Tuesday, December 05, 2006

Act 169 Summaries Available

Helpful information & summaries have been made available regarding Act 169 of 2006 (formerly known as Senate Bill 628) through the courtesy of Senator Stewart Greenleaf, with support from Counsel to the Senate Majority (Republicans), Gregg Warner, Esq., and the staff of the Joint State Government Commission, including its Executive Director, David E. Hostetter, Esq.

Separately, on November 30, 2006, the Pennsylvania Medical Society posted a summary on its website.

(For all my postings on this Blog about the former SB 628 of 2005, now enacted as Act 169 of 2006, click on the label "
" and read the postings since October 19, 2006, in reverse order, as I followed the legislation from the Senate, through the House, and to the Governor.)

Summaries by Senator Greenleaf and the Joint State Government Commission

On the website of Senator Greenleaf, is a Press Release issued after signing of SB 628 into law as Act 169 of 2006, found here, containing a brief summary of the new law:

The Governor also signed into law another bill prime sponsored by Sen. Greenleaf, Senate Bill 628, legislation improving Pennsylvania's health care decision making law. Senate Bill 628 provides a statutory means for competent adults to control their health care either directly through instructions written in advance (living wills) or indirectly through a health care agent (health care powers of attorney) or, when there is no advance directive, through a health care representative (usually a member of the patient's family). Senator Greenleaf indicated that "Senate Bill 628 is important legislation. It addresses end-of-life issues that all Pennsylvanians face. Physicians, their patients and the families of their patients must deal with these issues every day and this legislation will go a long way in helping them make difficult decisions."

The legislation includes new sample forms for living wills and health care powers of attorney and gives physicians and patients' family members guidance when patients have not executed an advance directive. According to Senator Greenleaf, "The new forms provide the individual with more background information about the purposes of advance directives such as living wills and health care powers of attorney, how and why they would be implemented, and flexibility in expressing specific wishes regarding life-sustaining medical procedures." "In addition," Senator Greenleaf continued, "the bill gives doctors and families guidance when no written instructions are left by patients who cannot communicate their wishes."

Senator Greenleaf said that "Senate Bill 628 reflects a consensus based on many hours of meetings, telephone conference calls, drafts and re-drafts. The result of this work is a comprehensive bill. With the enactment of Senate Bill 628, Pennsylvania's law will not only give people more information and tools to make decisions in advance about their health care but will also do a better job of protecting the disabled."

Some of the text in this Press Release was contained in Senator Greenleaf's letter, dated October 13, 2006, sent to his Senate colleagues urging passage of SB 628 in the Senate. That letter was posted on the listserv of the Philadelphia Bar Association's "Probate & Trust Law Section", by Dan Evans, who also moderates that Section's listserv.

I asked both Gregg Warner and David Hostetter if I could repost Senator Greenleaf's letter; and both consented. Following is the text of that letter, distributed in anticipation of a Senate vote, which occurred three days later, on October 16, 2006:
October 13, 2006


FROM: Stewart J. Greenleaf

SUBJECT: Senate Bill 628 (Advance Directives)

Senate Bill 628, Printer's No. 2117, is before the Senate for a final vote and because it is a complex bill with a long history, I am taking this opportunity to share with you this background and summary.

Senate Bill 628 amends the Probate, Estates and Fiduciaries Code, Title 20 of the Pennsylvania Consolidated Statutes, adding Chapter 54 to further provide a statutory means for competent adults to control their health care either directly through instructions written in advance (living wills) or indirectly through a health care agent (health care powers of attorney) or health care representative when there is no advance directive. A conforming amendment is made to the Crimes Code, Title 18 of the Pennsylvania Consolidated Statutes.

The legislation had its roots in the Joint State Government Commission Advisory Committee on Decedents' Estates Laws ' report entitled "A Health Care Decision-Making Proposal, A Prudent Investor Rule and Other Proposed Amendments" (March 1998), and updated in the commission's staff report entitled "Proposed Health Care Decision-Making Provisions under Chapter 54 of Title 20 of the Pennsylvania Consolidated Statutes" (February 2002). In addition to the advisory committee's recommendations, the legislation as introduced during past sessions was the result of numerous meetings with individuals representing the legal and medical professions, the religious community, and state government agencies.

During the 2003-2004 session, I introduced this legislation as Senate Bill 492.

The Senate and the House of Representatives both unanimously passed Senate Bill 492 only to have the Governor veto the legislation largely because of objections raised by the medical community. Following the Governor's veto of Senate Bill 492, the Governor's office proposed amendments to resolve their concerns. A working group was established to discuss those recommendations. In addition to legislative staff, the working group was comprised of individuals representing the Governor's Office, the medical community, the legal profession, the disability community, and the Pennsylvania Catholic Conference.

Senate Bill 628, Printer's No. 2117, reflects a consensus based on many hours of meetings, telephone conference calls, drafts and re-drafts.

The Joint State Government Commission staff organized the meetings and calls, and put the various ideas into legislative form.

The result of this work is a better bill. With the enactment of Senate Bill 628, Pennsylvania's law will not only give people more information and tools to make decisions in advance about their health care but will also do a better job of protecting the disabled.
The letter continued into some detail about the then-pending Senate Bill 628, with the following introduction: "Joint State Government Commission staff provided the following summary of Senate Bill 628's key provisions".

Following is the JSGC Staff's "Senate Bill 628 Summary".
1. Replaces Chapters 54 and 54A with a revised and restructured Chapter 54 to include living wills (Subchapter B), health care agents and representatives (Subchapter C) and out-of hospital nonresuscitation (Subchapter E).

2. Provides a comprehensive statutory framework for health care powers of attorney (Subchapter C) and creates an optional form (Subchapter D).

A. Permits a principal to allow a health care agent to make all health care decisions for the principal, including those concerning life-sustaining treatment (Section 5456).

B. Permits a principal to appoint multiple and successor health care agents (Section 5455).

C. Provides that a principal may countermand a health care decision made by the principal's health care agent (Section 5457).

D. Explains how a health care power of attorney may be amended (Section 5458).

E. Explains how to revoke a health care power of attorney and the effect of a revocation (Section 5459).

3. Uses the more common term, "living will," instead of the current statutory term, "declaration" (Section 5422) but forms with "declaration"
remain valid (Section 7 of bill).

4. Provides a model living will and health care power of attorney form based on the form promulgated about 12 years ago by the Allegheny County Bar Association and the Allegheny Medical Society (Section 5471).

5. Replaces the term "terminal condition" with the term "end stage medical condition" while keeping the substance of the definition the same and clarifying the definition of "end-stage medical condition" to ensure that an individual's wishes are followed and that the individual receives medical care if the individual would benefit from the treatment and it would not merely prolong the process of dying (Section 5422).

6. Prohibits a Commonwealth agency that licenses health care providers or regulates health care (most likely the Department of Health) from prescribing a mandatory form (Section 5433).

7. Allows an emancipated minor to execute a living will and a health care power of attorney, have a health care representative, and secure an out-of-hospital do-not-resuscitate order (Sections 5442(a)(4), 5452(a)(4), 5461(a)(1) and 5484).

8. Adds provisions authorizing health care representatives to make health care decisions when there is no health care agent (Section 5461).

9. Sets forth a statutory default to determine who may act as a health care representative in descending order of priority (Section 5461(d)).

10. Allows a principal to designate a health care representative (Section 5461(d)(1)).

11. Allows a principal to disqualify a health care representative (Section 5461(e)).

12. Provides that upon the petition of any member of a class of potential health care representatives, the court may disqualify for cause shown an individual otherwise eligible to serve (Section 5461(e)).

13. Gives the adult children of the principal who are not the children of the spouse the same priority to act as health care representatives as the spouse (Section 5461(d)(1)(i)).

14. With regard to a care-dependent person, allows a health care representative to only make decisions regarding treatment, care, goods or services that a caretaker is obligated to provide to that care-dependent person who has an end-stage medical condition or is permanently unconscious (Section 5461(b)).

15. Adds an affirmative defense to charges filed under 18 Pa.C.S. §2713 (neglect of care-dependent person) for a caretaker's, individual's or facility's lawful compliance with the direction of the care dependent person's health care representative as provided in Section 5461(b) (18 Pa.C.S. §2713(e)(5)).

16. Provides statutory guidance for health care decisions by a health care agent and a health care representative and assigns the Department of Health oversight responsibilities (Section 5456(c)).

17. In the absence of a written direction to the contrary, creates a presumption that the principal would not want nutrition and hydration withheld or withdrawn and provides how that presumption is overcome (Section 5456(c)).

18. In establishing whether the presumption has been overcome, distinguishes between clearly expressed wishes of the principal regarding nutrition and hydration and the absence of such clearly expressed wishes (Section 5456 (c)).

19. Permits a person who is permanently unconscious to secure an out-of-hospital-do-not-resuscitate order without requiring that person to have an operative living will (Section 5483).

20. Provides that a health care provider shall not be subject to criminal or civil liability, discipline for unprofessional conduct or administrative sanctions for refusing to comply with a direction or decision of an individual based on a good faith belief that compliance would be unethical or, to a reasonable degree of medical certainty, would result in a medical care having no medical basis in addressing any medical need or condition of the patient (Section 5431(a)).

21. Expressly provides that the chapter doesn't require a health care provider to maintain copies of medical records beyond the requirements otherwise imposed by applicable law and regulation (Section 5434).

22. Requires the Department of Health to establish a committee to assist it in determining the advisability of using a standardized form containing orders by physicians that detail the scope of medical treatment for patients' life sustaining wishes (Section 5488).
Summary & Commentaries by the Pennsylvania Medical Society

Separately, the Pennsylvania Medical Society posted, on November 30, 2006, a web page announcing Act 169 of 2006 , entitled "New Legislation a Major Step Forward for Advance Health Care Directives and Health Care Decision-Making for Incompetent Patients". It states that "Act 169 of 2006 provides greater clarity and protections for patients and physicians."

The Medical Society's website then offers a synopsis of key provisions of the new Act in an article entitled "Quick Facts on Act 169 (Advance Directives)". It addresses the following topics:
However, there is one incongruity in the material posted by the Medical Society. PMS states, "On November 30, 2006, Governor Rendell signed into law Act 169, which provides a comprehensive statutory framework governing advance health care directives and health care decision-making for incompetent patients." (Emphasis added.)

Yet I understood that the Act was signed by the Governor late in the afternoon on November 29, 2006, as I indicated in my posting made that evening, entitled "Gov. Rendell Signs SB 628 into Law!"

Furthermore, the Legislative History for Act 169, found here, confirms its signing by the Governor on November 29, 2006.

What difference does it make? Well . . . none, actually.

Whether signed on November 29th or 30th, it would still take effect on January 29, 2007.

So I will follow Albert Einstein's advice:

I don't know, I don't care, and it doesn't make any difference!
-- Albert Einstein (Physicist, 1879-1955), as reported by BrainyQuote.