WSR 09-02-068

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed January 6, 2009, 11:06 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-23-089.

Title of Rule and Other Identifying Information: Chapter 246-978 WAC, Death with Dignity Act requirements, creating a new chapter to implement the Washington Death with Dignity Act, Initiative Measure No. 1000.

Hearing Location(s): Department of Health, Point Plaza East, Room 152/153, 310 Israel Road S.E., Tumwater, WA 98501, on February 10, 2009, at 9:00 a.m.

Date of Intended Adoption: February 11, 2009.

Submit Written Comments to: Carol Wozniak, P.O. Box 47814, Olympia, WA 98504-7814, web site http://www3.doh.wa.gov/policyreview/, fax (360) 753-4135, by February 10, 2009.

Assistance for Persons with Disabilities: Contact Carol Wozniak by January 27, 2009, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules are necessary to carry out the department's responsibility to collect information regarding compliance with Initiative Measure No. 1000 and to define qualifications of witnesses designated by long-term care facilities. The proposed rules clarify definitions, reporting requirements for health care providers, confidentiality of the collected information, and qualifications of a witness for patients in long-term care facilities.

Reasons Supporting Proposal: Initiative Measure No. 1000 requires the department to adopt rules to facilitate the collection of information regarding compliance. Section 15 of this initiative requires the department to adopt rules to facilitate the collection of information regarding compliance with the initiative. Section 3 requires the department to specify in rule the qualifications of the witness designated by a long-term care facility, if the patient is a patient of such a facility.

Statutory Authority for Adoption: Initiative Measure No. 1000.

Statute Being Implemented: Initiative Measure No. 1000.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of Health, 101 Israel Road S.E., Tumwater, WA 98501, governmental.

Name of Agency Personnel Responsible for Drafting: Kara Wagner, 101 Israel Road S.E., Tumwater, WA 98501, (360) 236-4206; Implementation and Enforcement: Carol Wozniak, 101 Israel Road S.E., Tumwater, WA 98501, (360) 236-4369.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement was not prepared. The proposed rule would not impose more than minor costs on businesses in an industry.

A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328. RCW 34.05.328 (5)(b)(v) exempts rules the content of which is explicitly and specifically dictated by statute.

January 6, 2009

Mary C. Selecky

Secretary

OTS-2062.5

Chapter 246-978 WAC

DEATH WITH DIGNITY ACT REQUIREMENTS


NEW SECTION
WAC 246-978-001   Purpose and authority.   This chapter is adopted by the Washington state department of health to implement the provisions of Initiative Measure No. 1000, the Washington Death with Dignity Act.

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NEW SECTION
WAC 246-978-010   Definitions.   For the purpose of this chapter, the following definitions apply:

(1) "Act" means the "Washington Death with Dignity Act" or Initiative Measure No. 1000 as adopted by the voters on November 4, 2008.

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

(3) "Attending physician" means the physician, as defined in chapter 18.72 or 18.57 RCW, who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.

(4) "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.

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

(6) "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.

(7) "Department" means the department of health.

(8) "Dispensing record" means a copy of the Pharmacy Dispensing Record form, DOH 422-067.

(9) "Health care facility" means a facility licensed under chapter 70.41, 18.51, or 72.36 RCW.

(10) "Health care provider" means a person licensed, certified or otherwise authorized or permitted by the 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.

(11) "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.

(12) "Long-term care facility" means a facility licensed under chapter 18.51 or 72.36 RCW.

(13) "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.

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

(15) "Physician" means a doctor of medicine, as defined in chapter 18.71 RCW, or osteopathy, as defined in chapter 18.57 RCW, licensed to practice medicine in the state of Washington.

(16) "Qualified patient" means a competent adult who is a resident of Washington state and has satisfied the requirements of this act 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.

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

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

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NEW SECTION
WAC 246-978-020   Reporting.   (1) To comply with the act, within thirty calendar days of writing a prescription for medication to end the life of a qualified patient, the attending physician shall send the following completed, signed, and dated documentation by mail to the State Registrar, Center for Health Statistics, P.O. Box 47814, Olympia, WA 98504:

(a) The patient's completed written request for medication to end life, either using the Written Request for Medication to End My Life in a Humane and Dignified Manner form, DOH 422-063, or in substantially the same form as described in the act;

(b) Attending Physician's Compliance form, DOH 422-064;

(c) Consulting Physician's Compliance form, DOH 422-065; and

(d) Psychiatric/Psychological Consultant's Compliance form, DOH 422-066, if an evaluation was performed.

(2) Within thirty calendar days of a qualified patient's ingestion of lethal medication obtained pursuant to the act, or death from any other cause, whichever comes first, the attending physician shall complete the Attending Physician's After Death Reporting form, DOH 422-068.

(3) To comply with the act, within thirty calendar days of dispensing medication, the dispensing health care provider shall file a copy of the Pharmacy Dispensing Record form, DOH 422-067, with the State Registrar, Center for Health Statistics, P.O. Box 47814, Olympia, WA 98504. Information to be reported to the department shall include:

(a) Patient's name and date of birth;

(b) Patient's address;

(c) Prescribing physician's name and phone number;

(d) Dispensing health care provider's name, address and phone number;

(e) Medication dispensed and quantity;

(f) Date the prescription was written; and

(g) Date the medication was dispensed.

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NEW SECTION
WAC 246-978-030   Confidentiality -- Liability.   All information collected by the department under the act shall not be a public record and may not be available for inspection by the public under chapter 42.56 RCW. This information includes, but is not limited to, the identity of patients, health care providers, and health care facilities.

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NEW SECTION
WAC 246-978-040   Qualifications of witness in a long-term care facility.   If the patient is a patient in a long-term care facility at the time the written request is made, one of the witnesses must be designated by the long-term care facility. The witness designated by the long-term care facility shall be a person who is not:

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

(2) 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;

(3) An owner, operator, or employee of a long-term care facility where the qualified patient is receiving medical treatment or is a resident. This witness may be, but is not limited to, an ombudsman, chaplain, or social worker; or

(4) The patient's attending physician at the time the request is signed.

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Washington State Code Reviser's Office