1     
POLST ORDER AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jani Iwamoto

5     
House Sponsor: Raymond P. Ward

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions relating to POLST orders.
10     Highlighted Provisions:
11          This bill:
12          ▸     renames the life with dignity order as the POLST order;
13          ▸     applies the provisions of the Uniform Electronic Transactions Act to signatures that
14     are required on a POLST order; and
15          ▸     allows a verbal confirmation, under limited circumstances, to satisfy the
16     requirement for a signature on a POLST order.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          75-2a-103, as last amended by Laws of Utah 2009, Chapter 99
24          75-2a-106, as last amended by Laws of Utah 2009, Chapter 99
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 75-2a-103 is amended to read:
28          75-2a-103. Definitions.
29          As used in this chapter:

30          (1) "Adult" means a person who is:
31          (a) at least 18 years of age; or
32          (b) an emancipated minor.
33          (2) "Advance health care directive":
34          (a) includes:
35          (i) a designation of an agent to make health care decisions for an adult when the adult
36     cannot make or communicate health care decisions; or
37          (ii) an expression of preferences about health care decisions;
38          (b) may take one of the following forms:
39          (i) a written document, voluntarily executed by an adult in accordance with the
40     requirements of this chapter; or
41          (ii) a witnessed oral statement, made in accordance with the requirements of this
42     chapter; and
43          (c) does not include a [life with dignity] POLST order.
44          (3) "Agent" means a person designated in an advance health care directive to make
45     health care decisions for the declarant.
46          (4) "APRN" means a person who is:
47          (a) certified or licensed as an advance practice registered nurse under Subsection
48     58-31b-301(2)(d);
49          (b) an independent practitioner;
50          (c) acting under a consultation and referral plan with a physician; and
51          (d) acting within the scope of practice for that person, as provided by law, rule, and
52     specialized certification and training in that person's area of practice.
53          (5) "Best interest" means that the benefits to the person resulting from a treatment
54     outweigh the burdens to the person resulting from the treatment, taking into account:
55          (a) the effect of the treatment on the physical, emotional, and cognitive functions of the
56     person;
57          (b) the degree of physical pain or discomfort caused to the person by the treatment or

58     the withholding or withdrawal of treatment;
59          (c) the degree to which the person's medical condition, the treatment, or the
60     withholding or withdrawal of treatment, result in a severe and continuing impairment of the
61     dignity of the person by subjecting the person to humiliation and dependency;
62          (d) the effect of the treatment on the life expectancy of the person;
63          (e) the prognosis of the person for recovery with and without the treatment;
64          (f) the risks, side effects, and benefits of the treatment, or the withholding or
65     withdrawal of treatment; and
66          (g) the religious beliefs and basic values of the person receiving treatment, to the extent
67     these may assist the decision maker in determining the best interest.
68          (6) "Capacity to appoint an agent" means that the adult understands the consequences
69     of appointing a particular person as agent.
70          (7) "Declarant" means an adult who has completed and signed or directed the signing
71     of an advance health care directive.
72          (8) "Default surrogate" means the adult who may make decisions for an individual
73     when either:
74          (a) an agent or guardian has not been appointed; or
75          (b) an agent is not able, available, or willing to make decisions for an adult.
76          (9) "Emergency medical services provider" means a person who is licensed,
77     designated, or certified under Title 26, Chapter 8a, Utah Emergency Medical Services System
78     Act.
79          (10) "Generally accepted health care standards":
80          (a) is defined only for the purpose of:
81          (i) this chapter and does not define the standard of care for any other purpose under
82     Utah law; and
83          (ii) enabling health care providers to interpret the statutory form set forth in Section
84     75-2a-117; and
85          (b) means the standard of care that justifies a provider in declining to provide life

86     sustaining care because the proposed life sustaining care:
87          (i) will not prevent or reduce the deterioration in the health or functional status of a
88     person;
89          (ii) will not prevent the impending death of a person; or
90          (iii) will impose more burden on the person than any expected benefit to the person.
91          (11) "Health care" means any care, treatment, service, or procedure to improve,
92     maintain, diagnose, or otherwise affect a person's physical or mental condition.
93          (12) "Health care decision":
94          (a) means a decision about an adult's health care made by, or on behalf of, an adult, that
95     is communicated to a health care provider;
96          (b) includes:
97          (i) selection and discharge of a health care provider and a health care facility;
98          (ii) approval or disapproval of diagnostic tests, procedures, programs of medication,
99     and orders not to resuscitate; and
100          (iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and
101     all other forms of health care; and
102          (c) does not include decisions about an adult's financial affairs or social interactions
103     other than as indirectly affected by the health care decision.
104          (13) "Health care decision making capacity" means an adult's ability to make an
105     informed decision about receiving or refusing health care, including:
106          (a) the ability to understand the nature, extent, or probable consequences of health
107     status and health care alternatives;
108          (b) the ability to make a rational evaluation of the burdens, risks, benefits, and
109     alternatives of accepting or rejecting health care; and
110          (c) the ability to communicate a decision.
111          (14) "Health care facility" means:
112          (a) a health care facility as defined in Title 26, Chapter 21, Health Care Facility
113     Licensing and Inspection Act; and

114          (b) private offices of physicians, dentists, and other health care providers licensed to
115     provide health care under Title 58, Occupations and Professions.
116          (15) "Health care provider" is as defined in Section 78B-3-403, except that it does not
117     include an emergency medical services provider.
118          (16) (a) "Life sustaining care" means any medical intervention, including procedures,
119     administration of medication, or use of a medical device, that maintains life by sustaining,
120     restoring, or supplanting a vital function.
121          (b) "Life sustaining care" does not include care provided for the purpose of keeping a
122     person comfortable.
123          [(17) "Life with dignity order" means an order, designated by the Department of Health
124     under Section 75-2a-106(5)(a), that gives direction to health care providers, health care
125     facilities, and emergency medical services providers regarding the specific health care
126     decisions of the person to whom the order relates.]
127          [(18)] (17) "Minor" means a person who:
128          (a) is under 18 years [of age] old; and
129          (b) is not an emancipated minor.
130          [(19)] (18) "Physician" means a physician and surgeon or osteopathic surgeon licensed
131     under Title 58, Chapter 67, Utah Medical Practice Act or Chapter 68, Utah Osteopathic
132     Medical Practice Act.
133          [(20)] (19) "Physician assistant" means a person licensed as a physician assistant under
134     Title 58, Chapter 70a, Utah Physician Assistant Act.
135          (20) "POLST order" means an order, on a form designated by the Department of Health
136     under Section 75-2a-106(5)(a), that gives direction to health care providers, health care
137     facilities, and emergency medical services providers regarding the specific health care
138     decisions of the person to whom the order relates.
139          (21) "Reasonably available" means:
140          (a) readily able to be contacted without undue effort; and
141          (b) willing and able to act in a timely manner considering the urgency of the

142     circumstances.
143          (22) "Substituted judgment" means the standard to be applied by a surrogate when
144     making a health care decision for an adult who previously had the capacity to make health care
145     decisions, which requires the surrogate to consider:
146          (a) specific preferences expressed by the adult:
147          (i) when the adult had the capacity to make health care decisions; and
148          (ii) at the time the decision is being made;
149          (b) the surrogate's understanding of the adult's health care preferences;
150          (c) the surrogate's understanding of what the adult would have wanted under the
151     circumstances; and
152          (d) to the extent that the preferences described in Subsections (22)(a) through (c) are
153     unknown, the best interest of the adult.
154          (23) "Surrogate" means a health care decision maker who is:
155          (a) an appointed agent;
156          (b) a default surrogate under the provisions of Section 75-2a-108; or
157          (c) a guardian.
158          Section 2. Section 75-2a-106 is amended to read:
159          75-2a-106. Emergency medical services -- POLST order.
160          (1) A [life with dignity] POLST order may be created by or on behalf of a person as
161     described in this section.
162          (2) A [life with dignity] POLST order shall, in consultation with the person authorized
163     to consent to the order pursuant to this section, be prepared by:
164          (a) the physician, APRN, or, subject to Subsection (11), physician assistant of the
165     person to whom the [life with dignity] POLST order relates; or
166          (b) a health care provider who:
167          (i) is acting under the supervision of a person described in Subsection (2)(a); and
168          (ii) is:
169          (A) a nurse, licensed under Title 58, Chapter 31b, Nurse Practice Act;

170          (B) a physician assistant, licensed under Title 58, Chapter 70a, Utah Physician
171     Assistant Act;
172          (C) a mental health professional, licensed under Title 58, Chapter 60, Mental Health
173     Professional Practice Act; or
174          (D) another health care provider, designated by rule as described in Subsection (10).
175          (3) A [life with dignity] POLST order shall be signed:
176          (a) personally, by the physician, APRN, or, subject to Subsection (11), physician
177     assistant of the person to whom the [life with dignity] POLST order relates; and
178          (b) (i) if the person to whom the [life with dignity] POLST order relates is an adult
179     with health care decision making capacity, by:
180          (A) the person; or
181          (B) an adult who is directed by the person to sign the [life with dignity] POLST order
182     on behalf of the person;
183          (ii) if the person to whom the [life with dignity] POLST order relates is an adult who
184     lacks health care decision making capacity, by:
185          (A) the surrogate with the highest priority under Section 75-2a-111;
186          (B) the majority of the class of surrogates with the highest priority under Section
187     75-2a-111; or
188          (C) a person directed to sign the POLST order by, and on behalf of, the persons
189     described in Subsection (3)(b)(ii)(A) or (B); or
190          (iii) if the person to whom the [life with dignity] POLST order relates is a minor, by a
191     parent or guardian of the minor.
192          (4) If a [life with dignity] POLST order relates to a minor and directs that life
193     sustaining treatment be withheld or withdrawn from the minor, the order shall include a
194     certification by two physicians that, in their clinical judgment, an order to withhold or
195     withdraw life sustaining treatment is in the best interest of the minor.
196          (5) A [life with dignity] POLST order:
197          (a) shall be in writing, on a form [approved] designated by the Department of Health;

198          (b) shall state the date on which the POLST order was made;
199          (c) may specify the level of life sustaining care to be provided to the person to whom
200     the order relates; and
201          (d) may direct that life sustaining care be withheld or withdrawn from the person to
202     whom the order relates.
203          (6) A health care provider or emergency medical service provider, licensed or certified
204     under Title 26, Chapter 8a, Utah Emergency Medical Services System Act, is immune from
205     civil or criminal liability, and is not subject to discipline for unprofessional conduct, for:
206          (a) complying with a [life with dignity] POLST order in good faith; or
207          (b) providing life sustaining treatment to a person when a [life with dignity] POLST
208     order directs that the life sustaining treatment be withheld or withdrawn.
209          (7) To the extent that the provisions of a [life with dignity] POLST order described in
210     this section conflict with the provisions of an advance health care directive made under Section
211     75-2a-107, the provisions of the [life with dignity] POLST order take precedence.
212          (8) An adult, or a parent or guardian of a minor, may revoke a [life with dignity]
213     POLST order by:
214          (a) orally informing emergency service personnel;
215          (b) writing "void" across the POLST order form;
216          (c) burning, tearing, or otherwise destroying or defacing:
217          (i) the POLST order form; or
218          (ii) a bracelet or other evidence of the [life with dignity] POLST order;
219          (d) asking another adult to take the action described in this Subsection (8) on the
220     person's behalf;
221          (e) signing or directing another adult to sign a written revocation on the person's
222     behalf;
223          (f) stating, in the presence of an adult witness, that the person wishes to revoke the
224     order; or
225          (g) completing a new [life with dignity] POLST order.

226          (9) (a) Except as provided in Subsection (9)(c), a surrogate for an adult who lacks
227     health care decision making capacity may only revoke a [life with dignity] POLST order if the
228     revocation is consistent with the substituted judgment standard.
229          (b) Except as provided in Subsection (9)(c), a surrogate who has authority under this
230     section to sign a [life with dignity] POLST order may revoke a [life with dignity] POLST
231     order, in accordance with Subsection (9)(a), by:
232          (i) signing a written revocation of the [life with dignity] POLST order; or
233          (ii) completing and signing a new [life with dignity] POLST order.
234          (c) A surrogate may not revoke a [life with dignity] POLST order during the period of
235     time beginning when an emergency service provider is contacted for assistance, and ending
236     when the emergency ends.
237          (10) (a) The Department of Health shall [adopt] make rules, in accordance with Title
238     63G, Chapter 3, Utah Administrative Rulemaking Act, to:
239          (i) create the forms and systems described in this section; and
240          (ii) develop uniform instructions for the form established in Section 75-2a-117.
241          (b) The Department of Health may [adopt] make rules, in accordance with Title 63G,
242     Chapter 3, Utah Administrative Rulemaking Act, to designate health care professionals, in
243     addition to those described in Subsection (2)(b)(ii), who may prepare a [life with dignity]
244     POLST order.
245          (c) The Department of Health may assist others with training of health care
246     professionals regarding this chapter.
247          (11) A physician assistant may not prepare or sign a [life with dignity] POLST order,
248     unless the physician assistant is permitted to prepare or sign the [life with dignity] POLST
249     order under the physician assistant's delegation of services agreement, as defined in Section
250     58-70a-102.
251          (12) (a) Notwithstanding any other provision of this section:
252          (i) the provisions of Title 46, Chapter 4, Uniform Electronic Transactions Act, apply to
253     any signature required on the POLST order; and

254          (ii) a verbal confirmation satisfies the requirement for a signature from an individual
255     under Subsection (3)(b)(ii) or (iii), if:
256          (A) requiring the individual described in Subsection (3)(b)(i)(B), (ii), or (iii) to sign the
257     POLST order in person or electronically would require significant difficulty or expense; and
258          (B) a licensed health care provider witnesses the verbal confirmation and signs the
259     POLST order attesting that the health care provider witnessed the verbal confirmation.
260          (b) The health care provider described in Subsection (12)(a)(ii)(B):
261          (i) may not be the same individual who signs the POLST order under Subsection
262     (3)(a); and
263          (ii) shall verify, in accordance with HIPAA as defined in Section 26-18-17, the identity
264     of the individual who is providing the verbal confirmation.