Senate Bill 2228er

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  1

  2         An act relating to end-of-life care; providing

  3         legislative findings; authorizing the Secretary

  4         of Health to develop and implement

  5         demonstration projects; requiring reports;

  6         requesting the Chancellor of the State

  7         University System to convene a working group;

  8         amending ss. 395.1041, 400.142, 400.4255,

  9         400.487, 400.6095, 400.621, F.S.; authorizing

10         personnel of hospital emergency services,

11         long-term care facilities, assisted living

12         facilities, home health agencies, hospices, and

13         adult family-care homes to withhold or withdraw

14         cardiopulmonary resuscitation pursuant to an

15         order not to resuscitate; providing for rules;

16         providing certain protection from prosecution

17         and liability; amending s. 401.45, F.S.;

18         revising authority of emergency medical

19         technicians and paramedics to withhold or

20         withdraw resuscitation or life-prolonging

21         techniques; directing the Department of Health

22         to develop a standardized do-not-resuscitate

23         identification system; authorizing a fee;

24         providing for rules; amending ss. 455.604,

25         458.319, 459.008, F.S.; providing that courses

26         on end-of-life care will fulfill certain

27         education requirements; amending s. 732.912,

28         F.S.; revising provisions relating to who may

29         make anatomical gifts; amending ss. 732.914,

30         732.917, F.S.; correcting cross-references;

31         amending s. 732.922, F.S.; conforming


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  1         provisions relating to duty of certain hospital

  2         administrators; amending s. 765.101, F.S.;

  3         revising definitions; defining the terms

  4         "persistent vegetative state" and "end-stage

  5         condition"; amending s. 765.102, F.S.; revising

  6         legislative intent relating to advance

  7         directives; amending s. 765.103, F.S.;

  8         providing for effect of existing advance

  9         directives; amending s. 765.104, F.S.;

10         providing for amendment of an advance directive

11         or designation of a surrogate; amending s.

12         765.107, F.S.; providing nonapplicability to

13         certain persons; amending s. 765.110, F.S.;

14         prohibiting certain actions by a health care

15         facility or provider with respect to a

16         patient's advance directive; increasing a

17         penalty; requiring that advance directives

18         become part of patients' medical records;

19         providing for rules; amending s. 765.204, F.S.;

20         revising provisions relating to evaluation of a

21         patient's capacity to make health care

22         decisions; amending s. 765.205, F.S.; revising

23         responsibilities of the surrogate; amending s.

24         765.301, F.S.; correcting a cross-reference;

25         amending s. 765.302, F.S.; revising procedure

26         for making a living will; amending s. 765.303,

27         F.S.; revising suggested form of a living will;

28         amending s. 765.304, F.S.; revising procedure

29         for implementing a living will; amending s.

30         765.305, F.S.; revising procedure in the

31         absence of a living will; amending s. 765.306,


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  1         F.S.; revising provisions relating to

  2         determination of the patient's condition;

  3         renumbering and amending s. 765.308, F.S.;

  4         providing for transfer of a patient under

  5         certain circumstances; renumbering and amending

  6         s. 765.310, F.S.; providing penalties for

  7         falsification, forgery, or willful concealment,

  8         cancellation, or destruction of an advance

  9         directive, or a revocation or amendment

10         thereof; amending s. 765.401, F.S.; revising

11         provisions relating to decisions by a proxy;

12         creating s. 765.404, F.S.; providing conditions

13         for withholding or withdrawing life-prolonging

14         procedures for certain persons in a persistent

15         vegetative state; directing the Department of

16         Elderly Affairs to convene a workgroup to

17         develop model advance directive forms;

18         providing effective dates.

19

20  Be It Enacted by the Legislature of the State of Florida:

21

22         Section 1.  End-of-life care.--

23         (1)(a)  The Legislature finds that Florida, as the

24  fourth most populous state, is highly diverse with regard to

25  race, ethnicity, urban and rural locales, religious practices,

26  and cultural traditions. Florida has the largest percentage of

27  elderly residents, the third largest incidence of AIDS, and

28  the fourth highest death rates from heart disease and chronic

29  obstructive pulmonary disease in the nation.

30         (b)  The Legislature finds that the Panel for the Study

31  of End-of-Life Care has recommended policies that will assure


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  1  the citizens of this state the highest quality of

  2  compassionate, competent, and adequate end-of-life care.

  3         (c)  The Legislature finds that all persons should have

  4  access to effective pain management and palliative care; that

  5  adequate management of pain and other distressing symptoms at

  6  the end-of-life should be available; and that all settings

  7  that care for seriously ill patients should address the

  8  emotional and spiritual needs of such patients. The

  9  Legislature finds that education of physicians and other

10  health care providers is necessary to assure that patients in

11  pain are assessed regularly and that their pain is treated

12  aggressively without fear of undue regulatory or legal action.

13         (d)  The Legislature finds that an individual's

14  experience of death and dying, and preferences about

15  end-of-life care, are rooted in ethnic and cultural values and

16  beliefs. The Legislature finds that social, health, and

17  education practitioners must be trained to understand work

18  within different cultural parameters.

19         (e)  The Legislature finds that to provide better pain

20  management, health care providers are to be encouraged to add

21  the assessment of pain as a "fifth vital sign." Further, the

22  Legislature intends that in accordance with standard and

23  accepted medical and ethical principles, the use of

24  pharmacological substances with the intent of alleviating or

25  eliminating pain and other discomfort is encouraged. Such use

26  should not be regarded as legally blameworthy, even if

27  appropriate pain control occurs during, and so precedes the

28  outcome of, the dying process.

29         (f)  The Legislature finds that the State Supreme Court

30  has declared that, based on the constitutional right to

31  privacy, competent adults can express their wishes to receive,


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  1  refuse, withhold, or withdraw any medical treatment and that

  2  right continues even when a person becomes incapacitated.

  3         (2)  The Secretary of Health is authorized to develop

  4  and implement up to two demonstration projects to evaluate

  5  strategies recommended by the Panel for the Study of

  6  End-of-Life Care. The Department of Health is authorized to

  7  accept for that purpose any special grant of money, services,

  8  property, gifts, or donations from any organization, medical

  9  school, or Federal Government agency, and to apply for grants

10  to support the demonstration projects. The secretary shall

11  report to the President of the Senate, the Speaker of the

12  House of Representatives, and the majority and minority

13  leaders and relevant substantive committees of both chambers,

14  on the demonstration projects, no later than January 30 of

15  each year.

16         (3)  The Chancellor of the State University System is

17  requested to convene a working group composed of one

18  representative from each of the Boards of Medicine,

19  Osteopathic Medicine, Nursing, Pharmacy, Nursing Home

20  Administrators, and Social Work, and the chairs of the four

21  medical schools' curriculum committees, to review available

22  curricula for end-of-life care and make recommendations

23  through the respective boards for content and materials to be

24  incorporated into the basic curriculum of each medical school,

25  school of social work, and allied health discipline.

26         Section 2.  Paragraph (l) is added to subsection (3) of

27  section 395.1041, Florida Statutes, 1998 Supplement, to read:

28         395.1041  Access to emergency services and care.--

29         (3)  EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF

30  FACILITY OR HEALTH CARE PERSONNEL.--

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  1         (l)  Hospital emergency services personnel may withhold

  2  or withdraw cardiopulmonary resuscitation if presented with an

  3  order not to resuscitate executed pursuant to s. 401.45.

  4  Facility staff and facilities shall not be subject to criminal

  5  prosecution or civil liability, nor be considered to have

  6  engaged in negligent or unprofessional conduct, for

  7  withholding or withdrawing cardiopulmonary resuscitation

  8  pursuant to such an order.

  9         Section 3.  Section 400.142, Florida Statutes, is

10  amended to read:

11         400.142  Emergency medication kits; orders not to

12  resuscitate.--

13         (1)  Other provisions of this chapter or of chapter

14  465, chapter 499, or chapter 893 to the contrary

15  notwithstanding, each nursing home operating pursuant to a

16  license issued by the agency may maintain an emergency

17  medication kit for the purpose of storing medicinal drugs to

18  be administered under emergency conditions to residents

19  residing in such facility.

20         (2)  The agency shall adopt such rules as it may deem

21  appropriate to the effective implementation of this act,

22  including, but not limited to, rules which:

23         (a)  Define the term "emergency medication kit."

24         (b)  Describe the medicinal drugs eligible to be placed

25  in emergency medication kits.

26         (c)  Establish requirements for the storing of

27  medicinal drugs in emergency medication kits and the

28  maintenance of records with respect thereto.

29         (d)  Establish requirements for the administration of

30  medicinal drugs to residents under emergency conditions from

31  emergency medication kits.


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  1         (3)  Facility staff may withhold or withdraw

  2  cardiopulmonary resuscitation if presented with an order not

  3  to resuscitate executed pursuant to s. 401.45. The agency

  4  shall adopt rules providing for the implementation of such

  5  orders. Facility staff and facilities shall not be subject to

  6  criminal prosecution or civil liability, nor be considered to

  7  have engaged in negligent or unprofessional conduct, for

  8  withholding or withdrawing cardiopulmonary resuscitation

  9  pursuant to such an order and rules adopted by the agency.

10         Section 4.  Section 400.4255, Florida Statutes, is

11  amended to read:

12         400.4255  Use of licensed personnel; emergency care.--

13         (1)(a)  Persons under contract to the facility,

14  facility staff, or volunteers, who are licensed according to

15  chapter 464, or those persons exempt under s. 464.022(1), and

16  others as defined by rule, may administer medications to

17  residents, take residents' vital signs, manage individual

18  weekly pill organizers for residents who self-administer

19  medication, give prepackaged enemas ordered by a physician,

20  observe residents, document observations on the appropriate

21  resident's record, report observations to the resident's

22  physician, and contract or allow residents or a resident's

23  representative, designee, surrogate, guardian, or attorney in

24  fact to contract with a third party, provided residents meet

25  the criteria for appropriate placement as defined in s.

26  400.426.  Nursing assistants certified pursuant to s. 400.211

27  may take residents' vital signs as directed by a licensed

28  nurse or physician.

29         (b)  All staff in facilities licensed under this part

30  shall exercise their professional responsibility to observe

31  residents, to document observations on the appropriate


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  1  resident's record, and to report the observations to the

  2  resident's physician.  However, the owner or administrator of

  3  the facility shall be responsible for determining that the

  4  resident receiving services is appropriate for residence in

  5  the facility.

  6         (c)  In an emergency situation, licensed personnel may

  7  carry out their professional duties pursuant to chapter 464

  8  until emergency medical personnel assume responsibility for

  9  care.

10         (2)  In facilities licensed to provide extended

11  congregate care, persons under contract to the facility,

12  facility staff, or volunteers, who are licensed according to

13  chapter 464, or those persons exempt under s. 464.022(1), or

14  those persons certified as nursing assistants pursuant to s.

15  400.211, may also perform all duties within the scope of their

16  license or certification, as approved by the facility

17  administrator and pursuant to this part.

18         (3)  Facility staff may withhold or withdraw

19  cardiopulmonary resuscitation if presented with an order not

20  to resuscitate executed pursuant to s. 401.45. The department

21  shall adopt rules providing for the implementation of such

22  orders. Facility staff and facilities shall not be subject to

23  criminal prosecution or civil liability, nor be considered to

24  have engaged in negligent or unprofessional conduct, for

25  withholding or withdrawing cardiopulmonary resuscitation

26  pursuant to such an order and rules adopted by the department.

27         Section 5.  Section 400.487, Florida Statutes, is

28  amended to read:

29         400.487  Patient assessment; establishment and review

30  of plan of care; provision of services; orders not to

31  resuscitate.--


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  1         (1)  The home health agency providing care and

  2  treatment must make an assessment of the patient's needs

  3  within 48 hours after the start of services.

  4         (2)  The attending physician for a patient receiving

  5  care or treatment provided by a licensed nurse or by a

  6  physical, occupational, or speech therapist must establish a

  7  plan of care for the patient on behalf of the home health

  8  agency that provides services to the patient.  The original

  9  plan of treatment must be signed by the physician and

10  reviewed, at least every 62 days or more frequently if the

11  patient's illness requires, by the physician in consultation

12  with home health agency personnel that provide services to the

13  patient.

14         (3)  Each patient has the right to be informed of and

15  to participate in the planning of his or her care.  Each

16  patient must be provided, upon request, a copy of the plan of

17  care established and maintained for that patient by the home

18  health agency.

19         (4)  Home health services that are provided to a

20  patient must be evaluated in the patient's home by a physician

21  licensed under chapter 458, chapter 459, chapter 460, or

22  chapter 461 or by a registered nurse licensed under chapter

23  464 as frequently as necessary to assure safe and adequate

24  care, but not less frequently than once every 62 days.

25         (5)  A home health agency must provide at least one

26  home health service to patients for whom it has agreed to

27  provide care.  Services provided by others under contractual

28  arrangements to a home health agency's patients must be

29  monitored and controlled by the home health agency.

30

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  1         (6)  The services provided by a home health agency,

  2  directly or under contract, must be supervised and coordinated

  3  in accordance with the plan of care.

  4         (7)  Home health agency personnel may withhold or

  5  withdraw cardiopulmonary resuscitation if presented with an

  6  order not to resuscitate executed pursuant to s. 401.45. The

  7  agency shall adopt rules providing for the implementation of

  8  such orders. Home health personnel and agencies shall not be

  9  subject to criminal prosecution or civil liability, nor be

10  considered to have engaged in negligent or unprofessional

11  conduct, for withholding or withdrawing cardiopulmonary

12  resuscitation pursuant to such an order and rules adopted by

13  the agency.

14         Section 6.  Present subsection (8) of section 400.6095,

15  Florida Statutes, is renumbered as subsection (9), and a new

16  subsection (8) is added to that section, to read:

17         400.6095  Patient admission; assessment; plan of care;

18  discharge; death.--

19         (8)  The hospice care team may withhold or withdraw

20  cardiopulmonary resuscitation if presented with an order not

21  to resuscitate executed pursuant to s. 401.45. The department

22  shall adopt rules providing for the implementation of such

23  orders. Hospice staff shall not be subject to criminal

24  prosecution or civil liability, nor be considered to have

25  engaged in negligent or unprofessional conduct, for

26  withholding or withdrawing cardiopulmonary resuscitation

27  pursuant to such an order and rules adopted by the department.

28         Section 7.  Present subsection (3) of section 400.621,

29  Florida Statutes, 1998 Supplement, is renumbered as subsection

30  (4), and a new subsection (3) is added to that section, to

31  read:


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  1         400.621  Rules and standards relating to adult

  2  family-care homes.--

  3         (3)  The department shall adopt rules providing for the

  4  implementation of orders not to resuscitate. The provider may

  5  withhold or withdraw cardiopulmonary resuscitation if

  6  presented with an order not to resuscitate executed pursuant

  7  to s. 401.45. The provider shall not be subject to criminal

  8  prosecution or civil liability, nor be considered to have

  9  engaged in negligent or unprofessional conduct, for

10  withholding or withdrawing cardiopulmonary resuscitation

11  pursuant to such an order and rules adopted by the department.

12         Section 8.  Subsection (3) of section 401.45, Florida

13  Statutes, is amended and subsection (5) is added to that

14  section, to read:

15         401.45  Denial of emergency treatment; civil

16  liability.--

17         (3)(a)  Resuscitation or life-prolonging techniques may

18  be withheld or withdrawn from a patient by an emergency

19  medical technician or paramedic if evidence of an order not to

20  resuscitate by the patient's physician is presented to the

21  emergency medical technician or paramedic in a manner provided

22  by rule of the department.

23         (b)  Any licensee, physician, medical director, or

24  emergency medical technician or paramedic who acts under the

25  direction of a medical director is not subject to criminal

26  prosecution or civil liability, and has not engaged in

27  negligent or unprofessional conduct, as a result of the

28  withholding or withdrawal of resuscitation or life-prolonging

29  techniques from a patient pursuant to this subsection and

30  rules adopted by the department.

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  1         (c)  The department, in consultation with the

  2  Department of Elderly Affairs and the Agency for Health Care

  3  Administration, shall develop a standardized

  4  do-not-resuscitate identification system with devices that

  5  signify, when carried or worn, that the possessor is a patient

  6  for whom a physician has issued an order not to administer

  7  cardiopulmonary resuscitation. The department may charge a

  8  reasonable fee to cover the cost of producing and distributing

  9  such identification devices. Use of such devices shall be

10  voluntary.

11         (5)  The department shall adopt and enforce all rules

12  necessary to implement this section.

13         Section 9.  Subsection (9) is added to section 455.604,

14  Florida Statutes, 1998 Supplement, to read:

15         455.604  Requirement for instruction for certain

16  licensees on human immunodeficiency virus and acquired immune

17  deficiency syndrome.--

18         (9)  In lieu of completing a course as required in

19  subsection (1), the licensee may complete a course in

20  end-of-life care and palliative health care, so long as the

21  licensee completed an approved AIDS/HIV course in the

22  immediately preceding biennium.

23         Section 10.  Subsection (4) is added to section

24  458.319, Florida Statutes, 1998 Supplement, to read:

25         458.319  Renewal of license.--

26         (4)  Notwithstanding the provisions of s. 455.604, a

27  physician may complete continuing education on end-of-life

28  care and palliative health care in lieu of continuing

29  education in AIDS/HIV, if that physician has completed the

30  AIDS/HIV continuing education in the immediately preceding

31  biennium.


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  1         Section 11.  Subsection (5) is added to section

  2  459.008, Florida Statutes, 1998 Supplement, to read:

  3         459.008  Renewal of licenses and certificates.--

  4         (5)  Notwithstanding the provisions of s. 455.604, an

  5  osteopathic physician may complete continuing education on

  6  end-of-life and palliative health care in lieu of continuing

  7  education in AIDS/HIV, if that physician has completed the

  8  AIDS/HIV continuing education in the immediately preceding

  9  biennium.

10         Section 12.  Section 732.912, Florida Statutes, 1998

11  Supplement, is amended to read:

12         732.912  Persons who may make an anatomical gift.--

13         (1)  Any person who may make a will may give all or

14  part of his or her body for any purpose specified in s.

15  732.910, the gift to take effect upon death.  An anatomical

16  gift made by an adult donor and not revoked by the donor as

17  provided in s. 732.916 is irrevocable and does not require the

18  consent or concurrence of any person after the donor's death.

19         (2)  If the decedent has not executed an agreement

20  concerning an anatomical gift, including signing an organ and

21  tissue donor card, expressing his or her wish to donate in a

22  living will or advance directive, or signifying his or her

23  intent to donate on his or her driver's license or in some

24  other written form has indicated his or her wish to make an

25  anatomical gift, a member of one of the classes of persons

26  listed below, in the order of priority stated and in the

27  absence of actual notice of contrary indications by the

28  decedent or actual notice of opposition by a member of the

29  same or a prior class, the surrogate designated by the

30  decedent pursuant to part II of chapter 765 may give all or

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  1  any part of the decedent's body for any purpose specified in

  2  s. 732.910.:

  3         (3)  If the decedent has not executed an agreement

  4  concerning an anatomical gift or designated a surrogate

  5  pursuant to part II of chapter 765 to make an anatomical gift

  6  pursuant to the conditions of subsection (2), a member of one

  7  of the classes of persons listed below, in the order of

  8  priority stated and in the absence of actual notice of

  9  contrary indications by the decedent or actual notice of

10  opposition by a member of the same or a prior class, may give

11  all or any part of the decedent's body for any purpose

12  specified in s. 732.910:

13         (a)  The spouse of the decedent;

14         (b)  An adult son or daughter of the decedent;

15         (c)  Either parent of the decedent;

16         (d)  An adult brother or sister of the decedent;

17         (e)  A grandparent of the decedent;

18         (f)  A guardian of the person of the decedent at the

19  time of his or her death; or

20         (g)  A representative ad litem who shall be appointed

21  by a court of competent jurisdiction forthwith upon a petition

22  heard ex parte filed by any person, which representative ad

23  litem shall ascertain that no person of higher priority exists

24  who objects to the gift of all or any part of the decedent's

25  body and that no evidence exists of the decedent's having made

26  a communication expressing a desire that his or her body or

27  body parts not be donated upon death;

28

29  but no gift shall be made by the spouse if any adult son or

30  daughter objects, and provided that those of higher priority,

31  if they are reasonably available, have been contacted and made


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  1  aware of the proposed gift, and further provided that a

  2  reasonable search is made to show that there would have been

  3  no objection on religious grounds by the decedent.

  4         (4)(3)  If the donee has actual notice of contrary

  5  indications by the decedent or, in the case of a spouse making

  6  the gift, an objection of an adult son or daughter or actual

  7  notice that a gift by a member of a class is opposed by a

  8  member of the same or a prior class, the donee shall not

  9  accept the gift.

10         (5)(4)  The person authorized by subsection (3) (2) may

11  make the gift after the decedent's death or immediately before

12  the decedent's death.

13         (6)(5)  A gift of all or part of a body authorizes any

14  examination necessary to assure medical acceptability of the

15  gift for the purposes intended.

16         (7)(6)  Once the gift has been made, the rights of the

17  donee are paramount to the rights of others, except as

18  provided by s. 732.917.

19         Section 13.  Subsection (5) of section 732.914, Florida

20  Statutes, 1998 Supplement, is amended to read:

21         732.914  Manner of executing anatomical gifts.--

22         (5)  Any gift by a member of a class designated in s.

23  732.912(3)(2) must be made by a document signed by that person

24  or made by that person's witnessed telephonic discussion,

25  telegraphic message, or other recorded message.

26         Section 14.  Subsection (3) of section 732.917, Florida

27  Statutes, is amended to read:

28         732.917  Rights and duties at death.--

29         (3)  The organ procurement organization, tissue bank,

30  or eye bank, or hospital medical professionals under the

31  direction thereof, may perform any and all tests to evaluate


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  1  the deceased as a potential donor and any invasive procedures

  2  on the deceased body in order to preserve the potential

  3  donor's organs.  These procedures do not include the surgical

  4  removal of an organ or penetrating any body cavity,

  5  specifically for the purpose of donation, until a properly

  6  executed donor card or document is located or, if a properly

  7  executed donor card or document cannot be located, a person

  8  specified in s. 732.912(3)(2) has been located, has been

  9  notified of the death, and has granted legal permission for

10  the donation.

11         Section 15.  Subsection (2) of section 732.922, Florida

12  Statutes, 1998 Supplement, is amended to read:

13         732.922  Duty of certain hospital administrators;

14  liability of hospital administrators, organ procurement

15  organizations, eye banks, and tissue banks.--

16         (2)  Where, based on accepted medical standards, a

17  hospital patient is a suitable candidate for organ or tissue

18  donation, the hospital administrator or the hospital

19  administrator's designee shall, at or near the time of death,

20  access the organ and tissue donor registry created by s.

21  732.915(4) to ascertain the existence of a donor card or

22  document executed by the decedent.  In the absence of a donor

23  card, organ donation sticker or organ donation imprint on a

24  driver's license, or other properly executed document, the

25  hospital administrator or designee shall request:

26         (a)  The patient's health care surrogate, as permitted

27  in s. 732.912(2); or

28         (b)  If the patient does not have a surrogate, or the

29  surrogate is not reasonably available, any of the persons

30  specified in s. 732.912(3), in the order and manner of

31  priority stated in s. 732.912(3),


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  1

  2  to consent to the gift of all or any part of the decedent's

  3  body for any purpose specified in this part. Except as

  4  provided in s. 732.912, in the absence of actual notice of

  5  opposition, consent need only be obtained from the person or

  6  persons in the highest priority class reasonably available.

  7         Section 16.  Section 765.101, Florida Statutes, is

  8  amended to read:

  9         765.101  Definitions.--As used in this chapter:

10         (1)  "Advance directive" means a witnessed written

11  document or oral statement in which instructions are given by

12  a principal or in which the principal's desires are expressed

13  concerning any aspect of the principal's health care, and

14  includes, but is not limited to, the designation of a health

15  care surrogate, a living will, or an anatomical gift made

16  pursuant to part X of chapter 732 orders not to resuscitate

17  issued pursuant to s. 401.45.

18         (2)  "Attending physician" means the primary physician

19  who has responsibility for the treatment and care of the

20  patient.

21         (3)  "Close personal friend" means any person 18 years

22  of age or older who has exhibited special care and concern for

23  the patient, and who presents an affidavit to the health care

24  facility or to the attending or treating physician stating

25  that he or she is a friend of the patient; is willing and able

26  to become involved in the patient's health care; and has

27  maintained such regular contact with the patient so as to be

28  familiar with the patient's activities, health, and religious

29  or moral beliefs.

30         (4)  "End-stage condition" means a condition that is

31  caused by injury, disease, or illness which has resulted in


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  1  severe and permanent deterioration, indicated by incapacity

  2  and complete physical dependency, and for which, to a

  3  reasonable degree of medical certainty, treatment of the

  4  irreversible condition would be medically ineffective.

  5         (5)(4)  "Health care decision" means:

  6         (a)  Informed consent, refusal of consent, or

  7  withdrawal of consent to any and all health care, including

  8  life-prolonging procedures.

  9         (b)  The decision to apply for private, public,

10  government, or veterans' benefits to defray the cost of health

11  care.

12         (c)  The right of access to all records of the

13  principal reasonably necessary for a health care surrogate to

14  make decisions involving health care and to apply for

15  benefits.

16         (d)  The decision to make an anatomical gift pursuant

17  to part X of chapter 732.

18         (6)(5)  "Health care facility" means a hospital,

19  nursing home, hospice, home health agency, or health

20  maintenance organization licensed in this state, or any

21  facility subject to part I of chapter 394.

22         (7)(6)  "Health care provider" or "provider" means any

23  person licensed, certified, or otherwise authorized by law to

24  administer health care in the ordinary course of business or

25  practice of a profession.

26         (8)(7)  "Incapacity" or "incompetent" means the patient

27  is physically or mentally unable to communicate a willful and

28  knowing health care decision. For the purposes of making an

29  anatomical gift, the term also includes a patient who is

30  deceased.

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  1         (9)(8)  "Informed consent" means consent voluntarily

  2  given by a person after a sufficient explanation and

  3  disclosure of the subject matter involved to enable that

  4  person to have a general understanding of the treatment or

  5  procedure and the medically acceptable alternatives, including

  6  the substantial risks and hazards inherent in the proposed

  7  treatment or alternative procedures, and to make a knowing

  8  health care decision without coercion or undue influence.

  9         (10)(9)  "Life-prolonging procedure" means any medical

10  procedure, treatment, or intervention, including artificially

11  provided sustenance and hydration, which sustains, restores,

12  or supplants a spontaneous vital function. which:

13         (a)  Utilizes mechanical or other artificial means to

14  sustain, restore, or supplant a spontaneous vital function;

15  and

16         (b)  When applied to a patient in a terminal condition,

17  serves only to prolong the process of dying.

18

19  The term "life-prolonging procedure" does not include the

20  administration of medication or performance of medical

21  procedure, when such medication or procedure is deemed

22  necessary to provide comfort care or to alleviate pain.

23         (11)(10)  "Living will" or "declaration" means:

24         (a)  A witnessed document in writing, voluntarily

25  executed by the principal in accordance with s. 765.302; or

26         (b)  A witnessed oral statement made by the principal

27  expressing the principal's instructions concerning

28  life-prolonging procedures.

29         (12)  "Persistent vegetative state" means a permanent

30  and irreversible condition of unconsciousness in which there

31  is:


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  1         (a)  The absence of voluntary action or cognitive

  2  behavior of any kind.

  3         (b)  An inability to communicate or interact

  4  purposefully with the environment.

  5         (13)(11)  "Physician" means a person licensed pursuant

  6  to chapter 458 or chapter 459.

  7         (14)(12)  "Principal" means a competent adult executing

  8  an advance directive and on whose behalf health care decisions

  9  are to be made.

10         (15)(13)  "Proxy" means a competent adult who has not

11  been expressly designated to make health care decisions for a

12  particular incapacitated individual, but who, nevertheless, is

13  authorized pursuant to s. 765.401 to make health care

14  decisions for such individual.

15         (16)(14)  "Surrogate" means any competent adult

16  expressly designated by a principal to make health care

17  decisions on behalf of the principal upon the principal's

18  incapacity.

19         (17)(15)  "Terminal condition" means:

20         (a)  a condition caused by injury, disease, or illness

21  from which there is no reasonable medical probability of

22  recovery and which, without treatment, can be expected to

23  cause death.; or

24         (b)  A persistent vegetative state characterized by a

25  permanent and irreversible condition of unconsciousness in

26  which there is:

27         1.  The absence of voluntary action or cognitive

28  behavior of any kind; and

29         2.  An inability to communicate or interact

30  purposefully with the environment.

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  1         (16)  "Treating physician" means the physician who has

  2  treated or is treating the patient for any condition directly

  3  related to the condition resulting in the patient's

  4  incapacity.

  5         Section 17.  Subsection (3) of section 765.102, Florida

  6  Statutes, is amended to read:

  7         765.102  Legislative findings and intent.--

  8         (3)  The Legislature recognizes further finds that for

  9  some the administration of life-prolonging medical procedures

10  may result in the artificial prolongation of life for a person

11  with a terminal condition may secure for him or her only a

12  precarious and burdensome existence, while providing nothing

13  medically necessary or beneficial to the patient. In order to

14  ensure that the rights and intentions of a person with such a

15  condition may be respected even after he or she is no longer

16  able to participate actively in decisions concerning himself

17  or herself, and to encourage communication among such patient,

18  his or her family, and his or her physician, the Legislature

19  declares that the laws of this state recognize the right of a

20  competent adult to make an advance directive instructing his

21  or her physician to provide, withhold, or withdraw

22  life-prolonging procedures, or to designate another to make

23  the treatment decision for him or her in the event that such

24  person should become incapacitated and unable to personally

25  direct his or her medical care be found to be incompetent and

26  suffering from a terminal condition.

27         Section 18.  Section 765.103, Florida Statutes, is

28  amended to read:

29         765.103  Existing advance directives.--Any advance

30  directive made prior to October 1, 1999, April 10, 1992, shall

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  1  be given effect as executed, as provided in this chapter

  2  provided such directive was legally effective when written.

  3         Section 19.  Section 765.104, Florida Statutes, is

  4  amended to read:

  5         765.104  Amendment or revocation.--

  6         (1)  An advance directive or designation of a surrogate

  7  may be amended or revoked at any time by a competent

  8  principal:

  9         (a)  By means of a signed, dated writing;

10         (b)  By means of the physical cancellation or

11  destruction of the advance directive by the principal or by

12  another in the principal's presence and at the principal's

13  direction;

14         (c)  By means of an oral expression of intent to amend

15  or revoke; or

16         (d)  By means of a subsequently executed advance

17  directive that is materially different from a previously

18  executed advance directive.

19         (2)  Unless otherwise provided in the advance directive

20  or in an order of dissolution or annulment of marriage, the

21  dissolution or annulment of marriage of the principal revokes

22  the designation of the principal's former spouse as a

23  surrogate.

24         (3)  Any such amendment or revocation will be effective

25  when it is communicated to the surrogate, health care

26  provider, or health care facility.  No civil or criminal

27  liability shall be imposed upon any person for a failure to

28  act upon an amendment or a revocation unless that person has

29  actual knowledge of such amendment or revocation.

30         Section 20.  Section 765.107, Florida Statutes, is

31  amended to read:


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  1         765.107  Construction.--

  2         (1)  This chapter shall not be construed to repeal by

  3  implication any provision of s. 766.103, the Florida Medical

  4  Consent Law.  For all purposes, the Florida Medical Consent

  5  Law shall be considered an alternative to provisions of this

  6  section.

  7         (2)  Procedures provided in this chapter permitting the

  8  withholding or withdrawal of life-prolonging procedures do not

  9  apply to a person who never had capacity to designate a health

10  care surrogate or execute a living will.

11         Section 21.  Section 765.110, Florida Statutes, is

12  amended to read:

13         765.110  Health care facilities and providers;

14  discipline.--

15         (1)  A health care facility, pursuant to Pub. L. No.

16  101-508, ss. 4206 and 4751, shall provide to each patient

17  written information concerning the individual's rights

18  concerning advance directives and the health care facility's

19  policies respecting the implementation of such rights, and

20  shall document in the patient's medical records whether or not

21  the individual has executed an advance directive.

22         (2)  A health care provider or health care facility may

23  not require a patient to execute an advance directive or to

24  execute a new advance directive using the facility's or

25  provider's forms. The patient's advance directives shall

26  travel with the patient as part of the patient's medical

27  record.

28         (3)(2)  A health care provider or health care facility

29  shall be subject to professional discipline and revocation of

30  license or certification, and a fine of not more than $1,000

31  $500 per incident, or both, if the health care provider or


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  1  health care facility, as a condition of treatment or

  2  admission, requires an individual to execute or waive an

  3  advance directive.

  4         (4)(3)  The Department of Elderly Affairs for hospices

  5  and, in consultation with the Department of Elderly Affairs,

  6  the Department of Health for health care providers, and

  7  Rehabilitative Services and the Agency for Health Care

  8  Administration for hospitals, nursing homes, home health

  9  agencies, and health maintenance organizations, and the

10  Department of Children and Family Services for facilities

11  subject to part I of chapter 394 shall adopt rules to

12  implement the provisions of the section.

13         Section 22.  Subsection (2) of section 765.204, Florida

14  Statutes, is amended to read:

15         765.204  Capacity of principal; procedure.--

16         (2)  If a principal's capacity to make health care

17  decisions for herself or himself or provide informed consent

18  is in question, the attending physician shall evaluate the

19  principal's capacity and, if the physician concludes that the

20  principal lacks capacity, enter that evaluation in the

21  principal's medical record. If the attending physician has a

22  question as to whether concludes that the principal lacks such

23  capacity, another physician shall also evaluate the

24  principal's capacity. If the second physician agrees that the

25  principal lacks the capacity to make health care decisions or

26  provide informed consent, the health care facility shall enter

27  both physician's evaluations in the principal's clinical

28  record and, if the principal has designated a health care

29  surrogate, shall notify such surrogate in writing that her or

30  his authority under the instrument has commenced.

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  1         Section 23.  Subsection (2) of section 765.205, Florida

  2  Statutes, is amended to read:

  3         765.205  Responsibility of the surrogate.--

  4         (2)  The surrogate may authorize the release of

  5  information and clinical records to appropriate persons to

  6  ensure the continuity of the principal's health care and may

  7  authorize the transfer and admission, discharge, or transfer

  8  of the principal to or from a health care facility or other

  9  facility or program licensed under chapter 400.

10         Section 24.  Section 765.301, Florida Statutes, is

11  amended to read:

12         765.301  Short title.--Sections 765.302-765.309

13  765.302-765.310 may be cited as the "Life-Prolonging Procedure

14  Act of Florida."

15         Section 25.  Subsection (1) of section 765.302, Florida

16  Statutes, is amended to read:

17         765.302  Procedure for making a living will; notice to

18  physician.--

19         (1)  Any competent adult may, at any time, make a

20  living will or written declaration and direct directing the

21  providing, withholding, or withdrawal of life-prolonging

22  procedures in the event that such person has a terminal

23  condition, has an end-stage condition, or is in a persistent

24  vegetative state suffers from a terminal condition. A living

25  will must be signed by the principal in the presence of two

26  subscribing witnesses, one of whom is neither a spouse nor a

27  blood relative of the principal. If the principal is

28  physically unable to sign the living will, one of the

29  witnesses must subscribe the principal's signature in the

30  principal's presence and at the principal's direction.

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  1         Section 26.  Subsection (1) of section 765.303, Florida

  2  Statutes, is amended to read:

  3         765.303  Suggested form of a living will.--

  4         (1)  A living will may, BUT NEED NOT, be in the

  5  following form:

  6                           Living Will

  7         Declaration made this .... day of ...., 19 .... I,

  8  ........, willfully and voluntarily make known my desire that

  9  my dying not be artificially prolonged under the circumstances

10  set forth below, and I do hereby declare that,: if at any time

11  I am both mentally and physically incapacitated

12         ....(initial).... and I have a terminal condition

13         or ....(initial).... and I have an end-state condition

14         or ....(initial).... and I am in a persistent

15  vegetative state

16

17  and if my attending or treating physician and another

18  consulting physician have determined that there is no

19  reasonable medical probability of my recovery from such

20  condition, I direct that life-prolonging procedures be

21  withheld or withdrawn when the application of such procedures

22  would serve only to prolong artificially the process of dying,

23  and that I be permitted to die naturally with only the

24  administration of medication or the performance of any medical

25  procedure deemed necessary to provide me with comfort care or

26  to alleviate pain.

27         It is my intention that this declaration be honored by

28  my family and physician as the final expression of my legal

29  right to refuse medical or surgical treatment and to accept

30  the consequences for such refusal.

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  1         In the event that I have been determined to be unable

  2  to provide express and informed consent regarding the

  3  withholding, withdrawal, or continuation of life-prolonging

  4  procedures, I wish to designate, as my surrogate to carry out

  5  the provisions of this declaration:

  6

  7  Name:.........................................................

  8  Address:......................................................

  9  .................................................. Zip Code:..

10  Phone:................

11         I understand the full import of this declaration, and I

12  am emotionally and mentally competent to make this

13  declaration.

14  Additional Instructions (optional):

15  ..............................................................

16  ..............................................................

17  ..............................................................

18                         ....(Signed)....

19                         ....Witness....

20                         ....Address....

21                          ....Phone....

22                         ....Witness....

23                         ....Address....

24                          ....Phone....

25

26         Section 27.  Subsection (2) of section 765.304, Florida

27  Statutes, is amended to read:

28         765.304  Procedure for living will.--

29         (2)  Before proceeding in accordance with the

30  principal's living will, it must be determined that:

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  1         (a)  The principal does not have a reasonable medical

  2  probability of recovering capacity competency so that the

  3  right could be exercised directly by the principal.

  4         (b)  The principal has a terminal condition, has an

  5  end-stage condition, or is in a persistent vegetative state.

  6  The principal's physical condition is terminal.

  7         (c)  Any limitations or conditions expressed orally or

  8  in a written declaration have been carefully considered and

  9  satisfied.

10         Section 28.  Section 765.305, Florida Statutes, is

11  amended to read:

12         765.305  Procedure in absence of a living will.--

13         (1)  In the absence of a living will executed pursuant

14  to s. 765.303, the decision to withhold or withdraw

15  life-prolonging procedures from a patient may be made by a

16  health care surrogate designated by the patient pursuant to

17  part II unless the designation limits the surrogate's

18  authority to consent to the withholding or withdrawal of

19  life-prolonging procedures.

20         (2)  Before exercising the incompetent patient's right

21  to forego treatment, the surrogate must be satisfied that:

22         (a)  The patient does not have a reasonable medical

23  probability of recovering capacity competency so that the

24  right could be exercised by the patient.

25         (b)  The patient is both mentally and physically

26  incapacitated with no reasonable medical probability of

27  recovery, the patient has an end-stage condition, the patient

28  is in a persistent vegetative state, or the patient's physical

29  condition is terminal.

30         Section 29.  Section 765.306, Florida Statutes, is

31  amended to read:


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  1         765.306  Determination of patient condition.--In

  2  determining whether the patient has a terminal condition, has

  3  an end-stage condition, or is in a persistent vegetative state

  4  or may recover mental and physical capacity, or whether a

  5  medical condition or limitation referred to in an advance

  6  directive exists, the patient's attending or treating

  7  physician and at least one other consulting physician must

  8  separately examine the patient. The findings of each such

  9  examination must be documented in the patient's medical record

10  and signed by each examining physician before life-prolonging

11  procedures may be withheld or withdrawn.

12         Section 30.  Section 765.308, Florida Statutes, is

13  renumbered as section 765.1105, Florida Statutes, and amended

14  to read:

15         765.1105 765.308  Transfer of a patient.--

16         (1)  A health care provider or facility that refuses to

17  comply with a patient's advance directive the declaration of a

18  patient, or the treatment decision of his or her surrogate,

19  shall make reasonable efforts to transfer the patient to

20  another health care provider or facility that will comply with

21  the directive declaration or treatment decision. This chapter

22  does not require a health care provider or facility to commit

23  any act which is contrary to the provider's or facility's

24  moral or ethical beliefs concerning life-prolonging

25  procedures, if the patient:

26         (a)  Is not in an emergency condition;, and

27         (b)  Has received written information upon admission

28  informing the patient of the policies of the health care

29  provider or facility regarding such moral or ethical beliefs.

30         (2)  A health care provider or facility that is

31  unwilling to carry out the wishes of the patient or the


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  1  treatment decision of his or her surrogate because of moral or

  2  ethical beliefs must within 7 days either:

  3         (a)  Transfer the patient to another health care

  4  provider or facility. The health care provider or facility

  5  shall pay the costs for transporting the patient to another

  6  health care provider or facility; or

  7         (b)  If the patient has not been transferred, carry out

  8  the wishes of the patient or the patient's surrogate, unless

  9  the provisions of s. 765.105 apply.

10         Section 31.  Section 765.310, Florida Statutes, is

11  renumbered as section 765.1115, Florida Statutes, and amended

12  to read:

13         765.1115 765.310  Falsification, forgery, or willful

14  concealment, cancellation, or destruction of directive

15  declaration or revocation or amendment; penalties.--

16         (1)  Any person who willfully conceals, cancels,

17  defaces, obliterates, or damages an advance directive a living

18  will without the principal's consent or who falsifies or

19  forges the revocation or amendment of an advance directive a

20  revocation of a living will of another, and who thereby causes

21  life-prolonging procedures to be utilized in contravention of

22  the previously expressed intent of the principal, commits a

23  felony of the third degree, punishable as provided in s.

24  775.082, s. 775.083, or s. 775.084.

25         (2)  Any person who falsifies or forges the advance

26  directive living will of another or who willfully conceals or

27  withholds personal knowledge of the revocation of an advance

28  directive a declaration, with the intent to cause a

29  withholding or withdrawal of life-prolonging procedures

30  contrary to the wishes of the principal, and who thereby

31  because of such act directly causes life-prolonging procedures


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  1  to be withheld or withdrawn and death to be hastened, commits

  2  a felony of the second degree, punishable as provided in s.

  3  775.082, s. 775.083, or s. 775.084.

  4         Section 32.  Subsection (3) of section 765.401, Florida

  5  Statutes, is amended to read:

  6         765.401  The proxy.--

  7         (3)  Before exercising the incapacitated patient's

  8  rights to select or decline health care, the proxy must comply

  9  with the pertinent provisions applicable to surrogates under

10  this chapter, except that a proxy's decision to withhold or

11  withdraw life-prolonging procedures must either:

12         (a)  Be supported by a written declaration; or

13         (b)  If there is no written declaration, the patient

14  must have a terminal condition, have an end-stage condition,

15  or be in a persistent vegetative state, and the proxy's

16  decision must be supported by clear and convincing evidence

17  that the decision would have been the one the patient would

18  have chosen had the patient been competent.

19         Section 33.  Section 765.404, Florida Statutes, is

20  created to read:

21         765.404  Persistent vegetative state.--For persons in a

22  persistent vegetative state, as determined by the attending

23  physician in accordance with currently accepted medical

24  standards, who have no advance directive and for whom there is

25  no evidence indicating what the person would have wanted under

26  such conditions, and for whom, after a reasonably diligent

27  inquiry, no family or friends are available or willing to

28  serve as a proxy to make health care decisions for them,

29  life-prolonging procedures may be withheld or withdrawn under

30  the following conditions:

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  1         (1)  The person has a judicially appointed guardian

  2  representing his or her best interest with authority to

  3  consent to medical treatment; and

  4         (2)  The guardian and the person's attending physician,

  5  in consultation with the medical ethics committee of the

  6  facility where the patient is located, conclude that the

  7  condition is permanent and that there is no reasonable medical

  8  probability for recovery and that withholding or withdrawing

  9  life prolonging procedures is in the best interest of the

10  patient. If there is no medical ethics committee at the

11  facility, the facility must have an arrangement with the

12  medical ethics committee of another facility or with a

13  community-based ethics committee approved by the Florida

14  Bio-ethics Network. The ethics committee shall review the case

15  with the guardian, in consultation with the person's attending

16  physician, to determine whether the condition is permanent and

17  there is no reasonable medical probability for recovery. The

18  individual committee members and the facility associated with

19  an ethics committee shall not be held liable in any civil

20  action related to the performance of any duties required in

21  this subsection.

22         Section 34.  The Department of Elderly Affairs shall

23  convene a workgroup composed of health care professionals,

24  health facilities, attorneys, consumers, clergy, academic

25  institutions, and other interested parties to develop model

26  advance directive forms. The department shall make the forms

27  available to the public. The department may reconvene the

28  workgroup as necessary to modify and update such forms.

29         Section 35.  Except as otherwise expressly provided in

30  this act, this act shall take effect October 1, 1999.

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