A paper about a piece of paper: Regulatory action as the most effective way to promote use of physician orders for life-sustaining treatment

Journal of Legal Medicine

Volumn 29, Issue 4, 2008, Pages 479-503

  Cerminara, Kathy L ^a   Bogin, Seth M ^a  

^a NOVA SOUTHEASTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; HEALTH CARE PERSONNEL; HEALTH PROGRAM; HEALTH PROMOTION; LAW; MEDICAL CARE; MEDICAL PRACTICE; REVIEW; TERMINAL CARE;

ADVANCE CARE PLANNING; ADVANCE DIRECTIVE ADHERENCE; DIFFUSION OF INNOVATION; FORMS AND RECORDS CONTROL; GOVERNMENT REGULATION; HEALTH KNOWLEDGE, ATTITUDES, PRACTICE; HUMANS; LIABILITY, LEGAL; LIFE SUPPORT CARE; PILOT PROJECTS; POLITICS; RESUSCITATION ORDERS; STATE GOVERNMENT; TERMINAL CARE; UNITED STATES;

EID: 56749163361     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947640802494838     Document Type: Review

References (197)

1. See GEOFFREY STEPHEN KIRK ET AL., THE PRESOCRATIC PHILOSOPHERS: A CRITICAL HISTORY WITH A SELECTION OF TEXTS 186-87 (1957).
2. WILLIAM H. COLBY, UNPLUGGED: RECLAIMING OUR RIGHT TO DIE IN AMERICA 95 (2006). Colby was the attorney for the family of Nancy Cruzan, whose end-of-life decision-making case was the first one heard in the United States Supreme Court. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990).
3. Susan E. Hickman et al., The POLST (Physician Orders for Life-Sustaining Treatment) Paradigm to Improve End-of-Life Care: Potential State Legal Barriers to Implementation, 36 J.L. MED. & ETHICS 119, 119-20 (2008).
4. The POLST form can be used in the home as well as in long-term-care facilities. See POLST.org, Information for Patients and Families, Frequently Asked Questions, available at http://www.ohsu.edu/polst/ patients-families/faqs.htm (last visited July 16, 2008) [hereinafter POLST FAQ].
5. See generally Hickman et al., supra note 3.
6. See id. at 120; Laura C. Hanson & Mary Ersek, Meeting Palliative Care Needs in Post-Acute Care Settings, 295 J.A.M.A. 681, 681-86 (2006);
7. Editorial, Withholding Resuscitation in Prehospital Care, 144 ANN. INTERN. MED. 692, 692-93 (2006).
8. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of those happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
9. See infra § III.B.
10. See infra § III.C.
11. See infra § III.A.
12. Even with the most thorough regulatory implementation, some statutory intervention, such as a legislative grant of immunity for medical personnel who act according to patients' POLST forms when performing or withholding life-sustaining techniques, may be needed. See § V.; see, e.g., WASH. REV. CODE § 18.71.210 (2008); N.C. GEN. STAT. § 90-21.17(d) (2007).
13. For example, New York calls its program Medical Orders for Life-Sustaining Treatment (MOLST), see POLST.org, Program Description for: New York, available at http://www.ohsu.edu/polst/programs/docs/ ny+program+description.pdf (last visited July 16, 2008); North Carolina calls its program Medical Orders for Scope of Treatment (MOST).
14. See Marsha D. Fretwell & Melanie Phelps, MOST: A New Portable Medical Order for North Carolina, N.C. MED. SOC'Y, available at http://www.ncmedsoc.org/non_members/ public_resources/final_most_manuscript.pdf (last visited July 16, 2008). Tennessee calls its Physician Orders for Scope of Treatment.
15. See Tennessee Dep't of Health, Advance Directives, available at http://health.state.tn.us/Boards/AdvanceDirectives/index.htm (last visited July 16, 2008).
16. POLST.org, Background, available at http://www.ohsu.edu/polst/ patients-families/faqs.htm (last visited July 16, 2008) [hereinafter POLST Background].
17. Id.
18. Id.
19. Keith Sonderling has enumerated several problems with advance directives. See Keith Sonderling, POLST: A Cure for the Common Advance Directive - It's Just What the Doctor Ordered, 33 NOVA L. REV.-(forthcoming 2009). Specifically, Sonderling stated: (1) advance directives lose credibility over time; (2) they are often written before the illness and merely talk about hypothetical problems; (3) they do not take into account advances in medicine; and (4) they are rarely revised or updated. Id. The first issue, that advance directives lose credibility over time, speaks to the fact that, as people get older, their views and desires change. A decision made at the age of 35 might not be the same as one made at 65. Advance directives also usually speak in hypothetical terms rather than specifics, since not much is known of the person's future health at the time they are written, and this can create confusion at the time of implementation. Id. Additionally, medical advances occur on a daily basis, and medical conditions that may have been terminal at the time the advance directive was written may be curable by simple interventions in the future. Id. Many of the issues surrounding the problems with advance directives can also be attributed to the reality that most people, after creating their advance directives, rarely return to them for review or revision. Id.
20. Furthermore, one of the deficiencies in advance directives is that physicians may not receive them in time for meaningful implementation. "[L]ong can be the road from the drafter's chair to the ICU bed." Angela Fagerlin & Carl E. Schneider, Enough: The Failure of the Living Will, HASTINGS CEN. REP. 35, Mar.-Apr. 2004.
21. In fact, one study showed that "62 percent of patients do not give their living will to their physician." Id. Another study found that only 26% of patients who had completed advance directives before entering the hospital had those directives recorded in their charts. Id. These issues may have led to, or at least compounded, the low rate of people actually completing advance directives, which in the United States is estimated at around 20% to 30% of adults. Susan E. Hickman et al., Hope for the Future: Achieving the Original Intent of Advance Directives, 35 HASTINGS CEN. REP. S26 (2005).
22. POLST Background, supra note 13.
23. Hot pink is the predominant color, but it can also be one of several other bright colors. The idea is that it will catch the eye of the health care provider in the patient's medical chart. POLST.org, POLST Paradigm Forms, available at http://dropbox.oaktree.com/polst/programs/sample-forms.htm (last visited July 16, 2008).
24. POLST FAQ, supra note 4.
25. See POLST Forms, supra note 18. Some states' POLST forms refer to artificially administered nutrition, while others refer to artificially administered nutrition and fluids.
26. See, e.g., POLST.org, POLST Paradigm Forms, Oregon, at http://www.ohsu.edu/polst/docs/polst2007sample.pdf (last visited May 14, 2008);
27. POLST.org, POLST Paradigm Forms, New York, http://www.ohsu.edu/polst/ docs/molst_form%20(pages1-4).pdf (last visited May 14, 2008). States that mention only nutrition and not fluids in the bolded title of the section on the form have notes addressing the provision of fluid to patients.
28. See, e.g., POLST.org, POLST Paradigm Forms, Washington State, available at http:// dropbox.oaktree.com/polst/programs/forms/wa.pdf (last visited July 16, 2008);
29. POLST.org, POLST Paradigm Forms, Oregon, available at http://dropbox.oaktree.com/polst/programs/forms/or.pdf (last visited July 16, 2008).
30. POLST FAQ, supra note 4.
31. Id.
32. Hickman et al., supra note 16, at S28. In this sense, POLST forms could be effective in promoting compliance by physicians and other health care professionals with the end-of-life wishes of even those who have not executed advance directives. See Kathy L. Cerminara, Eliciting Patient Preference in Today's Health Care System, 4 PSYCHOL., PUB. POL'Y & L. 688, 695-96 (1998) (noting that "[a]dvance directives effectively are a tool of those who can afford them").
33. See generally ALAN MEISEL & KATHY L. CERMINARA, THE RIGHT TO DIE: THE LAW OF END-OF-LIFE DECISION MAKING § 7 (3d ed. 2005 & supp. 2008). "Living wills are documents that give instructions to health care providers about particular kinds of medical care that individuals would or would not want to have to prolong life." Id. § 7.01(B)(3). A surrogate is "a person who makes decisions on behalf of another when that person acquires his authority to act by operation of law, be it common or a surrogate decision-making statute." Id. § 7.01(B)(6). "A durable power of attorney is a written instrument by which the principal designates another as his agent and which becomes or remains effective even when the principal becomes incapacitated." Id. § 7.02(D)(1). Unlike these advance directives, Do Not Resuscitate (DNRs) are physician orders, as opposed to patient requests, to withhold or withdraw treatment. Id. at § 6.02(B).
34. Hickman et al., supra note 16, at S28.
35. The POLST form can be filled out by any health care professional working with the patient, but must be signed by the patient's primary health care professional to be official. See POLST FAQ, supra note 4.
36. Hickman et al., supra note 16, at S28. This means it can move with the patient between health care facilities. Id.
37. Id.
38. Id.
39. FOCUS: OREGON'S POLST PROGRAM, STATE INITIATIVES IN END-OF-LIFE CARE 1 (Midwest Bioethics Center, Kansas City, Mo., Apr. 1999), available at http://www.practicalbioethics.org/FileUploads/SI_3.pdf (last visited July 16, 2008) [hereinafter STATE INITIATIVES].
40. See Hickman et al., supra note 16, at S28.
41. See Melinda A. Lee et al., Physician Orders for Life-Sustaining Treatment (POLST): Outcomes in a PACE Program, 48 J. AM. GERIATR. SOC'Y 1219 (2000).
42. TAREK Z. MAHDI, CENTER TO ADVANCE PALLIATIVE CARE, COMMUNITY BASED MODEL FOR PHYSICIANS' ORDERS FOR LIFE SUSTAINING TREATMENT(POLST) IMPLEMENTATION, available at http://www.capc.org/supportfrom-capc/capc-poster-sessions/ index_html/capc-orlando-2007/abstracts/01 (last visited July 16, 2008).
43. James W. Manne, University of Pittsburgh, Center for Bioethics and Health Law, A Critical Look at the Physician Orders for Life-Sustaining Treatment (POLST): What Are Its Weaknesses?, 29 (2007), available at http://etd.library.pitt.edu/ETD/available/etd-11262007-200844/unrestricted/ Manne-BIOETHICS-ETD1-2007.pdf (last visited July 16, 2008).
44. Id.
45. Id.
46. Hickman et al., supra note 3, at 120;
47. see NATIONAL QUALITY FORUM, A NATIONAL FRAMEWORK AND PREFERRED PRACTICES FOR PALLIATIVE AND HOSPICE CARE QUALITY C-19 (Preferred Practice No. 34, recommending that practitioners "[c]onvert the patient treatment goals into medical orders, and ensure that the information is transferable and applicable across care settings, including long-term care, emergency medical services, and hospital care, through a program such as the Physician Orders for Life-Sustaining Treatment (POLST) program").
48. POLST.org, Approach to Implementation of the POLST Paradigm Program in Your State, available at http://dropbox.oaktree.com/polst/developing/ implementation-steps.htm (last visited July 16, 2008).
49. Id.
50. See id.
51. Id. Sometimes that substantive law can pose barriers and may require revision of the form to match the state's substantive quirks. See Hickman et al., supra note 3, at 120.
52. POLST.org, POLST Paradigm Forms, New York, available at http://dropbox.oaktree.com/polst/ programs/docs/ny+program+description.pdf (last visited July 16, 2008).
53. POLST.org, POLST Paradigm Forms, Wisconsin, available at http://dropbox.oaktree.com/polst/ programs/docs/wi+program+description.pdf (last visited July 16, 2008).
54. Adding another level of complexity, the substantive laws of more than one state may come into play in a metropolitan area that serves multiple states. See, e.g., e-mail from Don F. Reynolds, MU Center for Health Ethics, to Seth M. Bogin (Feb. 29, 2008) (on file with author) (describing the bi-state consortium that arose to develop a POLST-type form in Kansas City, Missouri).
55. Of necessity, because this is not an article about medical malpractice or even tort law, this statement is an imprecise generalization. Generally speaking, health care professionals themselves set the standard of care that determines the extent of a medical professional's duty to a patient. In a medical malpractice case, the most common method of establishing the standard of care is to examine what other health care professionals would do in the same or similar situation. See Philip G. Peters, Empirical Evidence and Malpractice Litigation, 37 WAKE FOREST L. REV. 757, 758 (2002). That is not the only way, however, to determine a standard of care.
56. See generally Philip G. Peters, The Quiet Demise of Deference to Custom: Malpractice Law at the Millennium, 57 WASH. & LEE L. REV. 163 (2000). Moreover, even when professionals set the standard of care, it may not only be other health care professionals in the same locality whose practices are considered.
57. See Peters, supra, at 759. In some jurisdictions, or as to certain issues, medical malpractice law looks to national standards of care.
58. See id.
59. See POLST.org, POLST Paradigm Program by State, available at http://www.ohsu.edu/polst/programs/state+programs.htm (last visited July 16, 2008). Many states, including Arkansas, Kansas, and South Carolina have had POLST show up on the radar only to disappear or be put on hold.
60. See, e.g., e-mail from Donna Bales, Kansas Life Project, to Seth M. Bogin (Feb. 27, 2008) (on file with author);
61. see also Penelope Chase, Ethics Column: End of Life Educational Collaborative, SOUTH CAROLINA NURSE, Jan.-Mar. 2006, available at http://findarticles.com/p/articles/mi_qa4103/ is_200601/ai_n17177621 (last visited July 16, 2008). Other states, including Illinois, Indiana, and Wyoming, have yet to publicly consider the program.
62. POLST.org, POLST Paradigm Program by State, available at http://www.ohsu.edu/polst/programs/state+programs.htm (last visited Aug. 1, 2008). If POLST is to take hold in these states, it will take action by motivated interest groups like the ones mentioned in this section.
63. Altru Web Site, Palliative Care, POLST, available at http://www.altru.org/body.cfm?id=384 (last visited July 16, 2008).
64. POLST.org, History of POLST Paradigm Development, available at http://dropbox.oaktree.com/polst/ developing/history.htm (last visited July 16, 2008) [hereinafter POLST History].
65. Id. (noting beginning of effort in 1991 and administrative recognition in 1996).
66. W.A. DREW EDMONDSON, OFFICE OF THE ATT'Y GEN. OF OKLA., ATTORNEY GENERAL'S TASK FORCE REPORT ON THE STATE OF: END-OF-LIFE HEALTH CARE 8 (2005), available at http://www.oag.state.ok.us/oagweb.nsf/ 0/ 99fe23d943c38544862572b400738e6b/$FILE/end-of-life%20report_001.pdf (last visited July 16, 2008).
67. CHARLES SABATINO, ABA COMM'N ON LAW AND AGING, OKLAHOMA ATTORNEY GENERAL ISSUES LEGAL OPINION THAT COULD ELIMINATE BARRIERS TO POLST, available at http://www.ohsu.edu/polst/news/ OK+AG+opinion+summary.pdf (last visited July 16, 2008).
68. Foundation for Healthy Communities, Physician Orders Regarding Treatment (PORT), Fact Sheet, available at http://www.healthynh.com/fhc/ initiatives/performance/eol/PORT%20FACT% 20SHEET%20CONCORD.pdf (last visited July 16, 2008);
69. STEPHEN TELATNIK, ACTIONABLE ADVANCE DIRECTIVES, SLIDES 25-28, available at http://www.cmda.us/Articles/PORTABILITY%20OF%20ADVANCE%20DIRECTIVES%20CMDA- telatnik-rev11.07.ppt#270 (last visited July 16, 2008).
70. POLST.org, Program Description for: Nevada, available at http://dropbox.oaktree.com/polst/programs/nevada.htm (last visited July 16, 2008).
71. Nevada Center for Health and Ethics Policy, NCEHP Summary of Physician Orders for Scope of Treatment, http://hhs.unr.edu/ncehp/spost_summary.html (last visited on May 13, 2008). Outside of health care facilities, the SPOST is not valid without a DNR identification card. Id. As is common in other states, Nevada has attempted to implement SPOST through legislation but has been unsuccessful; SPOST advocates hope the success of the pilot program will spur future legislative success. E-mail from Sally Hardwick, Nevada Center for Ethics and Health Policy, to Keith Sonderling, J.D. 2008, Nova Southeastern University Shepard Broad Law Center (Jan. 27, 2007) (on file with authors).
72. See e-mail from Tammy Rolfe, Director of Quality Improvement and Regulatory Affairs, Maine Health Care Ass'n, to Seth M. Bogin (Feb. 27, 2008) (on file with authors); e-mail from Sandy Schellinger, Director, Allina Palliative Care, to Seth M. Bogin (Feb. 27, 2008) (on file with authors); e-mail from Nancy Joyner, Clinical Nurse Specialist, Palliative Care, to Seth M. Bogin (Feb. 29, 2008) (on file with authors).
73. E-mail from Tammy Rolfe, Director of Quality Improvement and Regulatory Affairs, Maine Health Care Ass'n, to Seth M. Bogin (Feb. 27, 2008) (on file with authors).
74. E-mail from Sandy Schellinger, Director, Allina Palliative Care, to Seth M. Bogin (Feb. 27, 2008) (on file with authors).
75. E-mail from Nancy Joyner, Clinical Nurse Specialist, Palliative Care, to Seth M. Bogin (Feb. 29, 2008) (on file with authors).
76. E-mail from Lisa Weber-DeVoll, Medical Social Worker, Columbus Community Hospital, to Seth M. Bogin (Mar. 4, 2008) (on file with authors).
77. E-mail from Doug Cluxton, Vice President, Ohio Hospice & Palliative Care Organization, to Seth M. Bogin (Feb. 28, 2008) (on file with author). A bill was created by the Legislative Service Commission. Similarly, interest groups in Montana are attempting to implement the POLST program by petitioning for policy change with the Montana Department of Public Health and Human Services, rather than through statutory change. E-mail from Joan Elil, Program Specialist, Montana Department of Justice, to Seth M. Bogin (Feb. 28, 2008) (on file with author).
78. See, e.g., Ashley G. Politz, NASW: La. Chapter, NASW-LA Continues Its Partnership with LA POLST 5 (Nov./Dec. 2007-08); see also La. Atty. Gen. Op. No. 07-0289, 2007 WL 4370329 (La.A.G.).
79. The Attorney General's Office stated that new legislation was not needed to implement POLST in Louisiana, but recommended its passage "in order to provide any specifically needed, legally-binding details regarding the use of a POLST." La. Atty. Gen. Op. No. 07-0289, 2007 WL 4370329 (La.A.G.). The opinion states that, under Louisiana law, POLST must be revocable by the patient, so that he or she is not locked into an earlier decision despite a later change of mind. Id. Additionally, POLST should bear two witness signatures and contact information so the witnesses may be contacted to attest to the patient's desires if needed. Id. The issue of physician immunity when implementing the directives on the POLST form gave the Attorney General pause, and became a large part of the reason for the recommendation that advocacy groups pursue specific legislation. Id. Under Louisiana law, health care providers who act under the color of a patient's "document or manifest" in withholding treatment are immune from criminal and civil liability. LA. REV. STAT. ANN. § 40:1299.58.8 (2008). The Attorney General opined that it was unclear whether that immunity would extend to health care providers acting pursuant to statements in a POLST form. La. Atty. Gen. Op. No. 07-0289, 2007 WL 4370329 (La.A.G.).
80. Politz, supra note 61, at 5.
81. S.B. 28, 80th Leg., Reg. Sess. (Tex. 2007) (died in Public Health Committee); H.R. 1017 (Fla. 2006) (died in Health Care Regulations Committee); S.B. 2527 (Fla. 2006) (died in Committee on Health Care).
82. STATE INITIATIVES, supra note 30, at 4.
83. E-mail from Don Reynolds, MU Center for Health Ethics, to Seth M. Bogin (Feb. 29, 2008) (on file with author). Since this legislative disappointment, advocates have seen POLST spread even further through Missouri, although it has yet to acquire statewide approval. Id.
84. Compassion and Support, Medical Orders for Life-Sustaining Treatment-Professionals, MOLST Community Pilot, available at http://www.compassionandsupport.org/index.php/for_professionals/molst/ community_pilot (last visited July 16, 2008).
85. Id.
86. Program Description for: New York, supra note 12.
87. Compassion and Support, Medical Orders for Life-Sustaining Treatment-Professionals, Development of the MOLST Program, available at http://www.compassionandsupport.org/index.php/for_professionals/molst/ development (last visited July 16, 2008).
88. MOLST Community Pilot, supra note 67.
89. Id. S.B. 5785, 211th Leg. Sess. (N.Y. 2005). These bills were later amended to include not only DNR orders but also Do Not Intubate (DNI) orders in 2006. S.B. 6365, 212th Leg. Sess. (N.Y. 2006).
90. MOLST Community Pilot, supra note 67.
91. Id.
92. Program Description for: New York, supra note 12.
93. See 2007 Bill Text N.Y.A.B. 10764; 2007 N.Y.S.B. 7683.
94. 20 PA. CONS. STAT. § 5488 (2007).
95. See id. § 5488(a).
96. E-mail from Marian Kemp, Coalition for Quality at the End of Life, to Seth M. Bogin (Feb. 28, 2008) (on file with author). Even before legislative intervention, grassroots efforts had implemented POLST in parts of Central and Western Pennsylvania. Id.
97. See, e.g., W. VA. CODE § 16-30-3(u) (2008) (West Virginia Health Care Decisions Act).
98. Id.
99. Id.
100. Id.
101. Id. § 16-30-25(b)(1)-(3).
102. POLST.org, Program Description for: West Virginia, available at http://dropbox.oaktree.com/polst/ programs/docs/wv+program+description.pdf (last visited July 16, 2008).
103. N.C. GEN. STAT. § 90-21.17 (2007).
104. Id. § 90-21.17(a).
105. Id. § 90-21.17(b).
106. Id. § 90-21.17(c).
107. See, e.g., WASH. REV. CODE § 18.71.210 (2008); W. VA. CODE § 16-30-10(a) (2008).
108. N.C. GEN. STAT. § 90-21.17 (d) (West 2008). This is important for encouraging compliance with the MOST among health care workers. See Marie O. Tyminski, The Current State of Advance Directive Law in Ohio: More Protective of Provider Liability than Patients Rights, 19 J.L. & HEALTH 411, 423 (2004-2005). It also is one of the reasons that an advocacy group might favor legislation as a pathway to implementation. See infra § III.B.
109. MD. CODE ANN., HEALTH-GEN. § 5-608.1 (2008).
110. See id.
111. Id. § 5-608.1(a) & (e).
112. Id. § 5-608.1(c) & (d).
113. See IDAHO CODE ANN. §§ 39-4512A-39-4512C (2008).
114. Id. § 39-4512A.
115. See id.
116. Id. § 39-451A(6);
117. see also CAL. PROB. CODE § 4780(a)(2).
118. See, e.g., OFFICE OF THE SEC. OF STATE OF IDAHO, IDAHO EMS BUREAU, PHYSICIAN ORDERS FOR SCOPE OF TREATMENT(POST) FORM INSTRUCTIONS, available at http://www.idsos.state.id.us/online/ hcdr/dnr/POST_Instructions.pdf (last visited Aug. 1, 2008).
119. IDAHO CODE ANN. § 39-4512A(5) (2008). The "identification device" is "standardized jewelry which can be worn around the wrist, neck or ankle, and which has been approved by the department of health and welfare." Id. § 39-4502(13).
120. Do Not Resuscitate (DNR) orders are orders authorizing the withholding of cardiopulmonary resuscitation (CPR). MEISEL & CERMINARA, supra note 24, § 6.02[A], at 6-7. State law may authorize the withholding of CPR from patients based on either a patient's directive or a physician order, or a combination of both.
121. See id. § 6.02[C][2]. When withholding of CPR is authorized through a physician order, the role the DNR order plays in that withholding is substantially similar to the role a POLST form plays in withholding care pursuant to an expression of the patient's wishes.
122. IDAHO CODE ANN. § 39-4512B(2) (2008).
123. Id. § 39-4512C.
124. POLST.org, Program Description for: Oregon, available at http://www.ohsu.edu/polst/programs/ oregon-details.htm pdf (last visited Aug. 1, 2008).
125. Id.
126. See OR. BD. OF MED. EXAM'RS, BME REPORT, POLST: WHAT'S IT ALL ABOUT? 1, 5 (Winter-Spring, 2007), available at http://www.oregon.gov/OMB/newsletter/WinterSpring07.pdf (noting endorsement by the Oregon Board of Medical Examiners) (last visited Aug. 1, 2008).
127. OR. REV. STAT. § 682.245 (2007).
128. POLST History, supra note 48.
129. OR. ADMIN. R. § 847-035-0030(6) (2008).
130. POLST History, supra note 48 (stating that over one million POLST forms have been distributed since the start of the program).
131. POLST.org, Program Description for: Washington, available at http://www.doh.wa.gov/hsqa/emstrauma/resuscitation.htmpdf (last visited Aug. 1, 2008).
132. WASH. REV. CODE § 43.70.480 (2008);
133. Id. § 18.71.210.
134. Id. § 43.70.480.
135. Id. § 18.71.210.
136. See Wash. State Dep't of Health, Office of Emergency Medical Services and Trauma Systems, Physician Orders for Life-Sustaining Treatment (POLST), available at http://www.doh.wa.gov/hsqa/emstrauma/ resuscitation.htm (last visited Aug. 1, 2008) [hereinafter WDOH-POLST].
137. UTAH CODE ANN. § 26-21-1 (2008). All of the subsections within 26-21 of the Utah Code Annotated relate to this power of the Utah Department of Health.
138. UTAH ADMIN. CODE R. 432-31-2 (2008).
139. UTAH ADMIN. CODE R. 432-31-4(1) (2008).
140. UTAH ADMIN. CODE R. 426-100-6 (2008).
141. Tenn. Op. Atty. Gen. No. 05-093, 2005 WL 1839873 (Tenn. A.G.).
142. TENN. CODE ANN. § 68-11-224(i)(1) (2008).
143. Id. § 68-11-1805.
144. Tenn. Op. Atty. Gen., supra note 121.
145. WIS. STAT. § 154.03 (2007).
146. POLST.org, Program Description for: Wisconsin, available at http://www.ohsu.edu/ethics/polst/programs/docs/wi+program+description.pdf (last visited Aug. 1, 2008).
147. Governor's Office, Governor Signs 178 Bills into Law, HAWAII REPORTER, June 7, 2006, at http://www. hawaiireporter.com/story.aspx?3c86326d-1f6d-4d5e-a419-5eb6018f554a (referring to Act 46(06)) (last visited Aug. 1, 2008) [hereinafter Hawaii Act 46].
148. HAW. REV. STAT. § 321-23.6 (2008).
149. Oneway in which an agency may be so satisfied is direct suggestion from the legislature. In Georgia, for example, the state senate has passed a resolution urging the Georgia Department of Human Resources to establish a POLST-like program. S. Res. 386, 149 Gen. Assem., Reg. Sess. (Ga. 2007).
150. See, e.g., e-mail from Lisa Weber-DeVoll, Medical Social Worker, Columbus Community Hospital, to Seth M. Bogin (Feb. 28, 2008) (on file with author).
151. See Hickman et al., supra note 3, at 124.
152. See, e.g., WDOH-POLST, supra note 116.
153. ALFREDC. AMAN, JR. & WILLIAMT. MAYTON, ADMINISTRATIVE LAW7 (2d ed. 2001).
154. Id.
155. See, e.g., Wash. State Dep't of Health, About the Department of Health, at http://www.doh.wa.gov/about.htm (last visited on Aug. 1, 2008).
156. See Jim Rossi, Overcoming Parochialism: State Administrative Procedure and Institutional Design, 53 ADMIN. L. REV. 551, 555 (2001) (noting state legislatures' "attenuated sessions, coupled with term limits in many states").
157. Paul Teske has noted that "only seven state legislatures operate full-time, in six states the legislature convenes only every other year, and in thirty-eight states legislators have no paid staffers (though most have access to some committee staffers)." PAUL TESKE, REGULATION IN THE STATES 203 (2004).
158. "Bernie Horn, Policy Director for the Center for Policy Alternatives, a [liberal] think tank that works on state issues, [argues]: State legislators are 'underpaid, understaffed and overwhelmed with work.' Their lack of resources makes them vulnerable. . . . They're susceptible to influence even when they're well meaning." John Dunbar & Meleah Rush, The Fourth Branch: Study Finds $570 Million Spent on Lobbying in the States in 2000, CTR. FOR PUB. INTEGRITY 3 (2002);
159. see also TESKE, supra note 136, at 203-05.
160. Rossi, supra note 136, at 555.
161. TESKE, supra note 136, at 203.
162. See, e.g., Irma S. Russell, A Common Tragedy: The Breach of Promises to Benefit the Public Commons and the Enforceability Problem, 11 TEX. WESLEYAN L. REV. 557, 578 (2005).
163. See, e.g., S.B. 28, 80th Leg., Reg. Sess. (Tex. 2007) (died in Public Health Committee); H.R. 1017 (Fla. 2006) (died in Health Care Regulations Committee); S.B. 2527 (Fla. 2006) (died in Committee on Health Care).
164. Although it is easier to change an administrative regulation, there is still a legal process involved in doing so. In Texas, for example, to revise an administrative regulation an agency has to give timely notice to the Secretary of State, at which time the proposed rule change will undergo inspection to ensure it comports with the state's laws. See, e.g., 22 TEX. ADMIN. CODE § 107.60 (2008);
165. see also MO. REV. STAT. § 536.021 (2008) (providing for a similar process).
166. At least one POLST advocate has stated that the group with which she is associated "investigated the legislative route, but it became more contentious than we expected." That group determined it would be best to proceed with a grassroots method of implementation until "communities become comfortable with the form and its implementation," at which time the group would again approach the legislature. E-mail from Sally Hardwick, Nevada Center for Ethics and Health Policy, to Keith Sonderling, J.D. 2008 (Jan. 27, 2007) (on file with author).
167. See, e.g., Model State Admin. Procedure Act §§ 3-101- 3-117.
168. Cf. Cary Coglianese, Citizen Participation in Rulemaking: Past, Present, and Future, 55 DUKE L.J. 943, 951 (2006) (noting traditional "paucity of participation by ordinary citizens in agency rulemakings").
169. See Terri A. Schmidt et al., Honoring Treatment Preferences Near the End of Life: The Oregon Physician Orders for Life-Sustaining Treatment (POLST) Program, 550 ADV. EXPERIMENTAL MED. & BIOL. 235, 261 (2004).
170. See id.
171. Hawaii Act 46, supra note 126.
172. Gravel v. United States, 408 U.S. 606, 653 (1972) (Brennan, J., dissenting). Cf. Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2073 (2005) (describing one "leading use" of the term " accountability" in "contemporary scholarship" as "the idea that elected officials - legislators and the chief executive - are accountable to the people, while officials who obtained their position by appointment or examination are not").
173. See, e.g., Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring);
174. see also Boreali v. Axelrod, 517 N.E.2d 1350, 1356, 523 N.Y.S.2d 464 (1987) ("Manifestly, it is the province of the peoples' elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends.").
175. Cf. Coglianese, supra note 145.
176. Aman & Mayton, supra note 133, at 11 (describing Congress and federal considerations, which seem equally applicable at the state level).
177. This is true not just of rights assured under state statutory law. Although all states have statutes governing at least some portion of end-of-life decision-making, MEISEL & CERMINARA, supra note 24, § 7.01(A), many states' statutory schemes also provide that citizens' rights under common law and state and federal constitutions remain in place and are not derogated by the existence of the statutory provisions. Id. § 5.04(A).
178. BERNARD SCHWARTZ, ADMINISTRATIVE Law 182 (3d ed. 1991).
179. Id.
180. "Broadly speaking, courts review final agency action . . . for errors of law and for reasonableness in finding facts or exercising discretion." MICHAEL ASIMOW ET AL., STATE AND FEDERAL ADMINISTRATIVE LAW 9 (2d ed. 1998);
181. see also Model State Administrative Procedure Act § 5-116 (describing scope of review of agency action).
182. See generally William Funk, Rationality Review of State Administrative Rulemaking, 43 ADMIN. L. REV. 147 (1991) (discussing judicial failure to reviewstate agency rulemaking for rationality).
183. Paul Teske offers Alaska as an example of a state in which the administrative procedure act (APA) grants the state legislature the authority to veto administrative regulations directly. TESKE, supra note 136, at 202-06; see ALASKA STAT. § 44.62.320 (2008); see also id. § 24.20.445. In Ohio, the state APA provides that both legislative houses' concurrences in a resolution can invalidate a proposed rule. TESKE, supra note 136, at 206; see OHIO REV. CODE ANN. §§ 111.15(D), 119.03(H), 111.15(B)(1)(b), 119.04(A)(1)(b) (2008). Ohio has legislative review procedures relating to both proposed rules and adopted rules. Compare OHIO REV. CODE ANN. § 119.03(I) (2008) with id. § 119.031. Additionally, POLST programs implemented through the state agency rulemaking process may encounter executive oversight in the states that have granted their governors some forms of agency regulatory review power. TESKE, supra note 136, at 210. Teske provides some examples from different states, including: (a) the governor's power to disapprove a rule without cause and rescind an adopted rule by an executive order (Indiana), id., and (b) the governor's use of an executive order to suspend or veto any rules or regulations (Louisiana). Id.
184. See, e.g., WASH. REV. CODE § 18.71.210 (2008); N.C. GEN. STAT. § 90-21.17(d) (2007); see also MEISEL & CERMINARA, supra note 24, § 7.01(A); Hickman et al., supra note 3, at 124; Kathie Durbin, Bill Would Bolster End of Life Wishes, SEATTLE TIMES, Feb. 10, 2008, at B4.
185. MEISEL & CERMINARA, supra note 24, § 7.01(A).
186. See Joanna M. Shephard, Tort Reforms' Winners and Losers: The Competing Effects of Care and Activity Levels, 55 UCLA L. REV. 905, 921 (2008);
187. Randolph Gordon & Brook Assefa, A Tale of Two Initiatives: Where Propaganda Meets Fact in the Debate Over America's Health Care, 4 SEATTLE J. SOC. JUST. 693, 713 (2006).
188. See Liebmann, 265 U.S. at 311.
189. See, e.g., Program Description for: Oregon, supra note 105.
190. See Thomas Goldsmith, More Choices Available When End of Life Is Near, NEWS & OBSERVER, Oct. 1, 2007, at A1 (stating that "[o]pponents of POLST, [such as] right-to-life groups and the Roman Catholic Diocese of Raleigh, say [POLST] leans too heavily toward withdrawing life support").
191. See Kathy L. Cerminara, Critical Essay: Musings on the Need to Convince Some People with Disabilities that End-of-Life Decision-Making
192. See, e.g., supra note 162.
193. See, e.g., supra text accompanying notes 113-15 (describing the Washington Department of Health's use of a state statute assuring immunity to medical personnel who follow advance directives as part of its authority to approve a POLST program).
194. MEISEL & CERMINARA, supra note 24, § 7.10[E], at 7-150.
195. See, e.g., La. Att'y Gen. Op. No. 07-0289, 2007 WL 4370329 (La. A.G.).
196. See, e.g., FLA. STAT. ANN. § 765.109(a) (2008) (providing for immunity from criminal prosecution, civil liability, and administrative sanction "as a result of carrying out a health care decision made in accordance with the provisions of this chapter [on advance directives]").
197. See supra note 16 and text accompanying notes 23-28.