Health; Palliative Care and Pain Management
Creates the advisory commission on Hawaii palliative care and pain management within the executive office on aging, to send out questionnaires to Hawaii health institutions regarding palliative care and pain management (PCAPM) training, and recommend legislation and institutional actions re PCAPM.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO Palliative Care and Pain management.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature declares its intent to devote the necessary resources and to adopt the most appropriate policies to achieve the goal that all citizens of Hawaii have access to the highest possible quality of palliative care and pain management.
SECTION 2. Short title. This Act shall be known and may be cited as the "Hawaii Palliative Care and Pain Management Act of 2003".
SECTION 3. Definitions. (a) As used in this Act, the following words and phrases shall have the following meanings:
"Accepted guideline" means a care or practice guideline for pain management developed by a nationally recognized clinical or professional association, specialty society, or government-sponsored agency, based on original research or the review of existing research and expert opinion. If currently accepted guidelines are not available, then rules, policies, or guidelines issued by the board may serve the function of the guidelines for the purposes of this Act. The board rules, policies, and guidelines shall conform to the intent of this Act. Guidelines established primarily for purposes of coverage, payment, or reimbursement shall not qualify as "accepted guidelines" when offered to limit treatment options otherwise covered by this Act; and may be "accepted guidelines" for the purposes of this Act, only if they are not inconsistent with the provisions of section 5 of this Act.
"Board" means the board of medical examiners responsible for licensing physicians and physician assistants pursuant to chapter 453, and osteopathic physicians and surgeons pursuant to chapter 460, Hawaii Revised Statutes; the state board of nursing responsible for licensing nurses pursuant to chapter 457, Hawaii Revised Statutes; and the board of pharmacy responsible for licensing pharmacists pursuant to chapter 461, Hawaii Revised Statutes.
"Clinical expert" means an individual who by reason of specialized education or substantial relevant experience in pain management has knowledge regarding current standards, practices, and guidelines.
"Disciplinary action" means action taken by a board against a licensed health care professional, including informal or formal and remedial or punitive actions.
"Licensed health care professional" means a licensed physician, physician assistant, nurse, or pharmacist.
"Nurse" means an individual licensed by the state board of nursing under chapter 457, Hawaii Revised Statutes.
"Pharmacist" means an individual licensed by the board of pharmacy under chapter 461, Hawaii Revised Statutes.
"Physician" means an individual licensed to practice medicine or osteopathy by the board of medical examiners under chapter 453 or 460, Hawaii Revised Statutes, respectively.
"Physician assistant" means an individual licensed by the board of medical examiners under section 453-5.3, Hawaii Revised Statutes.
"Therapeutic purpose" means the use of pharmaceutical and non-pharmaceutical medical treatment that conforms substantially to accepted guidelines for pain management.
SECTION 4. (a) Neither disciplinary action nor state criminal prosecution shall be brought against a licensed health care professional for prescribing, dispensing, or administering medical treatment for the therapeutic purpose of relieving pain so long as the licensed health care professional can demonstrate by reference to an accepted guideline that the licensed health care professional's actions substantially complied with an accepted guideline and the standards of practice identified in section 5 of this Act. The showing of substantial compliance with an accepted guideline may be rebutted only by clinical expert testimony. A showing that a guideline otherwise qualified to be an accepted guideline is not an accepted guideline because it is inconsistent with the provisions of section 5 of this Act may be made by clinical expert testimony.
(b) In the event that disciplinary action or criminal prosecution is pursued, the board or prosecutor shall produce clinical expert testimony supporting the finding or charge that a licensed health care professional violated disciplinary standards or other legal requirements. Evidence of noncompliance with an accepted guideline in and of itself shall not be sufficient to support disciplinary or criminal action.
(c) The provisions of this section shall apply to licensed health care professionals in the treatment of all patients for pain regardless of the patient's prior or current chemical dependency or addiction. The board may develop and issue rules, policies, or guidelines establishing standards and procedures for the application of this Act to the care and treatment of chemically dependent individuals. The board by rule may establish that any particular guideline otherwise qualified to be an accepted guideline is not an accepted guideline on the ground that it is inconsistent with the provisions of section 5 of this Act.
(d) A pharmacist shall be immune from any civil or criminal liability and professional discipline for any action taken by the pharmacist in reliance on a reasonable belief that an order purporting to be a prescription was issued by a licensed health care professional in the usual course of professional treatment or in authorized research.
SECTION 5. (a) Nothing in this Act shall be construed to expand the authorized scope of practice of any licensed health care professional.
(b) Nothing in this Act shall prohibit the discipline or prosecution of a licensed health care professional for:
(1) Failing to maintain complete, accurate, and current records documenting the physical examination and medical history of a patient, the basis for the clinical diagnosis of a patient, and the treatment plan for a patient;
(2) Writing false or fictitious prescriptions for controlled substances scheduled in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 801 et seq. or in chapter 329, Hawaii Revised Statutes;
(3) Prescribing, administering, or dispensing pharmaceuticals in violation of the provisions of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 801 et seq. or of chapter 329, Hawaii Revised Statutes;
(4) Diverting medications prescribed for a patient to the licensed health care professional's own personal use; or
(5) Causing, or assisting in causing, the suicide, euthanasia, or mercy killing of any individual, provided that it is not "causing, or assisting in causing, the suicide, euthanasia, or mercy killing of any individual" to prescribe, dispense, or administer medical treatment for the purpose of alleviating pain or discomfort, even if the medical treatment may increase the risk of death, so long as the medical treatment is not also furnished for the purpose of causing, or the purpose of assisting in causing, death for any reason.
SECTION 6. The board shall make reasonable efforts to notify licensed health care professionals under its jurisdiction of the existence of this Act. At a minimum, the board shall inform any licensed health care professional investigated in relation to the licensed health care professional's practices in the management of pain of the existence of this Act.
SECTION 7. (a) The advisory commission on Hawaii palliative care and pain management is created within the executive office on aging. The mission of the commission shall be the following:
(1) Prepare, within one hundred twenty days of its appointment, separate questionnaires for the following institutions in this State:
(B) Nursing homes;
(C) Medical schools;
(D) Nursing schools; and
(E) Home care agencies and hospice agencies;
designed to structure and facilitate self-studies by each of these institutions. The self-studies for the hospitals, nursing homes, home care agencies, and hospice agencies shall be designed to identify the strengths and weaknesses of each facility's provision of palliative care and pain management. The self-studies for the medical schools and nursing schools shall be designed to identify the strengths and weaknesses of each school's training in palliative care and pain management;
(2) Study the completed questionnaires and draw on their contents, as well as other sources of information, to identify strengths, weaknesses, and disparity in palliative care and pain management training and care provided throughout Hawaii. Based on this evaluation, the commission shall recommend legislative, regulatory, and voluntary institutional actions designed to achieve a consistently high quality of palliative care and pain relief throughout Hawaii; and
(3) Develop guidelines to establish recommended parameters for the investigation of prescribers or dispensers of schedule II controlled substances, as listed in chapter 329, Hawaii Revised Statutes, for the treatment of pain consistent with the need to avoid deterring them from achieving adequate pain relief for their patients.
(b) The committee shall consist of thirteen members, as follows:
(1) Five members appointed by the governor, including one physician chosen to represent the medical schools of Hawaii, one nurse chosen to represent the nursing schools of Hawaii, one physician chosen to represent the Hawaii Medical Association, one person chosen to represent Kokua Mau, and one person chosen to represent law enforcement. The representative of law enforcement shall be selected after consultation with the attorney general;
(2) Four members appointed by the senate majority leader, including one person chosen to represent nursing homes, one person chosen to represent the Hawaii Cancer Pain Initiative, a pharmacist, and a representative of an organization that represents persons with a condition requiring ongoing treatment for pain; and
(3) Four members appointed by the speaker of the house of representatives, including one physician chosen to represent hospitals, a specialist in palliative care, a specialist in pain management, and a representative of an organization that represents persons with disabilities.
(c) The commission shall select a chairperson and hold its first meeting not later than September 1, 2003. The commission shall select a full-time executive director, who shall serve at the pleasure of the commission. To the extent authorized by the commission, the executive director shall employ additional staff members. The commission shall issue a preliminary report of its activities and tentative findings and recommendations, including identification of issues requiring further study, to the governor, the attorney general, and the legislature not later than December 31, 2004. The commission shall issue a final report to the governor, the attorney general, and to the legislature not later than September 1, 2005.
(d) The members of the commission shall serve without compensation, but shall be reimbursed for expenses, including travel expenses, necessary for the performance of their official duties.
(e) The executive office on aging shall supply administrative support to the commission, and shall coordinate assistance to it from all appropriate state agencies.
Upon completion by the commission of the questionnaires provided in subsection (a)(1), the executive office on aging shall coordinate the transmission of the appropriate questionnaires to all licensed hospitals, nursing homes, medical schools, nursing schools, home care agencies, and hospice agencies in this State by the relevant licensing agencies.
(f) Within one hundred eighty days after the date of receipt of the appropriate questionnaire in accordance with subsection (e), every licensed hospital, nursing home, medical school, nursing school, home care agency, and hospice agency in this State shall conduct the appropriate self-study and transmit its completed questionnaire to the commission.
SECTION 8. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2003-2004, and the same sum, or so much thereof as may be necessary for fiscal year 2004-2005, to the executive office on aging to carry out the provisions of this Act. The sums appropriated shall be expended by the executive office on aging for the purposes of this Act.
SECTION 9. This Act shall take effect upon its approval; except that section 8 shall take effect on July 1, 2003.