POLST: "Self-Determination" or Imposed Death?

Ione Whitlock
Originally Posted on November 30, 2010

“POLST” is short for “Physician’s Orders for Life Sustaining Treatment.” It is a so-called “advance care planning” document; a page or two of medical instructions designed to follow a patient from one setting to another. In Oregon the form is still called POLST, but in other states it has taken on a variety of names such as POST, MOLST, or MOST.  It was devised for sick and elderly people, and lists treatments they might wish to forgo.  Any patient in a nursing home or a patient with an “advanced illness” would qualify.  Emergency teams and first responders are trained to use POLST.  When the patient’s condition worsens, or when the patient is transferred to a new location, the POLST form is reviewed and the patient is asked again whether he/she really wants antibiotics, “artificial” hydration/nutrition, and so forth.  The check marks on the page are instantly transformed into “physician’s orders” or “medical orders.”

By design or not, POLST is also an effective cost containment device.  Earlier this year POLST’s designers at the OHSU Center for Ethics in Health Care issued a Statement on the Fiscal Impact of the POLST Paradigm, maintaining that (emphasis added):  “an ideal health care system would honor individual preferences while allocating health care resources efficiently.”  The report went on to demonstrate that in numerous studies POLST increased efficiency by preventing “expensive hospitalizations.” [1]

The bioethicists who devised the POLST Paradigm hyped the documents’ use as tools for dignity and autonomy. [2] The documents do leave the door wide open to an “autonomous” decision to hasten death.  This is particularly true in Oregon and Washington where “comfort care” includes assisted suicide.

However, assisted suicide is only one concern.  POLST is more apt to facilitate imposed death

POLST owes its existence more to Oregon’s experiment with health care rationing than it does to the state’s assisted suicide experiment.  In fact, POLST grew out of an effort in the late 1980s by Portland area hospital ethics committees (not patients) who were considering how to limit “futile treatments.”  Eventually ethicists came up with a document that would discourage providers and patients from requesting treatments that were “not medically indicated” – i.e., treatments not considered appropriate by a panel of “experts.”[3]

Shortly after Oregon’s legalization of assisted suicide in 1994, the document was given a name that tested well in focus groups, emphasizing that these were orders “for life-sustaining treatment.” The document was fine-tuned under the direction of an ethicist mentored by Mark Siegler of the MacLean Center for Clinical Medical Ethics at the University of Chicago (where Valerie Jarrett’s father was senior scholar).  To assist in testing and implementing the document, the bioethicists engaged the help of Oregon Health Decisions — a group of community organizers and left-leaning activists who had formed Oregon’s “citizen parliaments” that created Oregon’s infamous rationing lists.

Perhaps it is no surprise that George Soros’s Project on Death in America was one of the earliest funders of the POLST venture at OHSU.  Among other funders were the Greenwall Foundation, the Robert Wood Johnson Foundation, and Nathan Cummings Foundation.  At the time, the Cummings Foundation was also funding Ezekiel and Linda Emanuel for a study of caregivers’ burdens.  The Greenwall Foundation was known for its funding of bioethicists who favored “death with dignity.”  Later, in 2008, Greenwall would also grant $40,000 toward a study on how to determine which Alzheimer’s patients should be allowed to vote. Recipient of the grant was Charles Sabatino – director of the American Bar Association’s Commission on Law and Aging, and POLST activist.

Following is a sketch of what POLST is and is not:

POLST is not a traditional “legal transaction”

• Although a POLST form looks like a contract, usually displaying signatures of patient and provider, it is not a traditional legal transaction.  Charles Sabatino says POLST reflects a “paradigm shift from [the traditional] legal transactional model to a communications model.”[4]
• POLST does not require a physician’s signature; nor does it require the signature of the patient or proxy.  The POLST Paradigm Task Force “recommends” that POLST require a patient/proxy signature, but the signature is definitely optional, depending upon regional requirements.[5]

More like “a process”

• POLST is not so much a document as it is “a process.” One advisor to the Senate HELP committee made the pitch for POLST last summer:  “The process of completing a POLST form is [not only] a values clarification process, but one that results in specific and explicit medical orders” [6]
• “The process” is repetitive and often conducted when the patient and proxy are under duress, as the patient’s condition changes.  In many states, the form has multiple lines for multiple interviews. “The process of goal clarification requires intense, time-consuming, face-to-face conversations with patients and/or family members” triggered by what the providers perceive should be “realistic options” for care.[7]
• “The process” can be initiated by someone other than a physician, and that is usually the case.  According to POLST advocates, “nurses, social workers, admissions coordinators, and nursing home administrators are typically the front-line implementers of POLST.  They facilitate POLST discussions at the time of admission (or sometime later), record patient preferences, and then refer the form to the physician for signature.”[8] This means that on one day a Catholic physician might counsel his patient to request hydration, only to find that, on the next day, an admissions coordinator or social worker reviewed the orders with the patient (or proxy) to “clarify” away the previous day’s decision.

What triggers “the process”?

• The definition of an eligible candidate varies widely.  A recent National POLST Paradigm report suggested POLST is triggered by “advanced illness.”
• In some states, health care professionals are trained to identify prospects by asking themselves the question, “would you be surprised to see this person dead in a year?” (a prompt that was devised by a physician at Franciscan Health System West — one of the health systems that participated in Donald Berwick’s “Improving Care at the End of Life Collaborative ).

Are the documents legal in every state?

• The documents’ legal status vary dramatically from state to state.[9] In Oregon, for example, POLST couldn’t move forward without passage of liberalized surrogacy laws.  Even after that, the task force decided to bypass the legislature to gain full implementation, and so pushed for a liberalized rule from the Oregon Board of Medical Examiners.  The new rule provided “both a mandate and a legal shield” for first responders, who would be key to implementing POLST.[10] Susan Tolle, MD, of the POLST Paradigm Task Force warned “the POLST form functions within the context of Oregon’s liberal advance directives law and would require modification for use in some other states (for example, those without surrogacy provisions)”[11]

  In Washington State, the advance directives statute had prohibited  surrogate decision-makers from making Do-Not-Resuscitate (DNR) decisions for a patient. With pilot-testing already in progress, POLST activists stepped in and pressured the state’s Department of Social and Health Services (DSHS) to reinterpret the statute.  With the help of local media and “frightening articles in major media,” DSHS revised their interpretation and approved POLST.[12]

• Though the applicable laws and regulations vary dramatically from one state to the next on issues such as surrogacy, assisted suicide, scope of practice for first responders, POLST activists are working toward making the documents “fully transportable,” i.e., forcing states to honor out-of-state documents.

Goal-oriented process. Whose goal?

The problem with POLST is not that it allows patients to hasten their own death.  The problem is that POLST facilitates imposed death.  It creates an illusion of “self-determination” while fostering consensus ethics.  It is vague as a legal document, and the iterative, goal-oriented process is designed to reduce the use of what some ethicists call “inappropriate” treatments, but what others may call ordinary and life-enhancing.  The documents may be used by a wide range of health care workers, many of whom do not know the patient personally.  In short, the POLST process rigs the system in favor of pressuring the patient and family.

Although not writing about POLST specifically, bioethicist Wesley J. Smith has illustrated the effect of this sort of process:

I hear often from people who believe they or their aged/ill/disabled loved ones are being pressured into refusing treatment–usually not by being brow beaten or yelled at–but from a constant, drip, drip, drip of conversation after conversation after conversation, which only end when the patient agrees to what the doctor or ethics committee want.  In this phenomenon of the never-ending-conversation, people often perceive an attempt to wear them down by sheer exhaustion into acquiescing.[13]

Smith’s “drip, drip, drip” sums up the POLST process rather well.

[1] The National POLST Paradigm Task Force., Statement on the Fiscal Impact of the POLST Paradigm (Portland, OR: Center for Ethics in Health Care, Oregon Health & Science University, 2010).

[2] Lewis-Husk, Lee, and Michael J. Garland. The First Decade, ed. Susan W. Tolle and Gary T. Chiodo. Portland, OR: The Center for Ethics in Health Care, Oregon Health Sciences University, 1999. Also: Myra J. Christopher and Jeri Spann, “Oregon Health Decisions: Lighting the Way to Common Ground,” State Initiatives in End-of-Life Care, October, 1998.

[3] Patrick M. Dunn and others, “A Method to Communicate Patient Preferences About Medically Indicated Life-Sustaining Treatment in the out-of-Hospital Setting,” J Am Geriatr Soc 44, no. 7 (1996).

[4] Charles Sabatino and Myra J. Christopher, “Advance Planning: From a Transactional Model to a Communications Approach (Slide Presentation),” in The Changing Face of Health Decisions (American Bar Association, 2008).

[5] Oregon POLST Task Force, “Guidance for Oregon’s Health Care Professionals,” (Portland, OR: Center for Ethics in Health Care at Oregon Health & Science University, 2009).

[6] Diane E. Meier and Larry Beresford, “POLST Offers Next Stage in Honoring Patient Preferences,” J Palliat Med 12, no. 4 (2009).

[7] Ibid.

[8] Myra J. Christopher and Jeri Spann, “Implementing End-of-Life Treatment Preferences across Clinical Settings,” State Initiatives in End-of-Life Care, April 1999.

[9] Susan E. Hickman and others, “The POLST (Physician Orders for Life-Sustaining Treatment) Paradigm to Improve End-of-Life Care: Potential State Legal Barriers to Implementation,” J. Law Med. Ethics 36, no. 1 (2008).

[10] Christopher and Spann, “Implementing End-of-Life Treatment Preferences across Clinical Settings.”,  State Initiatives in End-of-Life Care, April 1999.

[11] Susan W. Tolle, “Care of the Dying: Clinical and Financial Lessons from the Oregon Experience,” Ann Intern Med 128, no. 7 (1998). [subscription required]

[12] Judy L. Meyers and Rose Mary Volbrecht, “The Story of the POLST Form: How a Grassroots Effort Can Make a Difference in End-of-Life Care,” DNA Reporter (Delaware Nurses Association) 30, no. 2 (2005), pg. 11.

[13] Wesley J. Smith, “”Obamacare: Column Illustrates the Potential for ‘Never Ending Conversation’ End of Life Counseling Pressure,” in Second Hand Smoke (2010).

End-of-life “conversations” began in Bush years, but Rockefeller wrote the bill

Yes, the Bush administration did introduce a “discussion” benefit as part of the 2003 Medicare Prescription Drug, Improvement, and Modernization Act (also known as the Prescription Drug Bill, or MMA -- signed into law as PL 108-173). However, there was no end-of-life counseling involved in the discussion.  The session was a one-time only “initial preventive physical examination” now known as the "Welcome to Medicare" exam.  The consultation was to consist of “a physical examination (including measurement of height, weight, and blood pressure, and an electrocardiogram) with the goal of health promotion and disease….”

End-of-life counseling did not come into the picture until 2008 when a bill sponsored by Charles Rangel (D-NY) added advance care planning to the “Welcome to Medicare” exam.  That “benefit” (passed in 2008 and available in 2009 as the MIPPA benefit) paid the doctor to talk to seniors one time to encourage them to make end-of-life plans.

But the social planners pushing for Obamacare feared that one benefit didn’t go far enough in terms of cost containment. In introducing further legislation later in 2009 (S.1150), Sen. Jay Rockefeller (D-WV) took credit for creating the MIPPA benefit, but complained that very few patients chose this end-of-life counseling:

[The 2008] Medicare Improvements for Patients and Providers Act [MIPPA], PL 110– 275, took a significant step forward toward improving advance care planning. MIPPA included a provision that I authored, requiring physicians to provide an advance care planning consultation as part of the Welcome to Medicare physical exam. Unfortunately, less than 10 percent of new enrollees use the Welcome to Medicare visit. The MIPPA provision also does not address the advance care planning needs of existing Medicare enrollees.

This lack of counseling was costing the government money.  Rockefeller worried that “80 percent of all deaths occur in hospitals—the most costly setting to deliver care.”

His answer was to expand the incentive via S.1150, portions of which later became section 1233 of the Obamacare legislation and were dropped after public outcry. S.1150 featured multiple counseling sessions and enabled what Charles Lane of the Washington Post called the “’formulation’ of a plug-pulling order.” Rockefeller said in introducing the new, improved benefits as part of S.1150

The legislation . . . establishes physician payment under Medicare, Medicaid, and CHIP for vital patient advance care planning conversations. It provides help in documenting decisions from these conversations in the form of advance directives and in the form of actionable orders for life sustaining treatment. It also takes steps to address the problem of accessing advance directives when needed, including state grants for electronic registries.

While it may not duplicate the now deleted section 1233 of the Obamacare legislation, this newest CMS rule now enforces more intrusive end of life counseling.  Instead of the single “Welcome to Medicare” benefit Rockefeller found so inadequate in 2008, the new rule pays providers to conduct such  “conversations” repetitively (as in S.1150) only now they will occur during the annual “wellness” visits like those established in Obamacare Section 1233.

Ultimately, S.1150, and Section 1233 of the Obamacare legislation and this new CMS ruling all share an intent that is even more insidious than that found in the original MIPPA “Welcome to Medicare” benefit.

posted 12/28/10; IW

New CMS Rule Establishes
"Voluntary" End-of-Life Consultations

Americans weary of "voluntary" TSA pat-downs and full-body scans will be delighted to learn that "voluntary" end-of-life consultations are in their future as well.

The US Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) has made it official: The "advance care planning" funding that would incentivize "voluntary" end-of-life counseling will be included in Obamacare. This funding was part of what was in the controversial "Section 1233" earlier this year. See more extensive discussion in our alert below, posted last week.

The new CMS rule as printed in the Federal Register (Vol. 75, No. 228, Book 1) online at
http://tinyurl.com/2wn5vz4
Discussion on "voluntary advance care planning" begins on page 73406.

posted 12/1/10 by IW

Heads up:
Section 1233 again.

Last March Nancy Pelosi told the American people that she and her colleagues "have to pass the bill so you can find out what’s in it.”  Americans had already seen one part of the proposed healthcare legislation, and didn't like what they saw: The infamous Section 1233 of HR 3200 would have federalized “voluntary” end-of-life “consultations.”  The section was eventually dropped.

It appears that Section 1233 is still alive and kicking.

The “advance care planning” portion is in a rule from US Department of Health & Human Services, Centers for Medicare & Medicaid (CMS) here:
http://www.ofr.gov/OFRUpload/OFRData/2010-27969_PI.pdf [NOTE: link went inactive following 11/29. As of 12/1 the document is available at http://tinyurl.com/3akk88e]

The POLST part is included in pending legislation, HR 5795 “Personalize Your Care Act of 2010."  See http://tinyurl.com/24u5q37  which is a link to all the information about this bill and the actual text as a pdf at
http://tinyurl.com/2a9rudq

CMS posted the preliminary rules on Election Day; formal rules are to be published in the Federal Register on November 29.  The rules include a discussion of the definition of “voluntary,” although some of the more nuanced meanings of “voluntary” may have been missed (just ask any recipient of a “voluntary” TSA pat-down).  The rule also includes a discussion of signature requirements for “orders” versus “requisitions” in context of diagnostic tests. The American Bar Association’s Charles Sabatino, who supported Section 1233, calls the new rules “a big step forward.”

Congressman Earl Blumenauer (D-OR) introduced HR 5795 this past July.  It is a revised version of the legislation that he and Senator Rockefeller (D-WV) introduced last year.  Blumenauer introduced HR 2911, and Rockefeller introduced S. 1150 in 2009, both titled “Advance Planning and Compassionate Care Act of 2009”.  Both bills included:

• Section 211 (Advance Care Planning) was almost identical to Section 1233 of HR. 3200 – the section that was dropped from the final bill signed in March.
• Section 112, which would have provided funding to expand POLST.

It is Section 112 of the Rockefeller and Blumenauer bills (S 1150 and HR 2911) that is now Section 3 of HR 5795. Portability of advance directives and standards for electronic health records are also addressed in HR 5795.

Blumenauer is the congressman most often associated with POLST  He is, incidentally, an advocate of legalized assisted suicide, and Rockefeller has spent decades trying to push through legislation on behalf of the organizations that evolved from the Euthanasia Society of America.

Shortly before the election, Blumenauer told a radical pro-assisted suicide group that he had reintroduced what had been known as the "death panel" legislation. He complained that Section 1233 had been dropped due to “organized opposition” from “all of the Sarah-Palin-Fox-News-tin-foil-hat” people, but “it’s not stopping us from moving forward.”  Over the summer he had reintroduced the bill with a new name:  the “Personalize Your Care Act of 2010” (HR 5795). 

“Personalize” leaves the impression that this bill might put medical treatment decisions back in the hands of the individual,  keeping the discussion between patient and physician.  It implies that the patient might as easily “choose life” as to forgo treatment. This is pretty slick marketing, considering it is coming from the same Oregon liberals who pushed not only assisted suicide, but rationing for “equitable distribution of resources” for “the common good.” The bioethicists at Oregon Health & Science University (OHSU) who devised the “citizen parliaments” that gave Oregon its rationing scheme are some of the same bioethicists who put the fine tuning on POLST.

Blumenauer, in his remarks to the Oregon activists, went on to say that Oregon leads the way in health reform.  Well, yes.  Oregon health care is infamous for two things:  assisted suicide, and rationing.  Blumenauer’s bill would impose both on the whole country.

Note: For more information on the history and implications of POLST, see "POLST: 'Self-Determination' or Imposed Death?" in LifeTree's Resources section.

posted 11/24/10 by IW
revised 12/2/10 by IW

Repackaging Death as Life –
The Third Path to Imposed Death

By Elizabeth D. Wickham, Ph.D.
Executive Director, LifeTree, Inc
Copyright, 2010, EDW

Presented at the 2nd Annual Life Conference
Raleigh, North Carolina, October 23, 2010

History 
   
Let’s look to the first organized euthanasia movement in America which emerged in the 1930s and was known as the Euthanasia Society of America.  Its strategy was first to secure legalization of passive euthanasia as a way to prepare public opinion to accept active euthanasia, commonly known as physician assisted suicide.   But there were conflicts within the movement and by 1980 there came to be two distinct wings when the more militant branch split off.   The militants call themselves the Hemlock Society, Death with Dignity and Compassion and Choices.   This wing advocates for physician assisted suicide.  

The more nuanced wing, which is a continuation of the Euthanasia Society of America, gave itself more beneficent-sounding names which included Society for the Right to Die and Concern for Dying in the 70s and 80s, Choice in Dying in the early 90s, Partnership for Caring in the late 90s and Last Acts Partnership in the early 2000s.   This wing claimed to be against physician assisted suicide.   An important piece of the puzzle is that Ira Byock, then president of the American Academy for Hospice and Palliative Medicine, joined with Choice in Dying in 1998 to help form Partnership for Caring. read full article >>