On July 1, 2013, a new law comes into effect in Indiana that dramatically impacts an individual’s ability to provide greater certainty with respect to his or her end of life care planning and offers a new advance directive to individuals. Indiana recently enacted a law, Indiana Code Section 16-36-6, that establishes the use of a Physician Orders for Scope of Treatment (“POST”) form. The POST form is intended to document a patient’s treatment preferences into medical orders that health care providers can follow.
In order to complete a POST form, a qualifying person and his or her physician must discuss the patient’s goals and treatment options available to the patient based upon his or her health and complete the POST form based on the patient’s preferences determined during those discussions.
An individual is eligible to complete a POST form if the individual has: (1) an advanced chronic progressive illness; (2) an advanced chronic progressive frailty; (3) a condition caused by injury, disease or illness from which there could be no recovery and death will occur within a short period of time; or (4) a medical condition that, if the person were to suffer cardiac or pulmonary failure, resuscitation would be unsuccessful.
The POST form will include the following: (1) a medical order specifying whether CPR should be performed if a patient is in cardiac arrest; (2) a medical order concerning the level of medical intervention to be provided to the patient including for comfort measures; (3) a medical order that specifies whether antibiotics should be provided to the patient; and (4) a medical order that specifies whether artificially administered nutrition should be provided to the patient. The form should be signed by the physician and by the patient or by the patient’s appointed health care representative. A patient may revoke a POST form at any time.
It is anticipated that the Indiana State Department of Health will have a POST form available on its website on or shortly after July 1, 2013.
The POST form may only be signed by the patient’s treating physician, and it is recommended that it be on bright pink paper. The medical orders included in a POST form executed property are effective in all health care settings.
A patient who signs a POST form will not revoke existing financial powers of attorney, living will declarations or appointments of health care representatives, but it will revoke an appointment of health care representative if a new appointment is made on the POST form. The POST form contains an optional section where a patient can appoint a health care representative or replace an existing health care representative.
The new law contains provisions that describe instances where a health care provider is not required to provide medical treatment and comply with the patient’s POST form if the health care provider: (1) believes the POST form was not validly executed; (2) believes in good faith that the patient or another authorized person revoked the POST; (3) believes that the patient or representative has made a request for alternative treatment; (4) believes that it would be medically inappropriate to provide the intervention included in the patient’s POST form; or (5) has religious or moral beliefs that conflict with the POST form. The health care provider must transfer the patient to another health care provider if the health care provider is unable to refuse to honor the POST based on religious beliefs.
Health care providers who act in good faith and follow reasonable medical standards to carry out the POST form are not subject to criminal or civil liability and cannot be found to have committed an act of unprofesssional conduct.
It is unclear if the Indiana State Department of Health and the Centers for Medicare and Medicaid services will consider making POST forms available to residents a part of the requirements under F-155 to make advance directives available to residents. However, long-term care providers should consider including the POST form as an option when providing residents information on their advance directive rights.
Should you have any questions, please contact:
- Todd Selby at 317.977.1440 or tselby@wp.hallrender.com;
- Brian Jent at 317.977.1402 or bjent@wp.hallrender.com;
- David Bufford at 502.568.9368 or dbufford@wp.hallrender.com;
- Sean Fahey at 317.977.1472 or sfahey@wp.hallrender.com; or
- Your regular Hall Render attorney.
