S-1311.1

SUBSTITUTE SENATE BILL 5179

BySenate Health & Long Term Care (originally sponsored by Senators Pedersen, King, Cleveland, Dhingra, Frame, Hunt, Keiser, Kuderer, Liias, Lovelett, Lovick, Mullet, Nobles, Robinson, Saldaña, Stanford, Valdez, Van De Wege, Wellman, and C. Wilson)

AN ACT Relating to increasing access to the provisions of the Washington death with dignity act; amending RCW 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, 70.245.150, 70.245.180, 70.245.190, 70.245.220, and 70.41.520; adding a new section to chapter 70.245 RCW; and adding a new section to chapter 70.127 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 70.245.010 and 2009 c 1 s 1 are each amended to read as follows:

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

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

(2) "Attending ((physician))qualified medical provider" means the ((physician))qualified medical provider 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))qualified medical provider, consulting ((physician))qualified medical provider, 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))qualified medical provider" means a ((physician))qualified medical provider 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, independent clinical social worker, advanced social worker, mental health counselor, or psychiatric advanced registered nurse practitioner 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))qualified medical provider 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) "Intractable suffering" means pain or other physical symptoms related to a patient's terminal disease that cannot be reasonably managed by palliative care.

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

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

(11)))an attending qualified medical provider.

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

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

NEW SECTION.  Sec. 2. A new section is added to chapter 70.245 RCW to read as follows:

(1) Subject to the provisions in subsection (2) of this section, a qualified patient may select the attending or consulting qualified medical provider of the qualified patient's choosing.

(2)(a) If a qualified patient selects an attending qualified medical provider who is a licensed professional other than a physician, the qualified patient must select a physician to serve as the qualified patient's consulting qualified medical provider.

(b) A qualified patient may select a consulting qualified medical provider who is a licensed professional other than a physician, only if the qualified patient's attending qualified medical provider is a physician.

(c) The attending qualified medical provider and the consulting qualified medical provider selected by the qualified patient may not have a direct supervisory relationship with each other.

Sec. 3. RCW 70.245.020 and 2009 c 1 s 2 are each amended to read as follows:

(1) An adult patient who is competent, is a resident of Washington state, and has been determined by the attending ((physician and consulting physician))qualified medical provider 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 that the patient may self-administer to end ((his or her))the patient's 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.

Sec. 4. RCW 70.245.030 and 2009 c 1 s 3 are each amended to read as follows:

(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))or by law;

(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))qualified medical provider 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 health by rule.))

Sec. 5. RCW 70.245.040 and 2009 c 1 s 4 are each amended to read as follows:

(1) The attending ((physician))qualified medical provider shall:

(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))The patient's medical diagnosis;

(ii) ((His or her))The patient's 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

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

(d) Refer the patient to a consulting ((physician))qualified medical provider 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))relevant 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;

(j) 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))qualified medical provider 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, or electronically to the pharmacist, who will dispense the medications directly to either the patient, the attending ((physician))qualified medical provider, 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))another person as requested by the qualified patient.

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

Sec. 6. RCW 70.245.050 and 2009 c 1 s 5 are each amended to read as follows:

Before a patient is qualified under this chapter, a consulting ((physician))qualified medical provider shall examine the patient and his or her relevant medical records and confirm, in writing, the attending ((physician's))qualified medical provider'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.

Sec. 7. RCW 70.245.060 and 2009 c 1 s 6 are each amended to read as follows:

If, in the opinion of either the attending ((physician))qualified medical provider or the consulting ((physician))qualified medical provider, a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, ((either physician))the qualified medical provider 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.

Sec. 8. RCW 70.245.070 and 2009 c 1 s 7 are each amended to read as follows:

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))qualified medical provider shall verify that the qualified patient is making an informed decision.

Sec. 9. RCW 70.245.080 and 2009 c 1 s 8 are each amended to read as follows:

The attending ((physician))qualified medical provider 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.

Sec. 10. RCW 70.245.090 and 2009 c 1 s 9 are each amended to read as follows:

(1) 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))qualified medical provider at least ((fifteen))seven days after making the initial oral request.

(2) Notwithstanding subsection (1) of this section, if, at the time of the qualified patient's initial oral request in subsection (1) of this section, the attending qualified medical provider determines that the qualified patient (a) is not expected to survive for seven days, or (b) is experiencing intractable suffering, then the qualified patient may receive the prescription upon making the second oral request sooner than seven days. At the time the qualified patient makes his or her second oral request, the attending ((physician))qualified medical provider shall offer the qualified patient an opportunity to rescind the request.

Sec. 11. RCW 70.245.100 and 2009 c 1 s 10 are each amended to read as follows:

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))qualified medical provider offering the qualified patient an opportunity to rescind the request.

Sec. 12. RCW 70.245.110 and 2009 c 1 s 11 are each amended to read as follows:

(((1))) At least ((fifteen))seven 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)), unless the conditions in RCW 70.245.090(2) allow for a period of less than seven days.

Sec. 13. RCW 70.245.120 and 2009 c 1 s 12 are each amended to read as follows:

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))qualified medical provider'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))qualified medical provider'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))qualified medical provider'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

(7) A note by the attending ((physician))qualified medical provider 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.

Sec. 14. RCW 70.245.150 and 2009 c 1 s 15 are each amended to read as follows:

(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 transmitted electronically, mailed, or otherwise transmitted as allowed by department of health rule to the department no later than ((thirty))30 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))qualified medical provider after the death of the patient shall be transmitted electronically, mailed, or faxed no later than ((thirty))30 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.

(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.

Sec. 15. RCW 70.245.180 and 2009 c 1 s 18 are each amended to read as follows:

(1) Nothing in this chapter authorizes ((a physician))an attending qualified medical provider, consulting qualified medical provider, 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)))(12), and (((12)))(13), 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))qualified medical provider, consulting ((physician))qualified medical provider, psychiatrist or psychologist, or other health care provider participating under this chapter.

Sec. 16. RCW 70.245.190 and 2009 c 1 s 19 are each amended to read as follows:

(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))qualified medical provider 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. A health care provider may not, by contract or other form of agreement, prohibit another health care provider from participating under chapter 1, Laws of 2009 while acting outside the course and scope of the provider's capacity as an employee or independent contractor of the prohibiting health care provider and while at a location that is not on the prohibiting health care provider's premises and not on property that is owned by, leased by, or under the direct control of the prohibiting health care provider. 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))qualified medical provider 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 and while at a location that is not on the sanctioning health care provider's facility premises and is not on property that is owned by, leased by, or under the direct control of the sanctioning health care provider; or

(B) A patient from contracting with his or her attending ((physician))qualified medical provider and consulting ((physician))qualified medical provider to act outside the course and scope of the provider's capacity as an employee or independent contractor of the sanctioning health care provider and while at a location that is not on the sanctioning health care provider's facility premises and is not on property that is owned by, leased by, or under the direct control 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))qualified medical provider under RCW 70.245.040, the consulting ((physician))qualified medical provider 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) Charting a patient's first request, as referenced in RCW 70.245.020, to services as provided in chapter 1, Laws of 2009;

(D) Providing a patient, upon the request of the patient, with a referral to another ((physician))attending or consulting qualified medical provider; or

(((D)))(E) A patient contracting with his or her attending ((physician))qualified medical provider and consulting ((physician))qualified medical provider 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.

(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.

Sec. 17. RCW 70.245.220 and 2009 c 1 s 22 are each amended to read as follows:

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]))HUMANE AND DIGNIFIED MANNER

I, . . . . . . . . . . . . . . ., am an adult of sound mind.

I am suffering from  . . . . . . . . . . . . . . ., which my attending ((physician))qualified medical provider has determined is a terminal disease ((and which has been medically confirmed by a consulting physician))that will result in death within six months.

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))qualified medical provider 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))qualified medical provider 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:

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.))

Sec. 18. RCW 70.41.520 and 2019 c 399 s 4 are each amended to read as follows:

(1) ((By September 1, 2019, every))Every hospital must submit to the department its policies related to access to care regarding:

(a) Admission;

(b) End-of-life care and the death with dignity act, chapter 70.245 RCW;

(c) Nondiscrimination; and

(((c)))(d) Reproductive health care.

(2) The department shall post a copy of the policies received under subsection (1) of this section on its website.

(3) If a hospital makes changes to any of the policies listed under subsection (1) of this section, it must submit a copy of the changed policy to the department within thirty days after the hospital approves the changes.

(4) A hospital must post a copy of the policies provided to the department under subsection (1) of this section and the forms required under subsection (5) of this section to the hospital's own website in a location where the policies are readily accessible to the public without a required login or other restriction.

(5) ((By September 1, 2019, the))(a) The department shall, in consultation with stakeholders including a hospital association and patient advocacy groups, develop ((a))two simple and clear forms to be submitted by hospitals along with the policies required in subsection (1) of this section. ((The))One form must provide the public with specific information about which reproductive health care services are and are not generally available at each hospital. The other form must provide the public with specific information about which end-of-life services are and are not generally available at each hospital. Each form must include contact information for the hospital in case patients have specific questions about services available at the hospital.

NEW SECTION.  Sec. 19. A new section is added to chapter 70.127 RCW to read as follows:

(1) Every agency or facility providing hospice services as defined in RCW 70.127.010 shall submit to the department of health its policies related to access to care regarding end-of-life care and this chapter. The information shall include: (a) A section for the public with specific information about which end-of-life services are and are not generally available at each agency or facility; and (b) the contact information for the agency or facility in case patients have specific questions about services available at the hospice.

(2) If an agency or facility providing hospice services as defined in RCW 70.127.010 makes changes to any of the policies listed under subsection (1) of this section, it shall submit a copy of the changed policy to the department of health within 30 days after the agency or facility approves the changes.

(3) A copy of the policies provided to the department of health under subsection (1) of this section must be posted to the website of each agency or facility providing hospice services as defined in RCW 70.127.010 in a location where the policies are readily accessible to the public without a required login or other restriction.

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