Bill Summary – FastDemocracy

0649.01000
     Sixty-seventh
     Legislative Assembly                     HOUSE BILL NO. 1415
     of North Dakota
     Introduced by
       Representatives P. Anderson, Adams, Dobervich, Hager, Hanson, J. Nelson, Schneider
  A BILL for an Act to create and enact chapter 23-06.7 of the North Dakota Century Code,
  relating to end-of-life health care decisions; and to provide a penalty.
  BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
      SECTION 1. Chapter 23-06.7 of the North Dakota Century Code is created and enacted as
  follows:
      23-06.7-01. Definitions.
      In this chapter, unless the context or subject matter otherwise requires:
      1.     "Adult" means an individual eighteen 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, in the opinion of a court or the patient's attending physician or
            consulting physician, psychiatrist, or psychologist, a patient has the ability to make and
            communicate a health care decision to a health care provider, including
            communication through an individual familiar with the patient's manner of
            communicating if the individual is available.
     4.     "Consulting physician" means a physician qualified by specialty or experience to make
            a professional diagnosis and prognosis regarding the patient's disease.
     5.     "Counseling" means a consultation between a state-licensed psychiatrist or
            psychologist and a patient to determine whether the patient is capable and not
            suffering from a psychiatric or psychological disorder or depression causing impaired
            judgment.
     6.     "Department" means the state department of health.
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      7.   "Health care facility" means a hospital, long-term care facility, freestanding birthing
           center, ambulatory surgical center, outpatient renal dialysis facility, or an extended stay
           center.
      8.   "Health care provider" means:
           a.   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; or
           b.   A health care facility.
      9.   "Informed decision" means a decision by a qualified patient to request and obtain a
          prescription for medication to end the patient's life in a humane and dignified manner
          which is based on an appreciation of the relevant facts and after being informed by the
          attending physician of:
          a.   The patient's medical diagnosis;
          b.   The patient's prognosis;
          c.   Potential risks associated with taking the medication to be prescribed;
          d.   The probable result of taking the medication to be prescribed; and
          e.   Feasible alternatives, including comfort care, hospice care, and pain control.
    10.   "Medically confirmed" means the attending physician's medical opinion has been
          confirmed by a consulting physician who has examined the patient and the patient's
          relevant medical records.
    11.   "Patient" means an adult resident of the state under the care of a physician.
    12.   "Physician" means a doctor of medicine or osteopathy licensed to practice medicine or
          osteopathy by the North Dakota board of medicine.
    13.   "Qualified patient" means a patient determined to be capable and who has satisfied
          the requirements to obtain a prescription for medication under this chapter.
    14.   "Terminal disease" means a medically confirmed incurable and irreversible disease
          which, within reasonable medical judgment, will produce death within six months.
    23-06.7-02. Qualifications for written request for medication.
     1.   A patient who is capable and has been determined by the attending physician and
          consulting physician to have a terminal disease and who voluntarily expresses the
          wish to die, may make a written request to the attending physician for medication
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           prescribed under this chapter to end the patient's life in a humane and dignified
           manner in accordance with this chapter.
      2.   An individual does not qualify under this chapter solely because of the individual's age
           or disability.
      3.   An individual may demonstrate North Dakota residency by offering:
           a.    The individual's North Dakota driver's license;
           b.    Evidence the individual owns or leases property in the state; or
           c.    The filing of a North Dakota individual tax return for the most recent tax year.
     23-06.7-03. Requirements for written and oral requests - Right to rescind.
     1.   To request medication prescribed under this chapter, a patient shall:
          a.    Make an oral request to the attending physician;
          b.    Make a second oral request at least fifteen days after the patient's initial oral
                request; and
          c.    Submit a written request, signed and dated by the patient, to the attending
                physician at least forty-eight hours before medication may be prescribed or
                dispensed.
     2.   A valid written request for medication prescribed under this chapter must be in
          substantially the form described in section 23-06.7-16 and witnessed by at least two
          individuals who, in the presence of the patient, attest to the best of each individual's
          knowledge and belief, the patient is capable, acting voluntarily, and is not being
          coerced to sign the request.
          a.    One of the witnesses must be an individual who is not:
               (1)    A relative of the patient by blood, marriage, or adoption;
               (2)    At the time the request is signed, entitled to any portion of the estate of the
                      patient upon death under any will or by operation of law; or
               (3)    An owner, operator, or employee of a health care facility at which the patient
                      is receiving medical treatment or is a resident.
          b.    If the patient is a resident of a long-term care facility at the time the written
                request is made, one of the witnesses must be an individual designated by the
                facility. The health council may adopt rules establishing qualifications for the
                individual designated by the facility.
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           c.   The patient's attending physician at the time the request is signed may not be a
                witness.
      3.   A patient may rescind the patient's request for medication under this chapter at any
           time and in any manner without regard to the patient's mental state.
     23-06.7-04. Attending physician responsibilities.
      1.   Upon receiving a written request for medication prescribed under this chapter and
           before prescribing the medication, the attending physician shall:
           a.   Make the initial determination of whether the patient has a terminal disease, is
                capable, and has made the request voluntarily;
          b.   Request the patient demonstrate state residency pursuant to section 23-06.7-02;
          c.   Inform the patient of:
               (1)   The patient's medical diagnosis;
               (2)   The patient's prognosis;
               (3)   Potential risks associated with taking the medication to be prescribed;
               (4)   The probable result of taking the medication to be prescribed; and
               (5)   Feasible alternatives, including comfort care, hospice care, and pain control;
          d.   Refer the patient to a consulting physician for medical confirmation of the
               diagnosis and a determination the patient is capable and acting voluntarily;
          e.   Refer the patient for counseling, if appropriate, pursuant to section 23-06.7-06;
          f.   Recommend the patient notify next of kin of the patient's decision to request
               medication prescribed under this chapter;
          g.   Counsel the patient about the importance of having another individual present if
               the patient takes the medication prescribed under this chapter and of not taking
               the medication in a public place;
          h.   Inform the patient the patient has an opportunity to rescind the request at any
               time and in any manner, and offer the patient an opportunity to rescind if the
               patient makes a second oral request;
          i.   Verify immediately before writing the prescription for medication pursuant to this
               chapter, the patient is making an informed decision;
          j.   Verify the medical record documentation requirements of section 23-06.7-09 are
               fulfilled; and
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            k.   Ensure all appropriate steps are carried out in accordance with this chapter
                 before prescribing medication to enable a qualified patient to end the patient's life
                 in a humane and dignified manner.
      2.   Notwithstanding any other provision of law, the attending physician may sign the
           patient's death certificate.
      23-06.7-05. Consulting physician confirmation.
      Before the attending physician prescribes medication under this chapter, the consulting
  physician shall:
      1.   Examine the patient and the patient's relevant medical records and confirm, in writing,
          the consulting physician agrees with the attending physician's diagnosis that the
          patient is suffering from a terminal disease;
     2.   Verify in writing the patient is capable, is acting voluntarily, and has made an informed
          decision; and
     3.   Refer the patient to counseling, if appropriate, pursuant to section 23-06.7-06.
     23-06.7-06. Counseling referral.
     1.   If, in the opinion of the attending physician or the consulting physician, a patient
          requesting medication under this chapter may be suffering from a psychiatric or
          psychological disorder or depression causing impaired judgment, the physician shall
          refer the patient for counseling.
     2.   The attending physician may not prescribe medication under this chapter unless the
          individual performing the counseling determines the patient is not suffering from a
          psychiatric or psychological disorder or depression causing impaired judgment.
     23-06.7-07. Family notification.
     A patient who declines or is unable to notify the patient's next of kin may not have the
 patient's request for medication prescribed under this chapter denied for that reason.
     23-06.7-08. Prescribing and dispensing of medication.
     1.   An attending physician may not prescribe medication under this chapter unless:
          a.    The patient has satisfied the requirements of sections 23-06.7-02 and
                23-06.7-03;
          b.    The attending physician has satisfied the requirements of section 23-06.7-04;
                and
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           c.   The consulting physician has satisfied the requirements of section 23-06.7-05.
      2.   If an attending physician ensures the requirements in subsection 1 are met, the
           attending physician may:
           a.   Provide the medication directly to the patient, including ancillary medication
                intended to facilitate the desired effect to minimize the patient's discomfort; or
           b.   With the patient's written consent:
                (1)   Contact a pharmacist and inform the pharmacist of the prescription; and
                (2)   Deliver the written prescription to the pharmacist to dispense the medication
                      to the patient, the attending physician, or an expressly identified agent of
                     the patient.
     3.   Upon dispensing medication under this chapter, a pharmacist shall file a copy of the
          de-identified dispensing record with the department.
    23-06.7-09. Medical record documentation requirements.
    The patient's medical record must contain documentation of:
     1.   All oral and written requests made by the patient for medication prescribed under this
          chapter;
     2.   The attending physician's diagnosis, prognosis, and determination the patient is
          capable, acting voluntarily, and has made an informed decision;
     3.   The consulting physician's diagnosis, prognosis, and verification the patient is
          capable, acting voluntarily, and has made an informed decision;
     4.   A report of the outcome and determination made during counseling, if performed;
     5.   The attending physician's offer to the patient to rescind the patient's request at the
          time of the patient's second oral request pursuant to section 23-06.7-03; and
     6.   A note by the attending physician indicating all requirements of this chapter are met
          and the steps taken to carry out the request, including a notation of the medication
          prescribed.
    23-06.7-10. Reporting requirements.
     1.   The department shall:
          a.   Review annually the dispensing records received under this chapter; and
          b.   Generate and publish a de-identified annual statistical report of information
               collected under this chapter.
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      2.   Except as required by law, the information collected by the department under this
           chapter is confidential and not subject to the requirements of section 44-04-18.
      3.   The health council shall adopt rules to facilitate the collection of the dispensing records
           in accordance with applicable privacy laws.
      23-06.7-11. Effect on construction of wills, contracts, and statutes.
      1.   A provision in a contract, will, or other agreement, whether written or oral, is not valid if
           the provision would affect whether an individual may make or rescind a request for
           medication prescribed under this chapter.
      2.   An obligation owing under any existing contract may not be conditioned or affected by
          an individual making or rescinding a request for medication prescribed under this
          chapter.
     23-06.7-12. Insurance or annuity policies.
     1.   The sale, procurement, or issuance of any life, health, or accident insurance or annuity
          policy or the premium charged for any policy may not be conditioned upon or affected
          by the making or rescinding of an individual's request for medication prescribed under
          this chapter.
     2.   A qualified patient's act of taking medication prescribed under this chapter may not
          have an effect upon a life, health, or accident insurance or annuity policy.
     23-06.7-13. Construction.
     Any action taken in accordance with this chapter does not constitute an offense under
 chapters 12.1-16 or 12.1-17.
     23-06.7-14. Immunities - Basis for prohibiting health care provider from participation -
 Notification - Permissible sanctions.
     Except as provided in section 23-06.7-17:
     1.   A person who acts in good faith compliance with this chapter is not subject to civil or
          criminal liability or professional discipline for those acts. This immunity includes being
          present if a qualified patient takes medication prescribed under this chapter.
     2.   A professional board or association or a 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 acts done in good faith compliance with this chapter
          or for the refusal to participate under this chapter.
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      3.   A request by a patient 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.
      4.   A health care provider is not under any duty, whether by contract, statute, or any other
           legal requirement, to participate in the provision to a qualified patient of medication
           prescribed under this chapter. If a health care provider is unable or unwilling to carry
           out a patient's request under this chapter, and the patient transfers the patient's care
           to a new