SB 74 - AS INTRODUCED
2021 SESSION
21-0857
08/06
SENATE BILL 74
AN ACT relative to advance directives for health care decisions.
SPONSORS: Sen. Sherman, Dist 24; Sen. Bradley, Dist 3; Sen. Rosenwald, Dist 13; Sen.
Whitley, Dist 15; Sen. Prentiss, Dist 5; Sen. Watters, Dist 4; Rep. Marsh, Carr. 8;
Rep. Woods, Merr. 23
COMMITTEE: Health and Human Services
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ANALYSIS
This bill:
I. Defines "attending practitioner" and "POLST."
II. Redefines "near death" as "actively dying."
III. Further defines the role of a surrogate.
IV. Repeals the applicability of certain advanced directives.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
 SB 74 - AS INTRODUCED
21-0857
08/06
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
AN ACT relative to advance directives for health care decisions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 1 Advance Health Care Directives. Amend RSA 137-J:1-3 to read as follows:
2 137-J:1 Purpose and Policy
3 I. The state of New Hampshire recognizes that [a person has] individual persons have
4 the [a] right, founded in the autonomy and sanctity of [the] a person, to control the decisions
5 relating to the rendering of [his or her] their own medical care. In order that the rights of persons
6 may be respected even after such persons lack the capacity to make health care decisions for
7 themselves, and to encourage communication between patients and their attending [physicians, PAs,
8 or APRNs] practitioners, the general court declares that the laws of this state shall recognize the
9 right of a competent person to make a written directive:
10 (a) Delegating to an agent the authority to make health care decisions on the person's
11 behalf, in the event such person is unable to make those decisions [for himself or herself]
12 independently, either due to permanent or temporary lack of capacity to make health care
13 decisions;
14 (b) Stating the person’s wishes about end of life care and instructing [Instructing]
15 his or her attending physician, PA, or APRN to provide, withhold, or withdraw life-sustaining
16 treatment, in the event such person is near death or is permanently unconscious.
17 II. All persons have a right to make health care decisions and to refuse health care
18 treatments, including the right to refuse cardiopulmonary resuscitation. It is the purpose of the
19 "Do Not Resuscitate" provisions of this chapter to ensure that the right of a person to self-
20 determination relating to cardiopulmonary resuscitation is protected, and to give direction to
21 emergency services personnel and other health care providers in regard to the performance of
22 cardiopulmonary resuscitation.
23 III. While all persons have a right to make a written directive, not all take advantage of that
24 right, and it is the purpose of the surrogacy provisions of this chapter to ensure that health care
25 decisions can be made in a timely manner by a person's next of kin or loved one without involving
26 court action. This chapter specifies a process to establish a surrogate decision-maker when there is
27 no valid [advance directive] durable power of attorney for health care or a guardian, as defined
28 in RSA 464-A, to make health care decisions.
29 IV. While it is a time-honored tradition in this state to allow persons to execute a
30 living will document that sets forth their basic values about end of life treatment, the state
31 recognizes that it is optimal for a person to have an agent under a durable power of
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1 attorney for healthcare document or a surrogate decision-maker who can make decisions
2 in real time and under then-existing conditions regarding health care decisions that best
3 reflect the person’s basic values; therefore, this chapter specifies that the directives of a
4 person’s living will shall be superseded by the agent or surrogate provided that the agent
5 or surrogate takes into full account all of the basic values of the person as articulated
6 orally and/or in writing by the person, including in the living will. In the event that no
7 agent or surrogate has been appointed, the basic values articulated in the living will shall
8 prevail.
9 137-J:2 Definitions. In this chapter:
10 I. “Actively dying” means an incurable condition caused by injury, disease, or
11 illness which is such that death is imminent and the application of life-sustaining
12 treatment would, to a reasonable degree of medical certainty only postpone the moment of
13 death, as determined by 2 physicians, or a physician and another medical practitioner who
14 is not under the supervision of the certifying physician.
15 [I.] II. "Advance directive" means a directive allowing a person to give directions about
16 future medical care or to designate another person to make medical decisions if [he or she] the
17 principal should lose the capacity to make health care decisions. The term "advance directives"
18 shall include living wills and durable powers of attorney for health care.
19 [II.] III. "Advanced practice registered nurse" or " APRN" means a registered nurse who is
20 licensed in good standing in the state of New Hampshire as having specialized clinical qualifications.
21 [III.] IV. "Agent" means an adult to whom authority to make health care decisions is
22 delegated under an advance directive.
23 [IV.] V. "Attending [physician, PA, or APRN] practitioner" means the physician, physician
24 assistant, or advanced practice registered nurse, selected by or assigned to a patient, who has
25 primary responsibility for the treatment and care of the patient. If more than one physician,
26 physician assistant, or advanced practice registered nurse shares that responsibility, any one of
27 those physicians, physician assistants, or advanced practice registered nurses may act as the
28 attending [physician, PA, or APRN] practitioner under the provisions of this chapter.
29 [V.] VI. "Capacity to make health care decisions" means the ability to understand and
30 appreciate generally the nature and consequences of a health care decision, including the significant
31 benefits and harms of and reasonable alternatives to any proposed health care. The fact that a
32 person has been diagnosed with mental illness, brain injury, or intellectual disability shall not mean
33 that the person necessarily lacks the capacity to make health care decisions.
34 [VI.] VII. "Cardiopulmonary resuscitation" means those measures used to restore or support
35 cardiac or respiratory function in the event of a cardiac or respiratory arrest.
36 [VI-a.] VIII. "Close friend" means any person [21] 18 years of age or older who presents an
37 affidavit to the attending physician stating that [he or she] the individual is a close friend of the
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1 patient, is willing and able to become involved in the patient's health care, and has maintained such
2 regular contact with the patient as to be familiar with the patient's activities, health, and religious
3 and moral beliefs. The affidavit shall also state facts and circumstances that demonstrate such
4 familiarity with the patient.
5 [VII.] IX. "Do not resuscitate identification" means a standardized identification necklace,
6 bracelet, card, pink portable Do Not Resuscitate Order, POLST, or other written medical order
7 that signifies that a "Do Not Resuscitate Order" has been issued for the principal.
8 [VIII.] X. "Do not resuscitate order" or "DNR order" (also known as "Do not attempt
9 resuscitation order" or "DNAR order") means an order that, in the event of an actual or imminent
10 cardiac or respiratory arrest, chest compression and [ventricular] defibrillation will not be
11 performed, the patient will not be intubated or manually ventilated, and there will be no
12 administration of resuscitation drugs.
13 [IX.] XI. "Durable power of attorney for health care" means a document delegating to an
14 agent the authority to make health care decisions executed in accordance with the provisions of this
15 chapter. It shall not mean forms routinely required by health and residential care providers for
16 admissions and consent to treatment.
17 [X.] XII. "Emergency services personnel" means paid or volunteer firefighters, law-
18 enforcement officers, emergency medical technicians, paramedics or other emergency services
19 personnel, providers, or entities acting within the usual course of their professions.
20 [XI.] XIII. "Health care decision" means informed consent, refusal to give informed consent,
21 or withdrawal of informed consent to any type of health care, treatment, admission to a health care
22 facility, any service or procedure to maintain, diagnose, or treat an individual's physical or mental
23 condition except as prohibited in this chapter or otherwise by law.
24 [XII.] XIV. "Health care provider" means [an individual or] a facility licensed, certified, or
25 otherwise authorized or permitted by law to administer health care, for profit or otherwise, in the
26 ordinary course of business or professional practice.
27 [XIII.] XV. "Life-sustaining treatment" means any medical procedures or interventions
28 which utilize mechanical or other medically administered means to sustain, restore, or supplant a
29 vital function [which, in the written judgment of the attending physician, PA, or APRN, would serve
30 only to artificially postpone the moment of death, and where the person is near death or is
31 permanently unconscious]. "Life-sustaining treatment" includes, but is not limited to, the following:
32 medically administered nutrition and hydration, mechanical respiration, kidney dialysis, or the use
33 of other external mechanical or technological devices. Life sustaining treatment may include drugs
34 to maintain blood pressure, blood transfusions, and antibiotics. "Life-sustaining treatment" shall
35 not include the administration of medication, natural ingestion of food or fluids by eating and
36 drinking, or the performance of any medical procedure deemed necessary to provide comfort or to
37 alleviate pain.
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1 [XIV.] XVI. "Living will" means a directive which, when duly executed, contains the express
2 direction that no life-sustaining treatment be given when the person executing said directive has
3 been diagnosed and certified in writing by the attending [physician, PA, or APRN] practitioner to
4 [be near death or permanently unconscious, without hope of recovery from such condition and is
5 unable to actively participate in the decision-making process.] fulfill the following sets of
6 criteria:
7 (a) The person has permanently lost decision-making capacity; and
8 (b) The person is suffering from a condition that will lead to death; and
9 (c) The burdens, risks, or complications of treatment are excessive as defined by
10 that person; or
11 (d) The person has permanently lost decision-making capacity, and
12 (e) The person is near death or permanently unconscious, without hope of
13 recovery from such condition.
14 [XV.] XVII. "Medically administered nutrition and hydration" means invasive procedures
15 such as, but not limited to the following: Nasogastric tubes; gastrostomy tubes; intravenous feeding
16 or hydration; and hyperalimentation. It shall not include the natural ingestion of food or fluids by
17 eating and drinking.
18 [XVI. "Near death" means an incurable condition caused by injury, disease, or illness which
19 is such that death is imminent and the application of life-sustaining treatment would, to a
20 reasonable degree of medical certainty, as determined by 2 physicians, or a physician and a PA, or a
21 physician and an APRN, only postpone the moment of death.]
22 [XVII.] XVIII. "Permanently unconscious" means a lasting condition, indefinitely without
23 improvement, in which thought, awareness of self and environment, and other indicators of
24 consciousness are absent as determined by an appropriate neurological assessment by a physician in
25 consultation with the attending physician or an appropriate neurological assessment by a physician
26 in consultation with an APRN or PA.
27 [XVIII.] XIX. "Physician" means a medical doctor licensed in good standing to practice in the
28 state of New Hampshire pursuant to RSA 329.
29 [XVIII-a.] XX. "Physician assistant" or "PA" means a physician assistant licensed in good
30 standing to practice in the state of New Hampshire pursuant to RSA 328-D.
31 XXI. “POLST” means a form that contains a set of medical orders designed for use
32 with patients with serious illness or frailty. This order set may contain DNR orders, and,
33 although it may be completed in any state under similar title, the DNR and all other orders
34 conform to New Hampshire law.
35 [XIX.] XXII. "Principal" means a person 18 years of age or older who has executed an
36 advance directive pursuant to the provisions of this chapter.
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1 [XX.] XXIII. "Qualified patient" means [a] any patient who [has executed an advance
2 directive in accordance with this chapter and who] has been certified in writing by the attending
3 [physician, PA, or APRN] practitioner to lack the capacity to make health care decisions.
4 [XXI.] XXIV. "Reasonable degree of medical certainty" means a medical judgment that is
5 made by a [physician, PA, or APRN] practitioner who is knowledgeable about the case and the
6 treatment possibilities with respect to the medical conditions involved.
7 [XXII.] XXV. "Residential care provider" means a "facility" as defined in RSA 161-F:11, IV, a
8 "nursing home" as defined in RSA 151-A:1, IV, or any individual or facility licensed, certified, or
9 otherwise authorized or permitted by law to operate, for profit or otherwise, a residential care
10 facility for adults, including but not limited to those operating pursuant to RSA 420-D.
11 [XXII-a.] XXVI. "Surrogate decision-maker" or "surrogate" means an adult individual who
12 has health care decision-making capacity, is available upon reasonable inquiry, is willing to make
13 health care decisions on behalf of a patient who lacks health care decision-making capacity, and is
14 identified by the attending [physician, PA, or APRN] practitioner in accordance with the provisions
15 of this chapter as the person who is to make those decisions in accordance with the provisions of this
16 chapter.
17 [XXIII.] XXVII. "Witness" means a competent person 18 years or older who is present when
18 the principal signs an advance directive.
19 137-J:3 Freedom From Influence; Notice Required.
20 I. No health care provider or residential care provider, and no health care service plan,
21 insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital
22 service plan shall charge a person a different rate because of the existence or non-existence of an
23 advance directive, [or] do not resuscitate order, or POLST, or require any person to execute an
24 advance directive or require the issuance of a do not resuscitate order as a condition of admission to
25 a hospital, nursing home, or residential care home, or as a condition of being insured for, or
26 receiving, health or residential care services. Health or residential care services shall not be refused
27 because a person is known to have executed an advance directive or have a do not resuscitate order.
28 II. The execution of an advance directive pursuant to this chapter shall not affect in any
29 manner the sale, procurement, or issuance of any policy of life insurance, nor shall it be deemed to
30 modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally
31 impaired, modified or invalidated in any manner by the withholding or withdrawal of life-sustaining
32 treatment from an insured person notwithstanding any term of the policy to the contrary.
33 [III. Any health care provider or residential care provider which does not recognize DNR's or
34 living wills shall post at every place of admission, a notice which shall be a minimum size of 8 1/2' x
35 11' stating the following in legible print: "This hospital/facility does not honor Do Not Resuscitate
36 (DNR) or Living Will documen