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SSHB 54: "An Act providing an end-of-life option for terminally ill individuals; and providing for an effective date."

00                  SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 54                                                               
01 "An Act providing an end-of-life option for terminally ill individuals; and providing for                               
02 an effective date."                                                                                                     
03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
04    * Section 1. AS 11.41.115 is amended by adding a new subsection to read:                                           
05            (g)  In a prosecution under AS 11.41.100(a)(1) or 11.41.110(a)(1) or (2), it is a                            
06       defense that the defendant was performing an action allowed under AS 13.55.                                       
07    * Sec. 2. AS 11.41.120 is amended by adding a new subsection to read:                                              
08            (c)  In a prosecution under this section, it is a defense that the defendant was                             
09       performing an action allowed under AS 13.55.                                                                      
10    * Sec. 3. AS 13 is amended by adding a new chapter to read:                                                        
11                    Chapter 55. Voluntary Ending of Life.                                                              
12            Sec. 13.55.010. Individuals allowed to end life. (a) As provided in this                                   
13       chapter, a qualified individual may use medicine obtained from the qualified                                      
14       individual's attending physician to end the qualified individual's life.                                          
01            (b)  To be a qualified individual under (a) of this section, an individual must                              
02                 (1)  be a resident of this state;                                                                       
03                 (2)  be 18 years of age or older;                                                                       
04                 (3)  have been determined to be capable;                                                                
05                 (4)  have been determined to be suffering from a terminal disease; and                                  
06                 (5)  have voluntarily expressed the wish to die.                                                        
07            (c)  An individual does not qualify under (b) of this section solely because of                              
08       the individual's age or disability.                                                                               
09            Sec. 13.55.020. Attending physician and pharmacist authority. If a                                         
10 qualified individual's attending physician complies with this chapter, the attending                                    
11       physician may                                                                                                     
12 (1)  dispense medication directly to the qualified individual, including                                                
13 ancillary medications intended to facilitate the desired effect or minimize the qualified                               
14       individual's discomfort; or                                                                                       
15 (2)  write a prescription for the medication for the qualified individual                                               
16 and in person, by mail, or by electronic transmission deliver the prescription for the                                  
17 medication to a pharmacist, who may dispense the medication to the qualified                                            
18 individual, the attending physician, or an expressly identified agent of the qualified                                  
19       individual.                                                                                                       
20 Sec. 13.55.030. Requests for medication. (a) To receive medication under this                                         
21 chapter, a qualified individual shall make an oral request to the qualified individual's                                
22 attending physician. The qualified individual shall repeat the oral request to the                                      
23 qualified individual's attending physician not sooner than 15 days after making the                                     
24       initial oral request.                                                                                             
25 (b)  Notwithstanding (a) of this section, if a qualified individual is not                                              
26 physically able to speak, a qualified individual may make an oral request by whatever                                   
27 means the qualified individual can use to make the request, including electronic                                        
28       means, as long as the request is made in person.                                                                  
29 Sec. 13.55.040. Right to rescind request. When a qualified individual makes                                           
30 the second oral request under AS 13.55.030, the attending physician shall offer the                                     
31 qualified individual an opportunity to rescind the initial oral request. A qualified                                    
01 individual may rescind a request at any time and in any manner without regard to the                                    
02 qualified individual's mental state. An attending physician may not dispense or                                         
03 prescribe medication under this chapter unless the attending physician offers the                                       
04       qualified individual an opportunity to rescind the request.                                                       
05            Sec. 13.55.050. Attending physician duties and authority. (a) The attending                                
06       physician shall                                                                                                   
07                 (1)  make the initial determination of whether an individual has a                                      
08       terminal disease, is capable, and has made the request for medication voluntarily;                                
09                 (2)  request that the individual demonstrate that the individual is a                                   
10       resident of this state;                                                                                           
11                 (3)  inform the individual of the                                                                       
12                      (A)  individual's medical diagnosis;                                                               
13                      (B)  individual's prognosis;                                                                       
14                      (C)  potential risks associated with taking the medication;                                        
15                      (D)  probable result of taking the medication; and                                                 
16 (E)  feasible alternatives, including comfort care, hospice care,                                                       
17            and pain control;                                                                                            
18 (4)  refer the individual to a consulting physician for medical                                                         
19 confirmation of the diagnosis and for a determination that the individual is capable and                                
20       acting voluntarily;                                                                                               
21 (5)  refer the individual for counseling if appropriate under                                                           
22       AS 13.55.070;                                                                                                     
23                 (6)  recommend that the individual notify the individual's next of kin;                                 
24 (7)  counsel the individual about the importance of having another                                                      
25 person present when the individual takes the medication prescribed under this chapter                                   
26       and of not taking the medication in a public place;                                                               
27 (8)  inform the individual that the individual has an opportunity to                                                    
28 rescind the request at any time and in any manner and offer the individual an                                           
29 opportunity to rescind the request at the end of the 15-day waiting period under                                        
30       AS 13.55.030;                                                                                                     
31 (9)  immediately before dispensing or prescribing medication under this                                                 
01       chapter, verify that the individual is making an informed decision;                                               
02                 (10)  fulfill the requirements of AS 13.55.110 for medical record                                       
03       documentation;                                                                                                    
04                 (11)  ensure that all appropriate steps are carried out under this chapter                              
05       before dispensing or prescribing medication to enable a qualified individual to end the                           
06       qualified individual's life under this chapter; and                                                               
07 (12)  if the attending physician has a current federal Drug Enforcement                                                 
08 Administration registration number and complies with applicable regulations, dispense                                   
09 medication directly, including ancillary medications intended to facilitate the desired                                 
10 effect or minimize the qualified individual's discomfort, or, with the qualified                                        
11       individual's consent,                                                                                             
12 (A)  contact a pharmacist and inform the pharmacist of a                                                                
13            prescription for the medication; and                                                                         
14 (B)  deliver the written prescription in person, by mail, or by                                                         
15 electronic transmission to the pharmacist who will dispense the medication to                                           
16 the qualified individual, the attending physician, or an agent of the qualified                                         
17            individual who is expressly identified as an agent by the qualified individual.                              
18 (b)  Notwithstanding any other provision of law to the contrary, the attending                                          
19       physician may sign the qualified individual's death certificate.                                                  
20 Sec. 13.55.060. Confirmation by consulting physician. Before an individual                                            
21 becomes a qualified individual under this chapter, a consulting physician shall                                         
22 examine the individual and the individual's relevant medical records, confirm in                                        
23 writing the attending physician's diagnosis that the individual is suffering from a                                     
24 terminal disease, and verify that the individual is capable, is acting voluntarily, and                                 
25       has made an informed decision.                                                                                    
26 Sec. 13.55.070. Counseling referral. If the attending physician or the                                                
27 consulting physician determines that an individual may be suffering from a psychiatric                                  
28 or psychological disorder or depression causing impaired judgment, either physician                                     
29 shall refer the individual for counseling, and the attending physician may not dispense                                 
30 or prescribe medication until the person performing the counseling determines that the                                  
31 individual is not suffering from depression or a psychiatric or psychological disorder                                  
01       causing impaired judgment.                                                                                        
02 Sec. 13.55.080. Informed decision. An attending physician may not dispense                                            
03 or prescribe medication unless the qualified individual has made an informed decision.                                  
04 Immediately before dispensing or prescribing medication under this chapter, the                                         
05 attending physician shall verify that the qualified individual is making an informed                                    
06       decision.                                                                                                         
07            Sec. 13.55.090. Family notification. The attending physician may not deny a                                
08       qualified individual's request for medication if the qualified individual declines or is                          
09       unable to notify the qualified individual's next of kin.                                                          
10 Sec. 13.55.100. Waiting periods. An attending physician may not dispense                                              
11 medication or write a prescription for medication for a qualified individual unless at                                  
12 least 15 days have elapsed between the qualified individual's initial oral request and                                  
13       the writing of the prescription.                                                                                  
14 Sec. 13.55.110. Medical record documentation requirements. Before a                                                   
15 qualified individual receives medication under this chapter, the medical record of the                                  
16       qualified individual must contain                                                                                 
17 (1)  a record of all oral requests by a qualified individual for medication                                             
18       under this chapter;                                                                                               
19 (2)  the attending physician's diagnosis, prognosis, and determination                                                  
20 that the individual is capable, is acting voluntarily, and has made an informed                                         
21       decision;                                                                                                         
22 (3)  the consulting physician's diagnosis, prognosis, and verification                                                  
23 that the individual is capable, is acting voluntarily, and has made an informed                                         
24       decision;                                                                                                         
25 (4)  if counseling is performed, a report of the determinations made                                                    
26       during counseling and the outcome;                                                                                
27 (5)  a record of the attending physician's offer to the qualified                                                       
28 individual to rescind the qualified individual's request at the time of the qualified                                   
29       individual's second oral request under AS 13.55.030;                                                              
30 (6)  a note by the attending physician indicating that all requirements                                                 
31 under this chapter have been met and indicating the steps taken to carry out the                                        
01       request, including a statement describing the medication prescribed.                                              
02 Sec. 13.55.120. Effect on construction of wills and contracts. A provision in                                         
03 a will or a contract, whether written or oral, is not valid to the extent that the provision                            
04 requires, prohibits, imposes a condition on, or otherwise addresses whether an                                          
05       individual may make or rescind a request for medication under this chapter.                                       
06 Sec. 13.55.130. Immunity; effect of action on status of individuals. (a) A                                            
07 person is not subject to civil or criminal liability or professional disciplinary action,                               
08 including disciplinary action by a licensing authority, for participating or otherwise                                  
09 acting in good faith compliance with this chapter, including being present when a                                       
10 qualified individual takes the prescribed medication to end the qualified individual's                                  
11       life under this chapter.                                                                                          
12 (b)  A professional organization or association or health care provider may not                                         
13 subject a person to censure, discipline, suspension, loss of license, loss of privileges,                               
14 loss of membership, or other penalty for participating in or refusing to participate in                                 
15       good faith compliance with this chapter.                                                                          
16 (c)  A request by an individual for, or provision by an attending physician of,                                         
17 medication in good faith compliance with this chapter does not provide the sole basis                                   
18       for the appointment of a guardian or conservator of the individual.                                               
19 Sec. 13.55.140. No duty to participate. A health care provider is not under a                                         
20 duty, whether by contract, statute, or other legal requirement, to dispense medication,                                 
21 prescribe medication, or otherwise participate in the provision of medication to a                                      
22 qualified individual under this chapter. If a health care provider is unable or unwilling                               
23 to carry out a qualified individual's request under AS 13.55.030 and the qualified                                      
24 individual transfers the qualified individual's care to another health care provider, the                               
25 transferring health care provider shall provide to the other health care provider, at the                               
26 qualified individual's request, a copy of the qualified individual's relevant medical                                   
27       records.                                                                                                          
28 Sec. 13.55.150. Prohibitions. Notwithstanding another provision of law to the                                         
29 contrary, a health care provider may not prohibit another health care provider,                                         
30 including an employee, contractor, or lessee of the prohibiting health care provider,                                   
31 from participating in this chapter. However, a health care provider may prohibit                                        
01 another health care provider, including an employee, contractor, or lessee of the                                       
02 prohibiting health care provider, from allowing a patient of the prohibited health care                                 
03 provider to administer medication on the premises of the prohibiting health care                                        
04       provider if the medication was obtained under this chapter.                                                       
05 Sec. 13.55.160. Prohibition notice. To prohibit another health care provider                                          
06 from allowing a patient to administer medication on the premises of the prohibiting                                     
07 health care provider, the prohibiting health care provider shall notify the prohibited                                  
08       health care provider in writing about the prohibition.                                                            
09 Sec. 13.55.170. Sanctions. (a) Notwithstanding AS 13.55.130 and 13.55.140,                                            
10 if a health care provider violates a prohibition allowed under AS 13.55.150 after                                       
11 receiving a written notice under AS 13.55.160, the prohibiting health care provider                                     
12       may impose the following sanctions on the prohibited health care provider:                                        
13 (1)  loss of privileges, loss of membership, or other sanction provided                                                 
14 under the bylaws, policies, or procedures of the prohibiting health care provider if the                                
15 prohibited health care provider is a member of the prohibiting health care provider's                                   
16       medical staff;                                                                                                    
17 (2)  termination of a lease or another contract between the prohibiting                                                 
18 health care provider and the prohibited health care provider, or an imposition of                                       
19 nonmonetary remedies provided by the lease or other contract; in this paragraph,                                        
20 "remedies" does not include the loss or restriction of medical staff privileges or                                      
21       exclusion from a medical care provider panel.                                                                     
22 (b)  A prohibiting health care provider who imposes sanctions under (a) of this                                         
23 section shall follow all procedures that are provided under an applicable contract, the                                 
24       applicable terms of employment, or law for imposing the sanctions.                                                
25 (c)  Suspension or termination of staff membership or privileges under (a) of                                           
26       this section is not reportable under AS 08.64.336.                                                                
27 Sec. 13.55.180. Criminal penalties. (a) A person commits the crime of abuse                                           
28 of life-ending process if the person, with the intent to cause the individual's death or                                
29       knowing that the death of the individual is substantially certain to result,                                      
30 (1)  without the authorization of the individual, falsely makes,                                                        
31 completes, or alters a request for medication or conceals or destroys a rescission of the                               
01       individual's request; or                                                                                          
02 (2)  exerts undue influence on an individual to request medication for                                                  
03 the purpose of ending the individual's life or to destroy a rescission of the individual's                              
04 request; in this paragraph, "undue influence" means the control of an individual by a                                   
05 person who stands in a position of trust or confidence to exploit wrongfully the trust,                                 
06 dependency, or fear of the individual to gain control over the decision making of the                                   
07       individual.                                                                                                       
08            (b)  Abuse of life-ending process is a class A felony and may be punished as                                 
09       provided in AS 12.55.                                                                                             
10 (c)  This chapter does not prevent the imposition of criminal penalties that                                            
11       apply under another law for conduct that is inconsistent with this chapter.                                       
12 Sec. 13.55.190. Civil penalties. This chapter does not limit liability for civil                                      
13       damages resulting from a person's negligent conduct or intentional misconduct.                                    
14 Sec. 13.55.200. Claims for costs incurred. A governmental entity that incurs                                          
15 expenses that result from a qualified individual's ending the qualified individual's life                               
16 under this chapter in a public place may file a claim against the estate of the individual                              
17       to recover the costs and attorney fees related to enforcing the claim.                                            
18 Sec. 13.55.210. Duties of department. (a) The department shall annually                                               
19       review a sample of records maintained under this chapter.                                                         
20 (b)  After dispensing medication under this chapter, a health care provider shall                                       
21       file with the department a copy of the record of dispensing the medication.                                       
22 (c)  The department shall adopt regulations under AS 44.62 (Administrative                                              
23 Procedure Act) to facilitate the collection of information about compliance with this                                   
24 chapter. The information collected is not a public record under AS 40.25.110, and the                                   
25       department may not make the information available for inspection by the public.                                   
26 (d)  The department shall generate and make available to the public an annual                                           
27 statistical report of the information collected under (c) of this section. The statistical                              
28 report may not disclose information that is confidential under (c) of this section, but                                 
29 shall present the information in a manner that prevents the identification of particular                                
30       persons.                                                                                                          
31 (e)  In this section, "department" means the Department of Health and Social                                            
01       Services.                                                                                                         
02            Sec. 13.55.220. Attending physician qualifications. (a) To qualify as an                                   
03       attending physician under this chapter, a physician must                                                          
04                 (1)  have primary responsibility for the patient's health care;                                         
05                 (2)  have primary responsibility for the treatment of the patient's                                     
06       terminal illness; and                                                                                             
07                 (3)  routinely provide medical care to patients with advanced and                                       
08       terminal illnesses in the normal course of the physician's practice.                                              
09            (b)  Notwithstanding (a)(3) of this section, an attending physician's practice                               
10 may not be primarily or solely made up of individuals requesting medication under                                       
11       this chapter.                                                                                                     
12 Sec. 13.55.230. Construction of chapter. (a) This chapter may not be                                                  
13 construed to authorize or require a health care provider to provide health care contrary                                
14       to generally accepted health care standards applicable to the health care provider.                               
15 (b)  This chapter may not be construed to authorize a physician or another                                              
16 person to end an individual's life by lethal injection, mercy killing, or active                                        
17 euthanasia. An action allowed by this chapter is an affirmative defense to a criminal                                   
18 charge of homicide, murder, manslaughter, criminally negligent homicide, suicide,                                       
19       assisted suicide, mercy killing, or euthanasia under the law of this state.                                       
20 Sec. 13.55.240. Insurance or annuity policies; contracts. Notwithstanding                                             
21 AS 21.45.250 or another provision of law to the contrary, a person may not condition                                    
22 the sale, procurement, issuance, rate, delivery, issuance for delivery, or other aspect of                              
23 a life insurance policy, health insurance policy, accident insurance policy, or annuity                                 
24 policy, or another contract on the making or rescission of a request by a qualified                                     
25       individual for medication under this chapter.                                                                     
26 Sec. 13.55.250. Coordination with other law. A request for medication under                                           
27 this chapter is not an advance health care directive under AS 13.52, and AS 13.52 does                                  
28       not apply to an activity allowed by this chapter.                                                                 
29 Sec. 13.55.900. Definitions. In this chapter, unless the context indicates                                            
30       otherwise,                                                                                                        
31 (1)  "attending physician" means a physician who qualifies under                                                        
01       AS 13.55.220 as an attending physician;                                                                           
02 (2)  "capable" means that an individual has the ability to make and                                                     
03 communicate health care decisions to health care providers; in this paragraph,                                          
04 "communicate" includes communication through a person familiar with the                                                 
05       individual's manner of communicating if the person is available;                                                  
06                 (3)  "consulting physician" means a physician who is qualified by                                       
07       specialty or experience to make a professional diagnosis and prognosis about the                                  
08       individual's disease;                                                                                             
09                 (4)  "counseling" means consultation as necessary between a                                             
10 psychiatrist or psychologist and an individual to determine whether the individual is                                   
11 capable and not suffering from a psychiatric or psychological disorder or depression                                    
12       causing impaired judgment;                                                                                        
13 (5)  "health care provider" means a person or health care facility                                                      
14 licensed, certified, or otherwise authorized or permitted by the law of this state to                                   
15 administer health care or dispense medication in the ordinary course of business or                                     
16 practice of a profession; in this paragraph, "health care facility" means a private,                                    
17 municipal, or state hospital; independent diagnostic testing facility; primary care                                     
18 outpatient facility; skilled nursing facility; kidney disease treatment center, including                               
19 freestanding hemodialysis units; intermediate care facility; ambulatory surgical                                        
20 facility; Alaska Pioneers' Home or Alaska Veterans' Home administered by the                                            
21 department under AS 47.55; state correctional facility as defined in AS 33.30.901;                                      
22 private, municipal, or state facility employing one or more public health nurses; and                                   
23       long-term care facility;                                                                                          
24 (6)  "informed decision" means a decision that is based on an                                                           
25 appreciation of the relevant facts and that is made after the attending physician fully                                 
26       informs an individual of the                                                                                      
27                      (A)  individual's medical diagnosis;                                                               
28                      (B)  individual's prognosis;                                                                       
29 (C)  potential risks associated with taking the medication to be                                                        
30            prescribed;                                                                                                  
31 (D)  probable result of taking the medication to be prescribed;                                                         
01            and                                                                                                          
02                      (E)  feasible alternatives, including comfort care, hospice care,                                  
03            and pain control;                                                                                            
04                 (7)  "medication" means medication to end a qualified individual's life                                 
05       under this chapter;                                                                                               
06                 (8)  "physician" means a doctor of medicine or osteopathy who is                                        
07       licensed under AS 08.64 to practice medicine or osteopathy;                                                       
08                 (9)  "prescription" means a prescription for medication to end a                                        
09       qualified individual's life under this chapter;                                                                   
10 (10)  "prohibited health care provider" means a health care provider                                                    
11       that is prohibited by another health care provider under AS 13.55.150;                                            
12 (11)  "prohibiting health care provider" means a health care provider                                                   
13       that prohibits another health care provider under AS 13.55.150;                                                   
14 (12)  "qualified individual" means an individual who is qualified under                                                 
15       AS 13.55.010(b);                                                                                                  
16                 (13)  "request" means a request under AS 13.55.030;                                                     
17 (14)  "terminal disease" means an incurable and irreversible disease                                                    
18 that has been medically confirmed and that will, within reasonable medical judgment,                                    
19 produce death within six months; in this paragraph, "medically confirmed" means that                                    
20 a consulting physician who has examined the individual's relevant medical records has                                   
21       confirmed the medical opinion of the attending physician.                                                         
22    * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to                          
23 read:                                                                                                                   
24 APPLICABILITY. AS 13.55, enacted by sec. 3 of this Act, applies to a contract, will,                                    
25 or life, health, or accident insurance or annuity policy if the contract, will, or policy is                            
26 delivered or issued for delivery on or after the effective date of sec. 3 of this Act.                                  
27    * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to                          
28 read:                                                                                                                   
29 TRANSITION: REGULATIONS. The Department of Health and Social Services may                                               
30 adopt regulations authorized by AS 13.55, enacted by sec. 3 of this Act. The regulations take                           
31 effect under AS 44.62 (Administrative Procedure Act), but not before January 1, 2019.                                   
01    * Sec. 6. Section 5 of this Act takes effect immediately under AS 01.10.070(c).                                    
02    * Sec. 7. Except as provided in sec. 6 of this Act, this Act takes effect January 1, 2019.