

1 Data published in 20 13 report http://www .doh. wa. gov /DataandStatisticalReports/Vi tal S tatisticsData!Deathwith DignityData.aspx .

2 Data are collected from the Attending Physician ' s Compliance form. At the time of publication, data are available for 167 of the 170 participants in 2014 who died.

3 Data are collected from the Written Request for Medication to End Life. At the time of publication, data are avai lable for 165 ofthe 170 participants in 2014 who died.

%

4

88

10 89 0 1

51 10 39 0

89 11 0

4 Data are collected from the Pharmacy Dispensing Record Form. At the time of publication, data are available for all 176 of the participants in 20 14 who received medication.

5 Data are collected from the After Death Reporting form. At the time ofpublication, data are available for 143 of the 170 participants in 2014 who died.

8

Table 4. Circumstances and complications related to ingestion of medication prescribed under the Death with Dignity Act of the participants who have died

2014 20131

Number % Number Circumstances when medication ingestedz Health care provider present

Prescribing physician 7 6 2 Other provider, not prescribing physician,

78 62 62 present No provider 21 16 48 Unknown 20 16 7

Location ofpatient Home (patient, family, friend) 116 92 100 Long tenn care, assisted living or foster care

7 5 15 facility Hospital 0 0 1 Other 2 2 2 Unknown 1 1 1

Hospice care Enrolled 86 69 102 Not enrolled 35 28 16 Unknown 5 4 1

Timing2.

Minutes between ingestion and unconsciousness 1 min-10 min 84 67 80 11 min or more 11 9 5 Unknown 31 24 34 Range (min - max) 1 min- 60 min 1 min- 180 min

Minutes between ingestion and death 1 min- 90 min 91 72 90 91 min or more 10 8 4 Unknown 25 20 25 Range (min- max) 3 min-18hrs 2 min- 41hrs

Complications2

Regurgitation 2 2 3 Seizures 1 1 0 Awakened after taking prescribed medication 0 0 0 Other 0 0 0 None 121 96 106 Unknown 2 1 10

Emergency Medical Services involvemene Called for intervention after lethal medication

0 0 0 ingested Called for other reason (including to pronounce

2 2 3 death) Not called after lethal medication ingested 117 93 108 Unknown 7 5 8

%

2

52

40 6

84

12

1 2 1

86 13 1

67 4

29

76 3

21

3 0 0 0 89 8

0

3

91 7

9

Notes: 1 Data published in 2013 report http://www.doh.wa.gov/DataandStatisticalReports/VitalStatisticsData/DeathwithDignityData.aspx.

2 Data are collected from the After Death Reporting form. At the time of publication, data are available for 143 participants in 2014 who are known to have ingested the medication.

10

Appendix A

Overview of Death with Dignity Act

The Washington State Death with Dignity Act, chapter 70.245 RCW, was passed by voter initiative on November 4, 2008, and became law on March 5, 2009. The law allows terminally ill adults seeking to end their lives in a humane and dignified manner to request lethal doses of medication from medical and osteopathic physicians. These terminally ill patients must be Washington residents who have an estimated six months (180 days) or less to live. More information on the Death with Dignity Act is available on the Department of Health website (http:/ /www.doh.wa.gov/dwda/).

Role of Department of Health in Monitoring Compliance with the Act

To comply with the act, attending physicians and pharmacists must file documentation with the department. Patient eligibility for participation in the act must be confirmed by two independent physicians (an attending physician and a consulting physician). Within 30 days of writing a prescription for medication under this act, the attending physician must file the following forms with the department:

• Written Request for Medication to End Life Form (completed by the patient) • Attending Physician Compliance Form (completed by the attending physician) • Consulting Physician Compliance Form (completed by the consulting physician)

A psychiatric or psychological evaluation is not required under the terms of the law. However, if the attending or consulting physician requests an evaluation, the psychiatrist or psychologist must complete a Psychiatric/Psychological Consultant Compliance Form and the attending physician must file this form within 30 days of writing the prescription.

If the attending or consulting physician (or the psychiatrist or psychologist, if a referral is made) determines that a patient does not meet the qualifications to receive a prescription for medication under chapter 70.245 RCW, no forms have to be submitted to the department.

Within 30 days of dispensing medication, the dispensing pharmacist must file a Pharmacy Dispensing Record Form.

Within 30 days of a qualified patient's death from ingestion of a lethal dose of medication obtained under the act, or death from any cause, the attending physician must file an Attending Physician After Death Reporting Form.

To receive the immunity protection provided by chapter 70.245 RCW, physicians and pharmacists must make a good faith effort to file required documentation in a complete and timely manner.

Under Washington law, a death certificate must be completed within 72 hours of death and filed with the local health agency where the death occurred. Local health officials may hold death

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certificates for 30 to 60 days before filing them with the state health department. As a result, an After Death Reporting Form may reach the state before the death certificate arrives.

The department received the following documentation for 2014 Death with Dignity participants (people who received medication) as of March 16, 2015:

Confidentiality

Table 5. Documentation Received for 2014 Participants

Form Written Request to End Life Form Attending Physician Compliance Form Consulting Physician Compliance Form Psychiatric/Psychological Consulting Form Pharmacy Dispensing Record Form After Death Reporting Form Death Certificate

Number 165 167 162

6 176 143 169

The Death with Dignity Act requires that the department collect information and make an annual statistical report available to the public (RCW 70.245.150). The law also states that, except as otherwise required by law, the information collected is not a public record. That means it is not subject to public disclosure. To comply with that statutory mandate, the department will not disclose any information that identifies patients, physicians, pharmacists, witnesses, or other participants in activities covered by the Death with Dignity Act. The information presented in this report is limited to items with sufficient numbers in a reporting field to ensure that confidentiality is protected.

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Appendix D

California End of Life Option Act

Assembly Bill No. 15

CHAPTER 1

An act to add and repeal Part 1.85 (commencing with Section 443) ofDivision 1 of the Health and Safety Code, relating to end of life.

[Approved by Governor October 5, 2015. Filed withSecretary of State October 5, 2015.]

legislative counsel’s digest

AB 15, Eggman. End of life.Existing law authorizes an adult to give an individual health care

instruction and to appoint an attorney to make health care decisions for thatindividual in the event of his or her incapacity pursuant to a power ofattorney for health care.

This bill, until January 1, 2026, would enact the End of Life Option Actauthorizing an adult who meets certain qualifications, and who has beendetermined by his or her attending physician to be suffering from a terminaldisease, as defined, to make a request for a drug prescribed pursuant to theseprovisions for the purpose of ending his or her life. The bill would establishthe procedures for making these requests. The bill would also establishspecified forms to request an aid-in-dying drug, under specifiedcircumstances, an interpreter declaration to be signed subject to penalty ofperjury, thereby creating a crime and imposing a state-mandated localprogram, and a final attestation for an aid-in-dying drug. This bill wouldrequire specified information to be documented in the individual’s medicalrecord, including, among other things, all oral and written requests for anaid-in-dying drug.

This bill would prohibit a provision in a contract, will, or other agreementfrom being conditioned upon, or affected by, a person making or rescindinga request for the above-described drug. The bill would prohibit the sale,procurement, or issuance of any life, health, or annuity policy, health careservice plan contract, or health benefit plan, or the rate charged for anypolicy or plan contract, from being conditioned upon or affected by therequest. The bill would prohibit an insurance carrier from providing anyinformation in communications made to an individual about the availabilityof an aid-in-dying drug absent a request by the individual or his or herattending physician at the behest of the individual. The bill would alsoprohibit any communication from containing both the denial of treatmentand information as to the availability of aid-in-dying drug coverage.

This bill would provide a person, except as provided, immunity from civilor criminal liability solely because the person was present when the qualifiedindividual self-administered the drug, or the person assisted the qualifiedindividual by preparing the aid-in-dying drug so long as the person did not

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assist with the ingestion of the drug, and would specify that the immunitiesand prohibitions on sanctions of a health care provider are solely reservedfor conduct of a health care provider provided for by the bill. The bill wouldmake participation in activities authorized pursuant to its provisionsvoluntary, and would make health care providers immune from liability forrefusing to engage in activities authorized pursuant to its provisions. Thebill would also authorize a health care provider to prohibit its employees,independent contractors, or other persons or entities, including other healthcare providers, from participating in activities under the act while on thepremises owned or under the management or direct control of that prohibitinghealth care provider, or while acting within the course and scope of anyemployment by, or contract with, the prohibiting health care provider.

This bill would make it a felony to knowingly alter or forge a request fordrugs to end an individual’s life without his or her authorization or to concealor destroy a withdrawal or rescission of a request for a drug, if it is donewith the intent or effect of causing the individual’s death. The bill wouldmake it a felony to knowingly coerce or exert undue influence on anindividual to request a drug for the purpose of ending his or her life, todestroy a withdrawal or rescission of a request, or to administer anaid-in-dying drug to an individual without their knowledge or consent. Bycreating a new crime, the bill would impose a state-mandated local program.The bill would provide that nothing in its provisions is to be construed toauthorize ending a patient’s life by lethal injection, mercy killing, or activeeuthanasia, and would provide that action taken in accordance with the actshall not constitute, among other things, suicide or homicide.

This bill would require physicians to submit specified forms andinformation to the State Department of Public Health after writing aprescription for an aid-in-dying drug and after the death of an individualwho requested an aid-in-dying drug. The bill would authorize the MedicalBoard of California to update those forms and would require the StateDepartment of Public Health to publish the forms on its Internet Web site.The bill would require the department to annually review a sample of certaininformation and records, make a statistical report of the informationcollected, and post that report to its Internet Web site.

Existing constitutional provisions require that a statute that limits theright of access to the meetings of public bodies or the writings of publicofficials and agencies be adopted with findings demonstrating the interestprotected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.The California Constitution requires the state to reimburse local agencies

and school districts for certain costs mandated by the state. Statutoryprovisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act fora specified reason.

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

SECTION 1. Part 1.85 (commencing with Section 443) is added toDivision 1 of the Health and Safety Code, to read:

PART 1.85. END OF LIFE OPTION ACT

443. This part shall be known and may be cited as the End of Life OptionAct.

443.1. As used in this part, the following definitions shall apply:(a) “Adult” means an individual 18 years of age or older.(b) “Aid-in-dying drug” means a drug determined and prescribed by a

physician for a qualified individual, which the qualified individual maychoose to self-administer to bring about his or her death due to a terminaldisease.

(c) “Attending physician” means the physician who has primaryresponsibility for the health care of an individual and treatment of theindividual’s terminal disease.

(d) “Attending physician checklist and compliance form” means a form,as described in Section 443.22, identifying each and every requirement thatmust be fulfilled by an attending physician to be in good faith compliancewith this part should the attending physician choose to participate.

(e) “Capacity to make medical decisions” means that, in the opinion ofan individual’s attending physician, consulting physician, psychiatrist, orpsychologist, pursuant to Section 4609 of the Probate Code, the individualhas the ability to understand the nature and consequences of a health caredecision, the ability to understand its significant benefits, risks, andalternatives, and the ability to make and communicate an informed decisionto health care providers.

(f) “Consulting physician” means a physician who is independent fromthe attending physician and who is qualified by specialty or experience tomake a professional diagnosis and prognosis regarding an individual’sterminal disease.

(g) “Department” means the State Department of Public Health.(h) “Health care provider” or “provider of health care” means any person

licensed or certified pursuant to Division 2 (commencing with Section 500)of the Business and Professions Code; any person licensed pursuant to theOsteopathic Initiative Act or the Chiropractic Initiative Act; any personcertified pursuant to Division 2.5 (commencing with Section 1797) of thiscode; and any clinic, health dispensary, or health facility licensed pursuantto Division 2 (commencing with Section 1200) of this code.

(i) “Informed decision” means a decision by an individual with a terminaldisease to request and obtain a prescription for a drug that the individualmay self-administer to end the individual’s life, that is based on anunderstanding and acknowledgment of the relevant facts, and that is madeafter being fully informed by the attending physician of all of the following:

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(1) The individual’s medical diagnosis and prognosis.(2) The potential risks associated with taking the drug to be prescribed.(3) The probable result of taking the drug to be prescribed.(4) The possibility that the individual may choose not to obtain the drug

or may obtain the drug but may decide not to ingest it.(5) The feasible alternatives or additional treatment opportunities,

including, but not limited to, comfort care, hospice care, palliative care, andpain control.

(j) “Medically confirmed” means the medical diagnosis and prognosisof the attending physician has been confirmed by a consulting physicianwho has examined the individual and the individual’s relevant medicalrecords.

(k) “Mental health specialist assessment” means one or more consultationsbetween an individual and a mental health specialist for the purpose ofdetermining that the individual has the capacity to make medical decisionsand is not suffering from impaired judgment due to a mental disorder.

(l) “Mental health specialist” means a psychiatrist or a licensedpsychologist.

(m) “Physician” means a doctor of medicine or osteopathy currentlylicensed to practice medicine in this state.

(n) “Public place” means any street, alley, park, public building, anyplace of business or assembly open to or frequented by the public, and anyother place that is open to the public view, or to which the public has access.

(o) “Qualified individual” means an adult who has the capacity to makemedical decisions, is a resident of California, and has satisfied therequirements of this part in order to obtain a prescription for a drug to endhis or her life.

(p) “Self-administer” means a qualified individual’s affirmative,conscious, and physical act of administering and ingesting the aid-in-dyingdrug to bring about his or her own death.

(q) “Terminal disease” means an incurable and irreversible disease thathas been medically confirmed and will, within reasonable medical judgment,result in death within six months.

443.2. (a) An individual who is an adult with the capacity to makemedical decisions and with a terminal disease may make a request to receivea prescription for an aid-in-dying drug if all of the following conditions aresatisfied:

(1) The individual’s attending physician has diagnosed the individualwith a terminal disease.

(2) The individual has voluntarily expressed the wish to receive aprescription for an aid-in-dying drug.

(3) The individual is a resident of California and is able to establishresidency through any of the following means:

(A) Possession of a California driver license or other identification issuedby the State of California.

(B) Registration to vote in California.(C) Evidence that the person owns or leases property in California.

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(D) Filing of a California tax return for the most recent tax year.(4) The individual documents his or her request pursuant to the

requirements set forth in Section 443.3.(5) The individual has the physical and mental ability to self-administer

the aid-in-dying drug.(b) A person shall not be considered a “qualified individual” under the

provisions of this part solely because of age or disability.(c) A request for a prescription for an aid-in-dying drug under this part

shall be made solely and directly by the individual diagnosed with theterminal disease and shall not be made on behalf of the patient, including,but not limited to, through a power of attorney, an advance health caredirective, a conservator, health care agent, surrogate, or any other legallyrecognized health care decisionmaker.

443.3. (a) An individual seeking to obtain a prescription for anaid-in-dying drug pursuant to this part shall submit two oral requests, aminimum of 15 days apart, and a written request to his or her attendingphysician. The attending physician shall directly, and not through a designee,receive all three requests required pursuant to this section.

(b) A valid written request for an aid-in-dying drug under subdivision(a) shall meet all of the following conditions:

(1) The request shall be in the form described in Section 443.11.(2) The request shall be signed and dated, in the presence of two

witnesses, by the individual seeking the aid-in-dying drug.(3) The request shall be witnessed by at least two other adult persons

who, in the presence of the individual, shall attest that to the best of theirknowledge and belief the individual is all of the following:

(A) An individual who is personally known to them or has providedproof of identity.

(B) An individual who voluntarily signed this request in their presence.(C) An individual whom they believe to be of sound mind and not under

duress, fraud, or undue influence.(D) Not an individual for whom either of them is the attending physician,

consulting physician, or mental health specialist.(c) Only one of the two witnesses at the time the written request is signed

may:(1) Be related to the qualified individual by blood, marriage, registered

domestic partnership, or adoption or be entitled to a portion of theindividual’s estate upon death.

(2) Own, operate, or be employed at a health care facility where theindividual is receiving medical treatment or resides.

(d) The attending physician, consulting physician, or mental healthspecialist of the individual shall not be one of the witnesses required pursuantto paragraph (3) of subdivision (b).

443.4. (a) An individual may at any time withdraw or rescind his or herrequest for an aid-in-dying drug, or decide not to ingest an aid-in-dyingdrug, without regard to the individual’s mental state.

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(b) A prescription for an aid-in-dying drug provided under this part maynot be written without the attending physician directly, and not through adesignee, offering the individual an opportunity to withdraw or rescind therequest.

443.5. (a) Before prescribing an aid-in-dying drug, the attendingphysician shall do all of the following:

(1) Make the initial determination of all of the following:(A) (i) Whether the requesting adult has the capacity to make medical

decisions.(ii) If there are indications of a mental disorder, the physician shall refer

the individual for a mental health specialist assessment.(iii) If a mental health specialist assessment referral is made, no

aid-in-dying drugs shall be prescribed until the mental health specialistdetermines that the individual has the capacity to make medical decisionsand is not suffering from impaired judgment due to a mental disorder.

(B) Whether the requesting adult has a terminal disease.(C) Whether the requesting adult has voluntarily made the request for

an aid-in-dying drug pursuant to Sections 443.2 and 443.3.(D) Whether the requesting adult is a qualified individual pursuant to

subdivision (o) of Section 443.1.(2) Confirm that the individual is making an informed decision by

discussing with him or her all of the following:(A) His or her medical diagnosis and prognosis.(B) The potential risks associated with ingesting the requested

aid-in-dying drug.(C) The probable result of ingesting the aid-in-dying drug.(D) The possibility that he or she may choose to obtain the aid-in-dying

drug but not take it.(E) The feasible alternatives or additional treatment options, including,

but not limited to, comfort care, hospice care, palliative care, and paincontrol.

(3) Refer the individual to a consulting physician for medical confirmationof the diagnosis and prognosis, and for a determination that the individualhas the capacity to make medical decisions and has complied with theprovisions of this part.

(4) Confirm that the qualified individual’s request does not arise fromcoercion or undue influence by another person by discussing with thequalified individual, outside of the presence of any other persons, exceptfor an interpreter as required pursuant to this part, whether or not thequalified individual is feeling coerced or unduly influenced by anotherperson.

(5) Counsel the qualified individual about the importance of all of thefollowing:

(A) Having another person present when he or she ingests the aid-in-dyingdrug prescribed pursuant to this part.

(B) Not ingesting the aid-in-dying drug in a public place.

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(C) Notifying the next of kin of his or her request for an aid-in-dyingdrug. A qualified individual who declines or is unable to notify next of kinshall not have his or her request denied for that reason.

(D) Participating in a hospice program.(E) Maintaining the aid-in-dying drug in a safe and secure location until

the time that the qualified individual will ingest it.(6) Inform the individual that he or she may withdraw or rescind the

request for an aid-in-dying drug at any time and in any manner.(7) Offer the individual an opportunity to withdraw or rescind the request

for an aid-in-dying drug before prescribing the aid-in-dying drug.(8) Verify, immediately before writing the prescription for an aid-in-dying

drug, that the qualified individual is making an informed decision.(9) Confirm that all requirements are met and all appropriate steps are

carried out in accordance with this part before writing a prescription for anaid-in-dying drug.

(10) Fulfill the record documentation required under Sections 443.8 and443.19.

(11) Complete the attending physician checklist and compliance form,as described in Section 443.22, include it and the consulting physiciancompliance form in the individual’s medical record, and submit both formsto the State Department of Public Health.

(12) Give the qualified individual the final attestation form, with theinstruction that the form be filled out and executed by the qualified individualwithin 48 hours prior to the qualified individual choosing to self-administerthe aid-in-dying drug.

(b) If the conditions set forth in subdivision (a) are satisfied, the attendingphysician may deliver the aid-in-dying drug in any of the following ways:

(1) Dispensing the aid-in-dying drug directly, including ancillarymedication intended to minimize the qualified individual’s discomfort, ifthe attending physician meets all of the following criteria:

(A) Is authorized to dispense medicine under California law.(B) Has a current United States Drug Enforcement Administration

(USDEA) certificate.(C) Complies with any applicable administrative rule or regulation.(2) With the qualified individual’s written consent, contacting a

pharmacist, informing the pharmacist of the prescriptions, and deliveringthe written prescriptions personally, by mail, or electronically to thepharmacist, who may dispense the drug to the qualified individual, theattending physician, or a person expressly designated by the qualifiedindividual and with the designation delivered to the pharmacist in writingor verbally.

(c) Delivery of the dispensed drug to the qualified individual, theattending physician, or a person expressly designated by the qualifiedindividual may be made by personal delivery, or, with a signature requiredon delivery, by United Parcel Service, United States Postal Service, FederalExpress, or by messenger service.

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443.6. Before a qualified individual obtains an aid-in-dying drug fromthe attending physician, the consulting physician shall perform all of thefollowing:

(a) Examine the individual and his or her relevant medical records.(b) Confirm in writing the attending physician’s diagnosis and prognosis.(c) Determine that the individual has the capacity to make medical

decisions, is acting voluntarily, and has made an informed decision.(d) If there are indications of a mental disorder, refer the individual for

a mental health specialist assessment.(e) Fulfill the record documentation required under this part.(f) Submit the compliance form to the attending physician.443.7. Upon referral from the attending or consulting physician pursuant

to this part, the mental health specialist shall:(a) Examine the qualified individual and his or her relevant medical

records.(b) Determine that the individual has the mental capacity to make medical

decisions, act voluntarily, and make an informed decision.(c) Determine that the individual is not suffering from impaired judgment

due to a mental disorder.(d) Fulfill the record documentation requirements of this part.443.8. All of the following shall be documented in the individual’s

medical record:(a) All oral requests for aid-in-dying drugs.(b) All written requests for aid-in-dying drugs.(c) The attending physician’s diagnosis and prognosis, and the

determination that a qualified individual has the capacity to make medicaldecisions, is acting voluntarily, and has made an informed decision, or thatthe attending physician has determined that the individual is not a qualifiedindividual.

(d) The consulting physician’s diagnosis and prognosis, and verificationthat the qualified individual has the capacity to make medical decisions, isacting voluntarily, and has made an informed decision, or that the consultingphysician has determined that the individual is not a qualified individual.

(e) A report of the outcome and determinations made during a mentalhealth specialist’s assessment, if performed.

(f) The attending physician’s offer to the qualified individual to withdrawor rescind his or her request at the time of the individual’s second oralrequest.

(g) A note by the attending physician indicating that all requirementsunder Sections 443.5 and 443.6 have been met and indicating the steps takento carry out the request, including a notation of the aid-in-dying drugprescribed.

443.9. (a) Within 30 calendar days of writing a prescription for anaid-in-dying drug, the attending physician shall submit to the StateDepartment of Public Health a copy of the qualifying patient’s writtenrequest, the attending physician checklist and compliance form, and theconsulting physician compliance form.

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(b) Within 30 calendar days following the qualified individual’s deathfrom ingesting the aid-in-dying drug, or any other cause, the attendingphysician shall submit the attending physician followup form to the StateDepartment of Public Health.

443.10. A qualified individual may not receive a prescription for anaid-in-dying drug pursuant to this part unless he or she has made an informeddecision. Immediately before writing a prescription for an aid-in-dying drugunder this part, the attending physician shall verify that the individual ismaking an informed decision.

443.11. (a) A request for an aid-in-dying drug as authorized by this partshall be in the following form:

REQUEST FOR AN AID-IN-DYING DRUG TO END MY LIFE IN AHUMANE AND DIGNIFIED MANNER I, ......................................................,am an adult of sound mind and a resident of the State of California.I am suffering from ................, which my attending physician has determinedis in its terminal phase and which has been medically confirmed.I have been fully informed of my diagnosis and prognosis, the nature of theaid-in-dying drug to be prescribed and potential associated risks, the expectedresult, and the feasible alternatives or additional treatment options, includingcomfort care, hospice care, palliative care, and pain control.I request that my attending physician prescribe an aid-in-dying drug that willend my life in a humane and dignified manner if I choose to take it, and Iauthorize my attending physician to contact any pharmacist about my request.INITIAL ONE:............ I have informed one or more members of my family of my decisionand taken their opinions into consideration............. I have decided not to inform my family of my decision............. I have no family to inform of my decision.I understand that I have the right to withdraw or rescind this request at anytime.I understand the full import of this request and I expect to die if I take theaid-in-dying drug to be prescribed. My attending physician has counseled meabout the possibility that my death may not be immediately upon theconsumption of the drug.I make this request voluntarily, without reservation, and without being coerced. Signed:..............................................Dated:............................................... DECLARATION OF WITNESSESWe declare that the person signing this request:(a) is personally known to us or has provided proof of identity;(b) voluntarily signed this request in our presence;(c) is an individual whom we believe to be of sound mind and not under duress,fraud, or undue influence; and

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(d) is not an individual for whom either of us is the attending physician,consulting physician, or mental health specialist.............................Witness 1/Date............................Witness 2/DateNOTE: Only one of the two witnesses may be a relative (by blood, marriage,registered domestic partnership, or adoption) of the person signing this requestor be entitled to a portion of the person’s estate upon death. Only one of thetwo witnesses may own, operate, or be employed at a health care facility wherethe person is a patient or resident.

(b) (1) The written language of the request shall be written in the sametranslated language as any conversations, consultations, or interpretedconversations or consultations between a patient and his or her attendingor consulting physicians.

(2) Notwithstanding paragraph (1), the written request may be preparedin English even when the conversations or consultations or interpretedconversations or consultations were conducted in a language other thanEnglish if the English language form includes an attached interpreter’sdeclaration that is signed under penalty of perjury. The interpreter’sdeclaration shall state words to the effect that:

I, (INSERT NAME OF INTERPRETER), am fluent in English and (INSERTTARGET LANGUAGE).On (insert date) at approximately (insert time), I read the “Request for anAid-In-Dying Drug to End My Life” to (insert name of individual/patient) in(insert target language).Mr./Ms. (insert name of patient/qualified individual) affirmed to me that he/sheunderstood the content of this form and affirmed his/her desire to sign thisform under his/her own power and volition and that the request to sign theform followed consultations with an attending and consulting physician.I declare that I am fluent in English and (insert target language) and furtherdeclare under penalty of perjury that the foregoing is true and correct.Executed at (insert city, county, and state) on this (insert day of month) of(insert month), (insert year).X______Interpreter signatureX______Interpreter printed nameX______Interpreter address

(3) An interpreter whose services are provided pursuant to paragraph (2)shall not be related to the qualified individual by blood, marriage, registereddomestic partnership, or adoption or be entitled to a portion of the person’sestate upon death. An interpreter whose services are provided pursuant toparagraph (2) shall meet the standards promulgated by the CaliforniaHealthcare Interpreting Association or the National Council on Interpretingin Health Care or other standards deemed acceptable by the department forhealth care providers in California.

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(c) The final attestation form given by the attending physician to thequalified individual at the time the attending physician writes the prescriptionshall appear in the following form:

FINAL ATTESTATION FOR AN AID-IN-DYING DRUG TO END MYLIFE IN A HUMANE AND DIGNIFIED MANNER I,......................................................, am an adult of sound mind and a residentof the State of California.I am suffering from ................, which my attending physician has determinedis in its terminal phase and which has been medically confirmed.I have been fully informed of my diagnosis and prognosis, the nature of theaid-in-dying drug to be prescribed and potential associated risks, the expectedresult, and the feasible alternatives or additional treatment options, includingcomfort care, hospice care, palliative care, and pain control.I have received the aid-in-dying drug and am fully aware that this aid-in-dyingdrug will end my life in a humane and dignified manner.INITIAL ONE:............ I have informed one or more members of my family of my decisionand taken their opinions into consideration............. I have decided not to inform my family of my decision............. I have no family to inform of my decision.My attending physician has counseled me about the possibility that my deathmay not be immediately upon the consumption of the drug.I make this decision to ingest the aid-in-dying drug to end my life in a humaneand dignified manner. I understand I still may choose not to ingest the drugand by signing this form I am under no obligation to ingest the drug. Iunderstand I may rescind this request at any time. Signed:..............................................Dated:...............................................Time:.................................................

(1) Within 48 hours prior to the individual self-administering theaid-in-dying drug, the individual shall complete the final attestation form.If aid-in-dying medication is not returned or relinquished upon the patient’sdeath as required in Section 443.20, the completed form shall be delivered

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by the individual’s health care provider, family member, or otherrepresentative to the attending physician to be included in the patient’smedical record.

(2) Upon receiving the final attestation form the attending physician shalladd this form to the medical records of the qualified individual.

443.12. (a) A provision in a contract, will, or other agreement executedon or after January 1, 2016, whether written or oral, to the extent theprovision would affect whether a person may make, withdraw, or rescinda request for an aid-in-dying drug is not valid.

(b) An obligation owing under any contract executed on or after January1, 2016, may not be conditioned or affected by a qualified individual making,withdrawing, or rescinding a request for an aid-in-dying drug.

443.13. (a) (1) The sale, procurement, or issuance of a life, health, orannuity policy, health care service plan contract, or health benefit plan, orthe rate charged for a policy or plan contract may not be conditioned uponor affected by a person making or rescinding a request for an aid-in-dyingdrug.

(2) Pursuant to Section 443.18, death resulting from theself-administration of an aid-in-dying drug is not suicide, and thereforehealth and insurance coverage shall not be exempted on that basis.

(b) Notwithstanding any other law, a qualified individual’s act ofself-administering an aid-in-dying drug shall not have an effect upon a life,health, or annuity policy other than that of a natural death from theunderlying disease.

(c) An insurance carrier shall not provide any information incommunications made to an individual about the availability of anaid-in-dying drug absent a request by the individual or his or her attendingphysician at the behest of the individual. Any communication shall notinclude both the denial of treatment and information as to the availabilityof aid-in-dying drug coverage. For the purposes of this subdivision,“insurance carrier” means a health care service plan as defined in Section1345 of this code or a carrier of health insurance as defined in Section 106of the Insurance Code.

443.14. (a) Notwithstanding any other law, a person shall not be subjectto civil or criminal liability solely because the person was present when thequalified individual self-administers the prescribed aid-in-dying drug. Aperson who is present may, without civil or criminal liability, assist thequalified individual by preparing the aid-in-dying drug so long as the persondoes not assist the qualified person in ingesting the aid-in-dying drug.

(b) A health care provider or professional organization or associationshall not subject an individual to censure, discipline, suspension, loss oflicense, loss of privileges, loss of membership, or other penalty forparticipating in good faith compliance with this part or for refusing toparticipate in accordance with subdivision (e).

(c) Notwithstanding any other law, a health care provider shall not besubject to civil, criminal, administrative, disciplinary, employment,credentialing, professional discipline, contractual liability, or medical staff

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action, sanction, or penalty or other liability for participating in this part,including, but not limited to, determining the diagnosis or prognosis of anindividual, determining the capacity of an individual for purposes ofqualifying for the act, providing information to an individual regarding thispart, and providing a referral to a physician who participates in this part.Nothing in this subdivision shall be construed to limit the application of, orprovide immunity from, Section 443.16 or 443.17.

(d) (1) A request by a qualified individual to an attending physician toprovide an aid-in-dying drug in good faith compliance with the provisionsof this part shall not provide the sole basis for the appointment of a guardianor conservator.

(2) No actions taken in compliance with the provisions of this part shallconstitute or provide the basis for any claim of neglect or elder abuse forany purpose of law.

(e) (1) Participation in activities authorized pursuant to this part shallbe voluntary. Notwithstanding Sections 442 to 442.7, inclusive, a personor entity that elects, for reasons of conscience, morality, or ethics, not toengage in activities authorized pursuant to this part is not required to takeany action in support of an individual’s decision under this part.

(2) Notwithstanding any other law, a health care provider is not subjectto civil, criminal, administrative, disciplinary, employment, credentialing,professional discipline, contractual liability, or medical staff action, sanction,or penalty or other liability for refusing to participate in activities authorizedunder this part, including, but not limited to, refusing to inform a patientregarding his or her rights under this part, and not referring an individualto a physician who participates in activities authorized under this part.

(3) If a health care provider is unable or unwilling to carry out a qualifiedindividual’s request under this part and the qualified individual transferscare to a new health care provider, the individual may request a copy of hisor her medical records pursuant to law.

443.15. (a) Subject to subdivision (b), notwithstanding any other law,a health care provider may prohibit its employees, independent contractors,or other persons or entities, including other health care providers, fromparticipating in activities under this part while on premises owned or underthe management or direct control of that prohibiting health care provideror while acting within the course and scope of any employment by, orcontract with, the prohibiting health care provider.

(b) A health care provider that elects to prohibit its employees,independent contractors, or other persons or entities, including health careproviders, from participating in activities under this part, as described insubdivision (a), shall first give notice of the policy prohibiting participationunder this part to the individual or entity. A health care provider that failsto provide notice to an individual or entity in compliance with thissubdivision shall not be entitled to enforce such a policy against thatindividual or entity.

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(c) Subject to compliance with subdivision (b), the prohibiting healthcare provider may take action, including, but not limited to, the following,as applicable, against any individual or entity that violates this policy:

(1) Loss of privileges, loss of membership, or other action authorized bythe bylaws or rules and regulations of the medical staff.

(2) Suspension, loss of employment, or other action authorized by thepolicies and practices of the prohibiting health care provider.

(3) Termination of any lease or other contract between the prohibitinghealth care provider and the individual or entity that violates the policy.

(4) Imposition of any other nonmonetary remedy provided for in anylease or contract between the prohibiting health care provider and theindividual or entity in violation of the policy.

(d) Nothing in this section shall be construed to prevent, or to allow aprohibiting health care provider to prohibit, any other health care provider,employee, independent contractor, or other person or entity from any of thefollowing:

(1) Participating, or entering into an agreement to participate, in activitiesunder this part, while on premises that are not owned or under themanagement or direct control of the prohibiting provider or while actingoutside the course and scope of the participant’s duties as an employee of,or an independent contractor for, the prohibiting health care provider.

(2) Participating, or entering into an agreement to participate, in activitiesunder this part as an attending physician or consulting physician while onpremises that are not owned or under the management or direct control ofthe prohibiting provider.

(e) In taking actions pursuant to subdivision (c), a health care providershall comply with all procedures required by law, its own policies orprocedures, and any contract with the individual or entity in violation of thepolicy, as applicable.

(f) For purposes of this section:(1) “Notice” means a separate statement in writing advising of the

prohibiting health care provider policy with respect to participating inactivities under this part.

(2) “Participating, or entering into an agreement to participate, in activitiesunder this part” means doing or entering into an agreement to do any oneor more of the following:

(A) Performing the duties of an attending physician as specified in Section443.5.

(B) Performing the duties of a consulting physician as specified in Section443.6.

(C) Performing the duties of a mental health specialist, in the circumstancethat a referral to one is made.

(D) Delivering the prescription for, dispensing, or delivering the dispensedaid-in-dying drug pursuant to paragraph (2) of subdivision (b) of, andsubdivision (c) of, Section 443.5.

(E) Being present when the qualified individual takes the aid-in-dyingdrug prescribed pursuant to this part.

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(3) “Participating, or entering into an agreement to participate, in activitiesunder this part” does not include doing, or entering into an agreement todo, any of the following:

(A) Diagnosing whether a patient has a terminal disease, informing thepatient of the medical prognosis, or determining whether a patient has thecapacity to make decisions.

(B) Providing information to a patient about this part.(C) Providing a patient, upon the patient’s request, with a referral to

another health care provider for the purposes of participating in the activitiesauthorized by this part.

(g) Any action taken by a prohibiting provider pursuant to this sectionshall not be reportable under Sections 800 to 809.9, inclusive, of the Businessand Professions Code. The fact that a health care provider participates inactivities under this part shall not be the sole basis for a complaint or reportby another health care provider of unprofessional or dishonorable conductunder Sections 800 to 809.9, inclusive, of the Business and ProfessionsCode.

(h) Nothing in this part shall prevent a health care provider from providingan individual with health care services that do not constitute participationin this part.

443.16. (a) A health care provider may not be sanctioned for any of thefollowing:

(1) Making an initial determination pursuant to the standard of care thatan individual has a terminal disease and informing him or her of the medicalprognosis.

(2) Providing information about the End of Life Option Act to a patientupon the request of the individual.

(3) Providing an individual, upon request, with a referral to anotherphysician.

(b) A health care provider that prohibits activities under this part inaccordance with Section 443.15 shall not sanction an individual health careprovider for contracting with a qualified individual to engage in activitiesauthorized by this part if the individual health care provider is acting outsideof the course and scope of his or her capacity as an employee or independentcontractor of the prohibiting health care provider.

(c) Notwithstanding any contrary provision in this section, the immunitiesand prohibitions on sanctions of a health care provider are solely reservedfor actions of a health care provider taken pursuant to this part.Notwithstanding any contrary provision in this part, health care providersmay be sanctioned by their licensing board or agency for conduct and actionsconstituting unprofessional conduct, including failure to comply in goodfaith with this part.

443.17. (a) Knowingly altering or forging a request for an aid-in-dyingdrug to end an individual’s life without his or her authorization or concealingor destroying a withdrawal or rescission of a request for an aid-in-dyingdrug is punishable as a felony if the act is done with the intent or effect ofcausing the individual’s death.

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(b) Knowingly coercing or exerting undue influence on an individual torequest or ingest an aid-in-dying drug for the purpose of ending his or herlife or to destroy a withdrawal or rescission of a request, or to administeran aid-in-dying drug to an individual without his or her knowledge orconsent, is punishable as a felony.

(c) For purposes of this section, “knowingly” has the meaning providedin Section 7 of the Penal Code.

(d) The attending physician, consulting physician, or mental healthspecialist shall not be related to the individual by blood, marriage, registereddomestic partnership, or adoption, or be entitled to a portion of theindividual’s estate upon death.

(e) Nothing in this section shall be construed to limit civil liability.(f) The penalties in this section do not preclude criminal penalties

applicable under any law for conduct inconsistent with the provisions ofthis section.

443.18. Nothing in this part may be construed to authorize a physicianor any other person to end an individual’s life by lethal injection, mercykilling, or active euthanasia. Actions taken in accordance with this part shallnot, for any purposes, constitute suicide, assisted suicide, homicide, or elderabuse under the law.

443.19. (a) The State Department of Public Health shall collect andreview the information submitted pursuant to Section 443.9. The informationcollected shall be confidential and shall be collected in a manner that protectsthe privacy of the patient, the patient’s family, and any medical provider orpharmacist involved with the patient under the provisions of this part. Theinformation shall not be disclosed, discoverable, or compelled to be producedin any civil, criminal, administrative, or other proceeding.

(b) On or before July 1, 2017, and each year thereafter, based on theinformation collected in the previous year, the department shall create areport with the information collected from the attending physician followupform and post that report to its Internet Web site. The report shall include,but not be limited to, all of the following based on the information that isprovided to the department and on the department’s access to vital statistics:

(1) The number of people for whom an aid-in-dying prescription waswritten.

(2) The number of known individuals who died each year for whomaid-in-dying prescriptions were written, and the cause of death of thoseindividuals.

(3) For the period commencing January 1, 2016, to and including theprevious year, cumulatively, the total number of aid-in-dying prescriptionswritten, the number of people who died due to use of aid-in-dying drugs,and the number of those people who died who were enrolled in hospice orother palliative care programs at the time of death.

(4) The number of known deaths in California from using aid-in-dyingdrugs per 10,000 deaths in California.

(5) The number of physicians who wrote prescriptions for aid-in-dyingdrugs.

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(6) Of people who died due to using an aid-in-dying drug, demographicpercentages organized by the following characteristics:

(A) Age at death.(B) Education level.(C) Race.(D) Sex.(E) Type of insurance, including whether or not they had insurance.(F) Underlying illness.(c) The State Department of Public Health shall make available the

attending physician checklist and compliance form, the consulting physiciancompliance form, and the attending physician followup form, as describedin Section 443.22, by posting them on its Internet Web site.

443.20. A person who has custody or control of any unused aid-in-dyingdrugs prescribed pursuant to this part after the death of the patient shallpersonally deliver the unused aid-in-dying drugs for disposal by deliveringit to the nearest qualified facility that properly disposes of controlledsubstances, or if none is available, shall dispose of it by lawful means inaccordance with guidelines promulgated by the California State Board ofPharmacy or a federal Drug Enforcement Administration approved take-backprogram.

443.21. Any governmental entity that incurs costs resulting from aqualified individual terminating his or her life pursuant to the provisions ofthis part in a public place shall have a claim against the estate of the qualifiedindividual to recover those costs and reasonable attorney fees related toenforcing the claim.

443.215. This part shall remain in effect only until January 1, 2026, andas of that date is repealed, unless a later enacted statute, that is enactedbefore January 1, 2026, deletes or extends that date.

443.22. (a) The Medical Board of California may update the attendingphysician checklist and compliance form, the consulting physiciancompliance form, and the attending physician followup form, based on thoseprovided in subdivision (b). Upon completion, the State Department ofPublic Health shall publish the updated forms on its Internet Web site.

(b) Unless and until updated by the Medical Board of California pursuantto this section, the attending physician checklist and compliance form, theconsulting physician compliance form, and the attending physician followupform shall be in the following form:

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Check one of the following (required):

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Check one of the following (required):

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The attending physician must complete this form in its entirety and sign Part A and Part B.

All information is

Part A may be left blank. The attending physician must complete and sign Part B of the form.

The licensed health care provider must complete and sign Part A of this form. The attendingphysician must complete and sign Part B of the form.

Part A may be left blank. The attending physician must complete and sign Part B of the form.

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A concern about . . .

SEC. 2. The Legislature finds and declares that Section 1 of this act,which adds Section 443.19 to the Health and Safety Code, imposes alimitation on the public’s right of access to the meetings of public bodiesor the writings of public officials and agencies within the meaning of Section3 of Article I of the California Constitution. Pursuant to that constitutionalprovision, the Legislature makes the following findings to demonstrate theinterest protected by this limitation and the need for protecting that interest:

(a) Any limitation to public access to personally identifiable patient datacollected pursuant to Section 443.19 of the Health and Safety Code asproposed to be added by this act is necessary to protect the privacy rightsof the patient and his or her family.

(b) The interests in protecting the privacy rights of the patient and his orher family in this situation strongly outweigh the public interest in havingaccess to personally identifiable data relating to services.

(c) The statistical report to be made available to the public pursuant tosubdivision (b) of Section 443.19 of the Health and Safety Code is sufficientto satisfy the public’s right to access.

SEC. 3. The provisions of this part are severable. If any provision ofthis part or its application is held invalid, that invalidity shall not affect otherprovisions or applications that can be given effect without the invalidprovision or application.

SEC. 4. No reimbursement is required by this act pursuant to Section 6of Article XIII B of the California Constitution because the only costs thatmay be incurred by a local agency or school district will be incurred becausethis act creates a new crime or infraction, eliminates a crime or infraction,or changes the penalty for a crime or infraction, within the meaning ofSection 17556 of the Government Code, or changes the definition of a crimewithin the meaning of Section 6 of Article XIII B of the CaliforniaConstitution.

O

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Appendix E

Governor Jerry Brown’s Letter on California’s End of Life Option Act

' \ \

OF F ICE OF THE GOVERNOR

nr.r 5 2015

To the Members of the California State Assembly:

ABx2 15 is not an ordinary bill because it deals with life and death. The crux of the matter is whether the State of California should continue to make it a crime for a dying person to end his life, no matter how great his pain or suffering.

I have carefully read the thoughtful opposition materials presented by a number of doctors, religious leaders and those who champion disability rights. I have considered the theological and religious perspectives that any deliberate shortening of one's life is sinful.

I have also read the letters of those who support the bill, including heartfelt pleas from Brittany Maynard's family and Archbishop Desmond Tutu. In addition, I have discussed this matter with a Catholic Bishop, two of my own doctors and former classmates and friends who take varied, contradictory and nuanced positions.

In the end, I was left to reflect on what I would want in the face of my own death.

I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I wouldn't deny that right to others.

Sincerely,

Eill:& £'1~~

GOVERNOR EDM UND G. BROWN JR . • SACRAMENTO, CALIFORNIA 95814 • (916) 445 - 284 1

Appendix F

Hanson Bridgett Alert re CA Bill

------ ------- - --

OCTOBER 27,2015 I HANSON BRIDGETT SENIOR HOUSING AND CARE PRACTICE

New California Assisted Suicide

Law Gives Senior Care Providers

Limited Protection

by Pamela S. Kaufmann & Jillian

Somers Donovan

- -- ·- ·--··~~-

GROUP !

On October 5, 2015, Governor Brown signed the controversial End of Life Option Act (the "Act"), making California the fourth state to enact legislation allowing terminally ill individuals to take life-ending drugs.~ According to the Death with Dignity National Centerl21, 26 state legislatures introduced or reintroduced bills addressing the right of terminally ill people to end their own lives during the 2015 session. Given the high-profile passage of the bill in California, more such laws are likely to be enacted.

The Act takes effect 90 days after the end of the special legislative session, which is expected to occur next spring. Implementation may be delayed by a proposed referendum to overturn the Act.

The new law raises several questions for senior care providers. For example, how does it apply in different licensed settings? What role, if any, may the provider play in a resident's end-of-life decision? Can a provider refuse to participate and prohibit its staff from participating?

The Act from 5000 Feet

The Act addresses a wide array of issues, from the circumstances under which a terminally ill individual may take aid-in-dying drugs, to the role of the attending physician, the availability of various immunities, and the effect of assisted suicide on insurance policies, contracts, and wills. The provisions below are critical to understanding the Act's impact on senior care and housing providers.

Qualified Individual

The Act allows a mentally and physically capable individual with a terminal illness to request and self-administer an aid-in-dying drug. To prevent abuse or rash decisions, the individual:

• Must be a California resident with a medically confirmed incurable and irreversible disease that will result in death with in six months;

• Must personal ly, voluntarily, and specifical ly request a prescription for an aid-in-dying drug:

) Two oral requests must be made at least 15 days apart

PG 2

followed by a written request to the individual's attending physician; and ) The written request must be signed and dated in the presence of two witnesses, on ly one of whom

can be related to the individual or own, operate, or be employed by a health care facility at which the qualified individual resides;

• May withdraw or rescind the request at any time and in any manner; and • Must complete a final attestation within 48 hours prior to self-administering the drugs.

Self-Administration

Self-administration is defined in the Act as "an affirmative, conscious, and physical act of administering and ingesting the aid-in-dying drug." Thus, no person, not even a nurse or physician, may assist the person with ingesting the drug. (They can assist with preparing the drug; however, "preparation" is not defined.) This means that a skilled nursing facility ("SNF") resident who has mental capacity, but a disabling condition that prevents muscle movement, cannot take an aid-in-dying drug.

Request

Only the terminally ill individual may make a request for an aid-in-dying drug. No other person, including family and legally recognized health care decision makers, such as agents under an advance health care directive or conservators, can request a prescription under the Act. Thus, a person who has dementia or otherwise lacks capacity to make medical decisions cannot request aid-in-dying drugs and cannot have an authorized agent make the request on their behalf.

"Participating in Activities" under the Act

The Act protects certain people and entities when they "participate in activities" authorized under the Act. These activities include (for appropriately licensed persons) delivering a prescription for, dispensing, or delivering the dispensed aid-in-dying drug; if applicable, performing the duties of a consulting or attending physician or a mental health specialist under the Act; and being present when the individual takes the aidin-dying drug.

Protections for Health Care Providers

The Act insulates "Health Care Providers," including health facilities such as general acute care hospitals, hospice facilities, and SNFs, from liability when they participate in the following activities: determining the diagnosis or prognosis of an individual, determining the capacity of an individual for purposes of qualifying for the Act, providing information to an individual regarding the Act, and providing a referral to a physician who participates in activities under the Act. Furthermore, no actions taken in compliance with the Act will support a claim of neglect or elder abuse.

Critically, the Act does not mention residentia l care facilities for the elderly ("RCFE") or unlicensed housing providers. Thus, RCFEs, unlicensed housing, and the residential portion of continuing care retirement communities ("CCRCs") and multilevel retirement communities ("MLRCs") are not protected from liability if they participate- or refuse to participate- in activities that Health Care Providers may engage in under the Act. However, they do not lose the rights of any person under the Act to be present when a resident takes an aid-in-dying drug.

Voluntary Activities

PG 3

The Act is voluntary: it does not require Health Care Providers to participate in activities allowed under the Act, and they are not subject to liability for refusing to participate in the activities outlined in the law. In fact, a Health Care Provider may prohibit its employees and independent contractors from participating in these activities when they act: 1) on premises that the provider owns, manages, or directly controls; or (2) in the course and scope of their employment or contracted services. The Health Care Provider must give staff and contractors notice of its policy before implementing it. Once it does, it may take corrective action against employees or independent contractors who violate its policy.

Unanswered Questions

Although the Act is very detailed, it fails to address several questions, particularly for RCFEs and unlicensed housing providers. For example:

• Can these providers require residents to disclose their end-of-life plans? • Can they prohibit residents from self-administering aid-in-dying drugs on their campus? • Can they prohibit staff and contractors from participating in activities in which Health Care Providers

may engage (or refuse to engage) under the Act? • Should they allow a resident to take an aid-in-dying drug in a shared apartment? • Must an RCFE call "911" if a resident is found dying after ingesting an end-of-life drug? • Can (or should) the RCFE centrally store the drug? If it does, what security measures are required to

prevent unintended access to the drug?

The Department of Social Services has not yet furnished guidance on the RCFE issues. Unlicensed housing providers (and other providers) will want to identify best practices and consult with their insurers.

Other End-of-Life Planning

Nothing in the Act precludes a senior care provider from discussing end-of-life planning with residents, encouraging them to prepare advance health care directives, or exploring hospice, comfort care, and palliative care alternatives. In fact, the Act requires a physician prescribing an aid-in-dying drug to discuss comfort care, hospice and palliative care alternatives with his patient. And in various licensed settings, providers must inform residents of their rights to complete an advance health care directive. These issues also often arise in the course of care planning.

Next Steps

All providers, whether or not they are Health Care Providers, will want to take several steps to address the Act: (1) discuss and articu late in a written policy their position regarding the use of aid-in-dying drugs on their campuses and the involvement, if any, of staff and contractors; (2) train their staff regarding their policy; (3) disclose their policy to new and existing residents; and (4) develop protocols for addressing endof-life planning, hospice and comfort care, mental health issues, grief, and other end-of-life issues with residents. It is not too early to start exploring these issues.

Readers with questions are welcome to contact the authors.

l2_! Washington, Oregon, and Vermont have right-do-die statutes. Montana has judicial precedent allowing terminally ill individuals to take their own lives.

[2J http://www.deathwithdignity.org/advocates/national

For more information, please contact:

Pamela 5. Kaufmann, Partner 415-995-5043 [email protected]

Jillian Somers Donovan, Associate 415-995-5101 [email protected]

PG4

DISCLAIMER: This publication does not constitute legal advice. Readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented. Copyright© Hanson Bridgett LLP

Appendix G

Model Facility Policies Allowing Participation in Right-To-Die Decisions

The following sample “Death With Dignity Act Policies and Procedures (Nursing Facility Opt In)” was authored by Gabriela Sanchez, Shareholder at Lane Powell PC. Contact her via email at [email protected].

Page 1 – Death With Dignity Act Policies and Procedures (Nursing Facility Opt In)

DEATH WITH DIGNITY ACT POLICIES AND PROCEDURES (NURSING FACILITY OPT IN)

Introduction: Oregon’s Death with Dignity Act (“the Act”) enables competent persons whose attending and consulting physician determine that the person is terminally ill to request and self-administer aid-in-dying medication to end the person’s life in a humane and dignified manner. Participation under the Act is voluntary for both residents and providers. Policy Statements: 1. The Facility is sensitive to balancing a competent resident’s right to choose to

participate in the Act and the Facility’s responsibility to provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

2. Based on the Facility’s responsibilities and obligations to residents, including

the right of residents to be treated with dignity and respect and the right to choose treatment or medications, the Facility has chosen to allow residents to participate in and under the Act subject to the requirements under this Policy.

3. The Facility requests that if residents wish to obtain or have obtained aid-in-

dying medication to end their life under the Act, that the residents notify the Facility.

Policy: It is the policy of this Facility to allow residents the freedom to exercise their right under the Act to request and self-administer aid-in-dying medication to end a resident’s life. The process will be conducted in accordance with applicable state statutes, regulations, and Facility policies. At no time, in any part of the process, will the Facility or its staff actively participate in or under the Act or assist the resident to do so. Procedure: Upon awareness of a resident’s intent to exercise his or her right to request a medication for the purpose of ending his or her life the Facility will proceed as follows. 1. If a resident is making a written request for aid-in-dying medication under the

Act, the Act requires that the resident must have at least two witnesses, who in the presence of the resident, must attest that the resident is competent, acting voluntarily and is not being coerced. If the resident is residing in a nursing home at the time the request is made, one of the witnesses must be designated by the nursing home. The Facility will designate as a witness an individual with some familiarity with the resident. Witnesses can be, but are not limited to, the long term care ombudsman, a social worker, or chaplain. Under no circumstances shall the Facility designate a relative of the resident


by blood, marriage or adoption or any individual who under any will or by operation of law would be entitled to inherit any portion of the resident’s estate.

2. Under no circumstances will the owner, operator or any employee or agent of the Facility serve as a witness to any written request by a resident for aid-in-dying medication that the resident may self administer to end his or her life under the act.

3. Under no circumstances will Facility staff be allowed or required to attend or

otherwise be present during and after the ingestion of a lethal dose of aid-in-dying medication, except for the delivery of comfort care services as outlined in the resident’s service plan. If any Facility employee chooses not to provide comfort care during this period, the Facility will allow the employee to recuse him or herself from providing care and will identify another employee to provide comfort care.

4. Conduct an immediate service plan review with the resident and the

resident’s designated representative or family member to discuss the following:

a. Encouragement to involve the assistance of a hospice agency;

b. Limitations of the Facility’s involvement in all aspects of the death with

dignity process;

c. Review of the resident’s Advance Directive, CPR status and Physician Orders for Life Sustaining Treatment (POLST) form for any changes to ensure the directives and orders are consistent with the resident’s desires;

d. Providing documentation addressing the death with dignity request that

should be provided to the Facility;

e. Where the dying process will occur;

f. Who the resident has designated to be present when the ingestion of the aid-in-dying medication occurs (Facility staff will not be allowed under any circumstances to be designated or other wise present, except for the delivery of comfort care services as outlined in the service plan); and

g. To discuss this Policy.

5. Ensure the resident’s service plan is updated to reflect the following:


a. Resident’s desire to exercise the right to death with dignity, and confirm whether the resident has obtained a prescription for aid-in-dying medicationaid-in-dying medication;

b. The name and contact information of who the resident has designated

to be present during the dying process; (Facility staff will not be allowed under any circumstances to be designated or otherwise present, except for the delivery of comfort care services as outlined in the service plan);

c. Resident’s preferred comfort measures during the dying process; and

d. Confirm who the resident has designated to dispose of any unused

aid-in-dying medication. Under no circumstances, may the resident designate a Facility employee to dispose of the aid-in-dying medication.

6. Obtain and maintain, in the resident’s file, a copy of the resident’s request for

aid-in-dying medication to end his or her life, signed by two witnesses.

7. If practicable, obtain and maintain, in the resident’s file, a copy of the attending physician’s written prescription authorizing dispensing of the lethal dose of aid-in-dying medication.

8. Obtain and maintain the consulting physician’s written confirmation that the

resident is suffering from a terminal condition.

9. Ensure that the lethal dose of aid-in-dying medication, once obtained, is secured in a locked cabinet in the resident’s room at all times or is stored offsite. The lethal dose of aid-in-dying medication shall only be accessible to the resident, his or her designated representative or family member or attending physician. The Facility shall not have access to the aid-in-dying medication and shall not dispense any such medication to the resident.

10. Facility staff will not take possession of the aid-in-dying medication for storage

or delivery. The Facility will also not be responsible for disposing of the aid-in-dying medication in the event it is not used or only a portion is used.

11. If at any time following the ingestion of the lethal dose of aid-in-dying

medication, medical treatment is requested by the resident, the Facility’s involvement will be limited to calling 911 on behalf of the resident, or his or her representative or family member.

-END-

Page 1 of 3 Physician Assisted Suicide - Washington State

Physician Assisted Suicide - Washington State

Introduction Balancing philosophy and choice

Washington State's “Death with Dignity Act” was approved by voters on November 4, 2008. At its core, the Act provides that a competent Washington resident who has been determined by both an attending physician and a consulting physician to be suffering from a terminal disease and has voluntarily expressed a wish to die, may make a written request for medication that the patient may self-administer to end his or her life.

A facility must be sensitive to the tension between its desire to celebrate the full richness of each resident's life and future with honoring a competent, qualified resident's decision to legally end his or her life in a humane and dignified manner. A facility should strive to keep its affirmations true and simple while maintaining compliance with applicable law. In light of these considerations, the following procedures are provided.

Procedure Requirements State legal requirements:

Any resident that desires to commit physician assisted suicide must comply with applicable state law. Accordingly, the resident must have been determined by both an attending physician and a consulting physician to be suffering from a terminal disease. A terminal disease is defined under Washington law as an incurable disease that will “within reasonable medical judgment” lead to death within six months.

To make the request, the resident must first make an oral request for life ending medication to an attending physician, make a written request, and make a second oral request 15 days after the first oral request. The attending physician cannot prescribe medication until after the 15 day period expires, and at least 48 hours must elapse between the date the resident signs a written request and the date the physician writes a prescription.

The written request must be signed and dated by the resident and witnessed by at least two individuals who in the presence of the resident attest that the he or she is competent, acting voluntarily and is not being coerced to sign that request. At least one of the witnesses must not be a relative, a person entitled to inherit under the patient’s will or under law, or an owner, operator, or employee of a “health care facility” where the patient is receiving treatment. An employee may not be a witness to the written request, and community staff may not designate who should serve as a witness.

The law outlines a number of responsibilities of the attending physician prescribing the lethal dose of medication and of a consulting physician to assure that the resident has a terminal disease, has made


the request voluntarily, and is making an informed decision. The lethal medication must also be dispensed directly to the resident by the attending physician or a pharmacist.

Resident competence and choice requirements:

Under state law, the resident must be competent to make an informed decision to voluntarily end his or her life. "Competent" means that, in the opinion of a court or in the opinion of the resident's attending physician or consulting physician, psychiatrist, or psychologist, the resident has the ability to make and communicate an informed decision to health care providers. An "informed decision" means a decision by a qualified patient, to request and obtain a prescription for medication that the qualified patient may self-administer to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of: (a) his or her medical diagnosis, (b) his or her prognosis, (c) the potential risks associated with taking the medication to be prescribed, (d) the probably result of taking the medication to be prescribed, and (e) the feasible alternatives including, but not limited to, comfort care, hospice care and pain control. No family member or responsible party may make the decision on that resident's behalf, even if that responsible party is the resident's power of attorney or conservator. All decisions regarding a resident's informed consent and competency shall be made by a court or the resident's attending physician or consulting physician, psychiatrist, or psychologist; no such decisions will be made by any employee.

Process If a resident notifies the Community of his or her intention to terminate his or her life through physician assisted suicide, then the Community should follow the process below:

• Review this policy and procedure and be prepared to discuss them with the resident, the responsible party (if the resident consents to involving the responsible party), and the resident's physician.

• Notify the resident's physician.

• With the resident's consent, notify the resident's family and/or responsible party.

• No staff member can serve as a witness to any request by a resident for medication to end his or her life. No staff member may designate who should serve as a witness or make witness suggestions to the resident.

• No staff member can take possession of the lethal dose of medication, or ancillary medication prescribed to minimize discomfort, for storage, delivery, or administration. The resident is responsible for obtaining, storing, and self-administering the lethal dose of medication and ancillary medication.

• The Community should request a copy of the written request for lethal drugs signed by two witnesses and place a copy in the resident’s file.

• The Community should request a copy of confirmation by the attending and consulting physician that the resident is competent, acting voluntarily, and has a terminal illness and 6 months or less life expectancy and place a copy in the resident's file.

• The lethal dose of medication, and ancillary medication, must be kept locked in the resident’s room where it is inaccessible to anyone other than the resident and/or his or her designees; alternatively, if the resident so desires, the resident's family may


maintain control of the lethal dose of medication and bring it to the Community at the time of the suicide.

• Upon the Community's awareness of the resident’s intent to exercise their right to request a medication for the purpose of ending his or her life, the Community will conduct an immediate service plan review with the resident and, if the resident so desires, the resident’s designated representative to discuss the following:

- Encourage involvement of a hospice agency;

- Limitations on the Community’s involvement in the assisted suicide process;

- Storage and disposal of the lethal medication and ancillary medication;

- Review CPR status and POLST forms for needed changes;

- Discuss where the dying process will occur;

- Discuss the resident's preferred comfort measures during dying process; and

- Review who the resident has designated to be present when ingesting the lethal medication. Other than providing comfort care to the resident as outlined in the service plan, no staff member shall be designated to be present during the ingestion of the lethal medication.

• Update the resident’s service plan to reflect the resident’s desire to terminate his/her life, and who the resident has designated to be present during the dying process.

• If at any time after ingestion, if medical treatment is requested by the resident, the Community shall call 911 immediately.

• Any unused portion of the lethal dosage must be disposed of by the family or other designee of the resident. No staff member may be designated to dispose of any remaining lethal medication.

Family involvement A resident's decision to voluntarily terminate his or her life may be difficult for loved ones to understand, but it is ultimately the resident's decision. It is important that families are supported during this process. If the resident so desires, Community staff can assist by communicating and involving families in the service plan review and during the time the lethal medication has been consumed.

Employee notifications and considerations The Community should communicate the resident's choice with all staff that might be affected. Some care staff may have moral and ethical objections to a resident's decision to terminate his or her life. The Community should respect any employee's right to recuse him or herself from this resident's presence to provide comfort care at the time of the physician assisted suicide will take place and should assign a different caregiver to provide comfort care should this occur. In no event will any staff member be directly involved in the assisted suicide (i.e., no staff member will be permitted to provide the resident with the medication or assist the resident in taking the medication).

Appendix H

Model Facility Policies Disallowing Participation in Right-To-Die Decisions

The following sample “Death With Dignity Act Policies and Procedures (Nursing Facility Opt Out)” was authored by Gabriela Sanchez, Shareholder at Lane Powell PC. Contact her via email at [email protected].

Page 1 – Death With Dignity Act Policies and Procedure (Nursing Facility Opt Out)

DEATH WITH DIGNITY ACT POLICIES AND PROCEDURES (NURSING FACILITY OPT OUT)

Introduction: Oregon’s Death with Dignity Act (“the Act”) enables competent persons whose attending and consulting physician determine that the person is terminally ill to request and self-administer medication to end the person’s life in a humane and dignified manner. Participation under the Act is voluntary for both residents and providers. Policy Statements: 1. The Facility is sensitive to balancing a competent resident’s right to choose to

participate in the Act and the Facility’s responsibility to provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

2. Based on the Facility’s responsibilities and obligations to residents, it has

chosen not to participate in or under the Act. It has further decided to prohibit any other health care provider or its employees from participating in or under the Act at the Facility.

3. Nothing in this policy prohibits or prevents a competent resident from

choosing to participate in or under the Act if he or she meets the requirements under the Act, and provided that the resident participates in and under the Act off the Facility’s premises.

4. Nothing in this policy prohibits the Facility from providing residents information

regarding the Act. 5. The Facility requests that if a resident wishes to obtain or has obtained

medication to end their life under the Act, that it notify the Facility so that it may comply with resident assessment requirements.

Policy: It is the policy of this Facility not to allow residents to remain at the Facility and exercise their options in and under the Act. It is also the policy of this Facility to prohibit other health care providers, its employees, or independent contractors from participating in or under the Act at the Facility. Procedure: Upon awareness of a resident’s intent to exercise their right to request a medication for the purpose of ending life the Facility will proceed as follows. 1. If a resident is making a written request for aid-in-dying medication under the

Act, the Act requires that they must have at least two witnesses, who in the presence of the resident, must attest that the resident is competent, acting voluntarily and is not being coerced. If the resident is residing in a nursing


home at the time the request is made, one of the witnesses must be designated by the nursing home. The Facility will designate as a witness an individual with some familiarity with the resident. Witnesses can be, but are not limited to, the long term care ombudsman, a social worker, or chaplain. Under no circumstances shall the Facility designate a relative of the resident by blood, marriage, or adoption or any individual who under any will or by operation of law would be entitled to inherit any portion of the estate of the resident.

2. Under no circumstances will the owner, operator, or any employee or agent of

the Facility serve as a witness to any written request by a resident at the Facility for medication that the resident may self-administer to end his or her life under the Act.

3. Except as discussed in this Policy, Facility employees are not allowed to

assist the resident in the dying process or engage in any other action authorized under the Act at the Facility.

4. The Facility will conduct an immediate service plan review with the resident

and designated representative or family member to discuss the following: a. Encouragement to involve the assistance of a hospice agency;

b. Limitations of the Facility’s involvement in all aspects of the death with

dignity process as set forth in the Act;

c. Review of the resident’s, Advance Directive, CPR status and POLST form for any changes to determine if it is reflective of the resident’s wishes to exercise their options under the Act;

d. Where the dying process will be occurring; and

e. Discuss this Policy.

5. If the resident has expressed intent to end his or her life in the Facility the

resident and/or his or her representative or family member will be informed that the resident’s needs cannot be met by the Facility.

a. The resident and his/her representatives or family members will be

encouraged to initiate the dying process elsewhere; and

b. If the resident and his or her family members refuse to initiate the dying process elsewhere, the resident and/or his or her family member will be informed that transfer/discharge proceeding will be implemented.


6. If the resident transfers to another facility, the Facility will provide a copy of the resident’s relevant medical records to the new facility.

7. If the resident consumes aid-in-dying medication to end his or her life in

violation of this Policy, Facility employees and staff are not allowed to be present or assist during the dying process, other than to meet the Facility’s legal obligations to provide comfort care. If any Facility employee chooses not to provide comfort care during this period, the Facility will allow the employee to recuse him or herself from providing care and will identify another employee to provide comfort care. Further, the Facility will follow POLST or CPR Status orders. If none are available, Facility employees are instructed to call 911 if a resident has consumed medication to aid-in-dying, and commence CPR per Facility policy. Also, if the resident requests assistance after ingesting the medication to bring about death, the Facility will call 911 for assistance.

8. Health care providers are prohibited from participating in or under the Act at the Facility, and are subject to sanctions set forth in the Act for failing to follow this Policy. Health care providers should contact the Facility’s Administrator for further information.

-END-

Page 1 – Death With Dignity Act Policies and Procedures (Assisted Living Opt Out)

DEATH WITH DIGNITY ACT POLICIES AND PROCEDURES (Assisted Living Opt Out)

Introduction: Oregon’s Death with Dignity Act (“the Act”) enables competent persons whose attending and consulting physician determine that the person is terminally ill to request and self-administer medication to end the person’s life in a humane and dignified manner. Participation under the Act is voluntary for both residents and providers. Policy Statements: 1. The Community is sensitive to balancing a competent resident’s right to

choose to participate in the Act and the Community’s responsibility to promote the safety and well-being of its residents.

2. Based on the Community’s responsibilities and obligations to residents, it has

chosen not to participate in or under the Act. It has further decided to prohibit any other health care provider or its employees from participating in or under the Act at the Community.

3. Nothing in this policy prohibits or prevents a competent resident from

choosing to participate in or under the Act if he or she meets the requirements under the Act, and provided that the resident participates in and under the Act off the Community’s premises.

4. Nothing in this policy prohibits the Community from providing residents

information regarding the Act. 5. The Community requests that if a resident wishes to obtain or has obtained

medication to end their life under the Act, that it notify the Community. Policy: It is the policy of this Community not to allow residents to remain at the Community and exercise their options in and under the Act. It is also the policy of this Community to prohibit other health care providers, its employees, or independent contractors from participating in or under the Act at the Community. Procedure: Upon awareness of a resident’s intent to exercise their right to request a medication for the purpose of ending life, the Community will proceed as follows. 1. Under no circumstances will the owner, operator, or any employee or agent of

the Community serve as a witness to any written request by a resident at the Community for aid-in-dying medication that the resident may self-administer to end his or her life under the Act.


2. Under no circumstances will the owner, operator, or any employee or agent of the Community designate a witness on behalf of or for a Community resident to any written request by a resident for aid-in-dying medication that the resident may self-administer to end his or her life under the Act.

3. Except as discussed in this Policy, Community employees are not allowed to

assist the resident in the dying process or engage in any other action authorized under the Act at the Community.

4. The Community will conduct an immediate service plan review with the

resident and designated representative or family member to discuss the following:

a. Encouragement to involve the assistance of a hospice agency;

b. Limitations of the Community’s involvement in all aspects of the death

with dignity process as set forth in the Act;

c. Review of the resident’s Advance Directive, CPR status and POLST form for any changes to determine if it is reflective of the resident’s wishes to exercise their options under the Act;

d. Where the dying process will be occurring; and

e. Discuss this Policy.

5. If the resident has expressed intent to end his or her life in the Community,

the resident and/or his or her representative or family member will be informed that the resident’s needs cannot be met by the Community.

a. The resident and his/her representatives or family members will be

encouraged to initiate the dying process elsewhere; and

b. If the resident and his/her family members refuse to initiate the dying process elsewhere, the resident and/or his/her family member will be informed that transfer/discharge proceeding will be implemented.

6. If the resident transfers to another community, the Community will provide a

copy of the resident’s relevant medical records to the new community.

7. If the resident consumes aid-in-dying medication to end his or her life in violation of this Policy, Community employees and staff are not allowed to be present or assist during the dying process, other than to meet the Community’s legal obligations to provide comfort care. If any Community employee chooses not to provide comfort care during this period, the Community will allow the employee to recuse him or herself from providing


care and will identify another employee to provide comfort care. Further, the Community will follow current POLST or CPR Status orders. If none are available, Community employees are instructed to call 911 if a resident has consumed medication to aid-in-dying, and commence CPR per Community policy. If the resident requests assistance after ingesting the medication to bring about death, the Community will call 911 for assistance.

8. Health care providers are prohibited from participating in or under the Act at the Community, and are subject to sanctions set forth in the Act for failing to follow this Policy. Health care providers should contact the Community’s Administrator for further information.

-END-

Appendix I

Model Language Disclosing Policy In Admission and Residency Contract

The following “Sample Language for Admission Agreement Documents” was authored by Gabriela Sanchez, Shareholder at Lane Powell PC. Contact her via email at [email protected].

999999.0020/6569040.1

Sample Language for Admission Agreement Documents: Advance Directive, Right to Make Health Care Decisions, and Death with Dignity

The Facility will honor a Resident’s Advance Directive that complies with Oregon law and is consistent with the scope of care the Facility is able to provide under its license. If the Resident does not have an Advance Directive, the Facility will offer one to the Resident at admission, but the Resident is not required to use an Advance Directive. Do you have an Existing Advance Directive? Y or N If No, do you want to complete an Advance Directive? Y or N Unless found incapable of doing so, the Resident has the right to make his or her own health care decisions, including consenting to and refusing to accept medication, treatment, and care. The Resident has been provided a copy of “Your Right to Make Health Care Decisions in Oregon” which is included in the Resident Handbook. It is the Facility’s policy to look to the Resident to make health care decisions when reasonably possible. The Facility will honor the Resident’s decisions unless the Resident has been deemed incapacitated by a court of law or by the Resident’s physician. A Resident, even if deemed incapable, may revoke an Advance Directive if it involves the decision to withhold or withdraw life-sustaining procedures or artificially administered nutrition/hydration. This Facility does not (1) participate in the Oregon Death with Dignity Act; (2) allow residents to consume aid-in-dying medication at the Facility; or (3) allow other health care providers to assist residents participate in the Oregon Death with Dignity Act on its premises. Any resident wishing to participate in Oregon’s Death with Dignity Act is subject to transfer from the Facility for that purpose. For additional information on the Facility’s policy on Death with Dignity, please refer to the Facility’s Death with Dignity Act Policies and Procedures.

Appendix J

DSS Memo on California’s End of Life Option Act

INFORMATION ONLY- NO ACTION REQUIRED

ASSEMBLY BILL X2-15 (Eggman), Chapter 1, Statutes of 2015

This law becomes effective the 91 st day after adjournment of the second extraordinary session. The second extraordinary session is still ongoing.

Affects: State Department of Public Health

Subject: End of life

Summary: Assembly Bill (AB) X2-15 repeals Part 1.85 (commencing with section 442) and adds Part 1.85 (commencing with section 443) of Division 1 of the Health and Safety Code

OVERVIEW

This bill enacts the End of Life Option Act and authorizes a mentally competent adult, who has been determined by his or her attending physician to be suffering from a terminal disease, to make a request for a drug for the purpose of ending his or her own life. This bill establishes a procedure for making these requests. This bill requires specific information to be documented in the individual's medical record, including all oral and written requests for an aid-in-dying drug.

The bill makes participation by health care providers and employees voluntary and makes health care providers immune from liability for refusing to engage in activities authorized.

This bill also specifies that a person or entity that elects, for reasons of conscience, morality, or ethics, not to participate, is not required to take any action in support of an individual's decision. The bill also provides a person, except as provided, immunity from civil or criminal liability solely because the person was present when the qualified individual self-administered the drug, or the person assisted the qualified individual by preparing the aid-in-dying drug so long as the person did not assist with the ingestion of the drug.

The bill makes it a felony to knowingly alter or forge a request for drugs to end an individual's life without his or her authorization or to conceal or destroy a withdrawal or rescission of a request for a drug, if it is done with the intent or effect of causing the individual's death. The bill also makes it a felony to knowingly coerce or exert undue influence on an individual to request the aid-in-dying drug, destroy a withdrawal or rescission of the request, or to administer an aid-in-dying drug to an individual without their knowledge or consent.

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Participation by Licensees and Employees

Residential Care Facilities for the Elderly (RCFE) are not considered health care providers or health care facilities under California law. For purposes of this bill, RCFE licensees and employees of the licensees are considered to be entities and individuals, as described in Section 443.14(e)(1)- "Participation in activities authorized pursuant to this part shall be voluntary .... [A] person or entity that elects, for reasons of conscience, morality or ethics, not to engage in activities authorized by [this law] ... is not required to take any action in support of an individual's decision under this part."

"Participating in activities pursuant to this part" are described in Section 443.15(f), and, specific to the RCFE environment, include:

• Delivering the prescription for, dispensing, or delivering the dispensed aid-indying drug [Section 443.15(f)(2)(D)]

• Being present when the qualified individual takes the aid-in-dying drug prescribed [Section 443.15(f)(2)(E)]

Licensee may elect, for reasons of conscience, morality or ethics, not to have employees participate in activities pursuant to this act. Licensees may inform residents and prospective residents whether the licensee has elected not to participate in the activities related to the End of Life Option Act.

Resident's Rights

Individuals living in an RCFE and determined to be qualified to request the aid-in-dying drug ("qualified resident") retain the rights to obtain and self-administer the prescription, regardless if the licensee has determined that the entity and employees elect to not participate in activities pursuant to this act. The resident becomes solely responsible to obtain and prepare the medication for self-administration. The qualified resident may also store their medication even if the RCFE centrally stores medication (see Medication Storage below).

The decision of a qualified resident to exercise their rights under this law shall not be basis for an eviction.

Written Request Form

The End of Life Option Act requires an individual requesting a prescription for an aid-indying drug to submit two oral requests and a written request to his or her attending physician. The request shall be signed and dated, in the presence of two witnesses, by the individual seeking the aid-in-dying drug. The witnesses shall attest that to the best of their knowledge and belief that the individual is all of the following

56

• An individual who is personally known to them or has provided proof of identity. • An individual who voluntarily signed this request in their presence. • An individual who they believe to be of sound mind and not under duress, fraud,

or undue influen.ce. • Not an individual for whom either of them is the attending physician, consulting

physician, or mental health specialist.

The law states only one of the two witnesses at the time the written request is signed shall own, operate, or be employed at a health care facility where the person is a patient or resident (Section 443.3). As stated previously, RCFE licensees and employees are not considered to be health care facilities or health care providers under California law. Therefore, one or both witnesses of the written request form can be obtained from facility staff that voluntarily elects to sign.

Medication Storage

Qualified residents residing in RCFEs may elect to store the aid-in-dying drug themselves rather than relying upon the RCFE to store the medication. The aid-in-dying drug may be stored within the qualified resident's room or may be stored outside the facility with a friend or family member. Qualified residents will be counseled by the consulting physician on the importance of maintaining the aid-in-dying drug in a safe and secure location until the time of ingestion [Section 443.5(a)(5)].

RCFEs with a central medication storage policy cannot require a qualified resident to have their aid-in-dying medication centrally stored as long as the qualified resident has the medication in a safe and secure location.

The person or entity with custody or control of any unused aid-in-dying drugs after the death of the resident must ensure the appropriate disposal of the aid-in-dying medication. The person with custody or control of any unused aid-in-dying drugs or RCFE staff shall personally deliver the unused aid-in-dying medication for disposal by delivering it to the nearest qualified facility that properly disposes of controlled substances, or if none is available, shall dispose of it by lawful means in accordance with guidelines promulgated by the California State Board of Pharmacy or a federal Drug Enforcement Administration approved take-back program [Section 443.20].

Resident Disclosures

Section 443.5(5)(A-E) of the law requires physicians to counsel qualified residents on the importance of the following:

• Having another person present when he or she ingests the aid-in-dying drug. • Not ingesting the aid-in-dying drug in a public place. • Notifying the next of kin of his or her request for an aid-in-dying drug. • Participating in a hospice program.

57

• Maintaining the aid-in-dying drug in a safe and secure location until the time that the qualified individual will ingest it.

There are no requirements under this law for a qualified individual to disclose to anyone their intent to use the aid-in-dying drug (except for the medical professionals involved in qualifying the individual and dispensing the medication). Therefore, residents considering the use of the aid-in-dying drug or qualified to take the drug are not required to inform the licensee or facility staff of their intent to exercise their rights under this law.

However, qualified residents are encouraged to provide transparency with the licensee and direct care staff. With the transparency, the qualified resident, his or her family members or friends and the facility staff can provide an environment supportive of the qualified resident's decision.

Initial Participation in Other States

The number of qualified individuals in California that elect to use the end-of-life drug is unknown. In other states with similar laws, participation during the first years after passage of the law is low. As shown by the chart below, very few individuals selfadministered the medication while living in an assisted living environment.

..

deaths from aid-in-# d ying drug

deaths from aid-in ying drug in long term

# d c fo

are, assisted living or ster care facility

...

Deaths after the Passage of Death with Dignity Acts

Oregon Washington (effective 1998) (effective 2009)

-·--- ~~·-···· ..

Year1 Year2 Year1 Year 2 ...

16 27 36 51

3 2 0 2

-

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