Report Title:
Hawaii Improving End-of-Life Care Act of 2003
Description:
Provides that physicians, nurses, pharmacists, and physician assistants shall not be disciplined or criminally prosecuted for providing pain management pursuant to acceptable guidelines. Establishes an Advisory Commission on Hawaii Palliative Care and Pain Management to study, evaluate, and make recommendations regarding palliative care in Hawaii.
THE SENATE |
S.B. NO. |
751 |
TWENTY-SECOND LEGISLATURE, 2003 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO HEALTH.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature declares its intent to devote the necessary resources and adopt the policies most appropriate to achieve the goal that all those in Hawaii will consistently have access to the highest possible quality of palliative care and pain relief.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
PALLIATIVE care
§ -1 Title. This chapter shall be known and may be cited as the "Hawaii Improving End-of-Life Care Act of 2003."
§ -2 Definitions. As used in this chapter:
"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 that has developed practice or care guidelines based on original research or the review of existing research and expert opinion. If there are no currently accepted guidelines available, rules, policies, guidelines, or regulations issued by a board may serve the function of such guidelines for purposes of this chapter. Such board rules, policies, guidelines or regulations must conform to the intent of this chapter. Guidelines established primarily for purposes of coverage, payment, or reimbursement do not qualify as "accepted guidelines" when offered to limit treatment options otherwise covered within this chapter. For such a guideline to be an "accepted guideline" for the purposes of this chapter, it shall not be inconsistent with section -4.
"Board" means the board of medical examiners, board of nursing, and board of pharmacy.
"Clinical expert" means a person 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 which includes both informal and formal, and both remedial and punitive actions taken by a board against a licensed health care professional.
"Licensed health care professional" means a physician, nurse, pharmacist, and physician assistant, licensed to practice in the State.
"Nurse" means a licensee of the board of nursing, pursuant to chapter 457.
"Pharmacist" means a licensee of the board of pharmacy, pursuant to chapter 461.
"Physician" means a physician licensee of the board of medical examiners, pursuant to chapter 453.
"Physician assistant" means a physician assistant licensee of the board of medical examiners, pursuant to chapter 453.
"Therapeutic purpose" means the use of pharmaceutical and non-pharmaceutical medical treatment that conforms substantially to accepted guidelines for pain management.
§ -3 Accepted guideline followed; no disciplinary action or criminal prosecution. (a) Neither disciplinary action nor criminal prosecution shall be brought against a licensed health care professional for the prescribing, dispensing, or administering of medical treatment for the therapeutic purpose of relieving pain who can demonstrate by reference to an accepted guideline that the licensed health care professional's practice substantially complied within that guideline and with the standards of practice identified in this section.
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 but which should not be an accepted guideline because it is inconsistent with section -4 may be made by clinical expert testimony.
(b) In the event that a disciplinary action or criminal prosecution is pursued, the board or prosecuting authority shall produce clinical expert testimony supporting the finding or charge of violation of disciplinary standards or other legal requirements on the part of the licensed health care professional. Evidence of noncompliance with an accepted guideline is not sufficient alone to support disciplinary or criminal action.
(c) 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 regulations, rules, policies, or guidelines establishing standards and procedures for the application of this chapter to the care and treatment of chemically dependent individuals. The board may by rule establish that any particular guideline otherwise qualified to be an accepted guideline should not be an accepted guideline on the grounds that it is inconsistent with the provisions of section -4.
(d) A pharmacist shall be immune from any civil or criminal liability and from professional discipline for any act 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.
§ -4 Acts still subject to prohibition. (a) Nothing in this chapter shall be construed as expanding the authorized scope of practice of any licensed health care professional.
(b) Nothing in this chapter shall prohibit 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 the patient, the basis for the clinical diagnosis of the patient, and the treatment plan for the 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, part II, schedules I through V;
(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 chapter 329;
(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 such use may increase the risk of death, so long as it is not also furnished for the purpose of causing, or the purpose of assisting in causing, death, for any reason.
§ -5 Notification by board. The board shall make reasonable efforts to notify licensed health care professionals under its jurisdiction of the existence of this chapter. 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 chapter."
SECTION 3. (a) There is established an advisory commission on Hawaii palliative care and pain management within the executive office on aging. The duties, responsibilities, and obligations of the commission shall be to:
(1) Prepare, within one hundred twenty days of its appointment, separate questionnaires for Hawaii hospitals, nursing homes, medical schools, nursing schools designed to structure and facilitate self-studies by each of these institutions, and home care and hospice agencies. 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 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 the following members:
(1) Five members appointed by the governor, to include one physician chosen to represent the University of Hawaii, John A. Burns school of medicine, 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 a 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 president of the senate, to include 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, to include 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, who shall be exempt from chapters 76 and 89, Hawaii Revised Statutes. To the extent authorized by the commission, the executive director shall employ additional staff members, who shall be exempt from chapters 76 and 89, Hawaii Revised Statutes.
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 receive no salary or compensation as members of the commission, but shall be reimbursed for expenses of travel, meals, and lodging while in the performance of their duties as members of the commission.
(e) The executive office on aging shall provide 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 pursuant to subsection (a)(1), the executive office on aging shall coordinate transmission of the appropriate questionnaires to all licensed Hawaii hospitals, nursing homes, nursing schools, and the University of Hawaii, John A. Burns school of medicine, by the relevant licensing agencies.
(f) Within one-hundred eighty days after the date on which the appropriate questionnaire is transmitted to it in accordance with subsection (e), each licensed Hawaii hospital, nursing home, medical school, and nursing school shall conduct the appropriate self-study and transmit its completed questionnaire to the commission.
SECTION 4. 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, for the advisory commission on Hawaii palliative care and pain management to perform its duties and obligations as provided in this Act. The sums appropriated by this section shall be expended by the executive office on aging for the purposes of this Act.
SECTION 5. This Act shall take effect on July 1, 2003.
INTRODUCED BY: |
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