HB 442: "An Act relating to the validity of advance health care directives, individual health care instructions, and do not resuscitate orders; relating to the revocation of advance health care directives; relating to do not resuscitate orders; relating to resuscitative measures; relating to the liability of health care providers and institutions; relating to an individual's capacity for making health care decisions; and providing for an effective date."
00 HOUSE BILL NO. 442 01 "An Act relating to the validity of advance health care directives, individual health care 02 instructions, and do not resuscitate orders; relating to the revocation of advance health 03 care directives; relating to do not resuscitate orders; relating to resuscitative measures; 04 relating to the liability of health care providers and institutions; relating to an 05 individual's capacity for making health care decisions; and providing for an effective 06 date." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 13.52.010(k) is amended to read: 09 (k) An advance health care directive, including an advance health care 10 directive that is made in compliance with the laws of another state, is valid for 11 purposes of this chapter if [TO THE EXTENT THAT] it complies with [THE LAWS 12 OF] this chapter, regardless of where or when it was executed or communicated 13 [STATE].
01 * Sec. 2. AS 13.52.010 is amended by adding a new subsection to read: 02 (l) Notwithstanding the sample form provided under AS 13.52.300, an 03 individual instruction that would be valid by itself under this chapter is valid even if 04 the individual instruction is contained in a writing that also contains a durable power 05 of attorney for health care and the durable power of attorney does not meet the 06 witnessing or other requirements of this chapter. 07 * Sec. 3. AS 13.52.020(c) is amended to read: 08 (c) In the case of mental illness, an advance health care directive may be 09 revoked in whole or in part at any time by the principal if the principal does not lack 10 capacity and is competent. A revocation is effective when a competent principal with 11 capacity communicates the revocation to a [THE ATTENDING] physician or other 12 health care provider. The [ATTENDING] physician or other health care provider shall 13 note the revocation on the principal's medical record. In the case of mental illness, the 14 authority of a named agent and an alternative agent named in the advance health care 15 directive continues in effect as long as the advance health care directive appointing the 16 agent is in effect or until the agent has withdrawn. For the purposes of this subsection, 17 a principal is not considered competent when 18 (1) it is the opinion of the court in a guardianship proceeding under 19 AS 13.26, the opinion of two physicians, at least one of whom is a psychiatrist, or the 20 opinion of a physician and a professional mental health clinician, that the principal is 21 not competent; or 22 (2) a court in a hearing under AS 47.30.735, 47.30.750, or 47.30.770 23 determines that the principal is gravely disabled; in this paragraph, "gravely disabled" 24 has the meaning given in AS 47.30.915(7)(B). 25 * Sec. 4. AS 13.52.060(d) is amended to read: 26 (d) Except as provided in (e), (f), and (i) [(e) AND (f)] of this section, a health 27 care provider, health care institution, or health care facility providing care to a patient 28 shall comply with 29 (1) an individual instruction of the patient and with a reasonable 30 interpretation of that instruction made by a person then authorized to make health care 31 decisions for the patient; and
01 (2) a health care decision for the patient made by a person then 02 authorized to make health care decisions for the patient to the same extent as if the 03 decision had been made by the patient while having capacity. 04 * Sec. 5. AS 13.52.060 is amended by adding a new subsection to read: 05 (i) Notwithstanding the exception in (e) of this section for do not resuscitate 06 orders, a health care provider may perform cardiopulmonary resuscitation or other 07 resuscitative measures on a patient even if there is a do not resuscitate order for the 08 patient if the condition requiring cardiopulmonary resuscitation or other resuscitative 09 measures is precipitated by complications arising out of medical services being 10 provided by the health care provider to the patient. 11 * Sec. 6. AS 13.52.065(a) is amended to read: 12 (a) A [AN ATTENDING] physician may issue a do not resuscitate order for a 13 patient of the physician. The physician shall document the grounds for the order in the 14 patient's medical file. 15 * Sec. 7. AS 13.52.065(f) is amended to read: 16 (f) A do not resuscitate order may not be made ineffective unless a physician 17 revokes the do not resuscitate order, a patient for whom the order is written and 18 who has capacity requests that the do not resuscitate order be revoked, or the 19 patient for whom the order is written is under 18 years of age and the parent or 20 guardian of the patient requests that the do not resuscitate order be revoked. Any 21 physician of a patient for whom [. A REQUEST TO REVOKE] a do not resuscitate 22 order is written may revoke the do not resuscitate [ONLY BE MADE BY THE 23 PERSON FOR WHOM THE] order [IS WRITTEN OR,] if the person for whom the 24 order is written requests that the physician revoke the do not resuscitate order or 25 if the physician reasonably believes that the patient does not have a qualifying 26 condition [IS UNDER 18 YEARS OF AGE, BY THE PARENT OR GUARDIAN OF 27 THE PERSON]. 28 * Sec. 8. AS 13.52.080(a) is amended to read: 29 (a) A [IF A] health care provider or health care institution that acts [MAKES 30 REASONABLE EFFORTS, WITH A LEVEL OF DILIGENCE APPROPRIATE TO 31 THE SERIOUSNESS AND URGENCY OF THE SITUATION, TO ENSURE THE
01 VALIDITY OF AN ADVANCE HEALTH CARE DIRECTIVE OR A PERSON'S 02 ASSUMPTION OF AUTHORITY TO MAKE HEALTH CARE DECISIONS FOR A 03 PATIENT, A HEALTH CARE PROVIDER OR INSTITUTION ACTING] in good 04 faith and in accordance with generally accepted health care standards applicable to the 05 health care provider or institution is not subject to civil or criminal liability or to 06 discipline for unprofessional conduct for 07 (1) providing health care information in good faith under 08 AS 13.52.070; 09 (2) complying with a health care decision of a person based on a good 10 faith [REASONABLE] belief that the person has authority to make a health care 11 decision for a patient, including a decision to withhold or withdraw health care; 12 (3) declining to comply with a health care decision of a person based 13 on a good faith [REASONABLE] belief that the person then lacked authority; 14 (4) complying with an advance health care directive and 15 [REASONABLY] assuming in good faith that the directive was valid when made and 16 has not been revoked or terminated; 17 (5) participating in the withholding or withdrawal of cardiopulmonary 18 resuscitation under the direction or with the authorization of a physician or upon 19 discovery of do not resuscitate identification upon an individual; 20 (6) causing or participating in providing cardiopulmonary resuscitation 21 or other life-sustaining procedures 22 (A) under AS 13.52.065(e) when an individual has made an 23 anatomical gift; [OR] 24 (B) because an individual has made a do not resuscitate order 25 ineffective under AS 13.52.065(f) or another provision of this chapter; 26 (C) because the patient is a woman of childbearing age and 27 AS 13.52.055 applies; or 28 (D) because the health care provider or institution has a 29 good faith belief that the condition requiring cardiopulmonary 30 resuscitation or other resuscitative measures is not precipitated by a 31 qualifying condition; or
01 (7) acting in good faith under the terms of this chapter or the law of 02 another state relating to anatomical gifts. 03 * Sec. 9. AS 13.52.100(c) is amended to read: 04 (c) An individual who is a qualified patient, including an individual for whom 05 a physician has issued a do not resuscitate order, has the right to make a decision 06 regarding the use of cardiopulmonary resuscitation and other life-sustaining 07 procedures as long as the individual is able to make the decision. Except as provided 08 by AS 13.52.060(i), if [IF] an individual who is a qualified patient, including an 09 individual for whom a physician has issued a do not resuscitate order, is not able to 10 make the decision, the protocol adopted under AS 13.52.065 for do not resuscitate 11 orders governs a decision regarding the use of cardiopulmonary resuscitation and other 12 life-sustaining procedures. 13 * Sec. 10. AS 13.52.150 is amended to read: 14 Sec. 13.52.150. Do not resuscitate orders and identification of other 15 jurisdictions. A do not resuscitate order or a do not resuscitate identification 16 executed, issued, or authorized in another state or a territory or possession of the 17 United States is valid [IN COMPLIANCE WITH THE LAW OF THAT 18 JURISDICTION IS RECOGNIZED] for the purposes of this chapter if it complies 19 with the laws of this state. A health care provider or health care institution may 20 presume, in the absence of actual notice to the contrary, that [. HOWEVER,] the 21 do not resuscitate order or the do not resuscitate identification complies [MAY BE 22 IMPLEMENTED ONLY TO THE EXTENT THAT THE IMPLEMENTATION 23 DOES NOT CONFLICT] with the laws of this state, regardless of where or when it 24 was executed, issued, or authorized, and that the patient is a qualified patient. 25 * Sec. 11. AS 13.52.390(7) is amended to read: 26 (7) "capacity," except in (9) of this section, means an individual's 27 ability to receive and evaluate information effectively and to make and effectively 28 [OR] communicate health care decisions [TO THE EXTENT NECESSARY TO 29 MAKE MENTAL HEALTH TREATMENT DECISIONS]; 30 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 CONTINUING EFFECT OF DO NOT RESUSCITATE ORDERS. A do not 02 resuscitate order made under AS 18.12 before January 1, 2005, continues in effect under 03 AS 13.52 unless the do not resuscitate order is made ineffective under AS 13.52.065(f), 04 amended by sec. 7 of this Act, or under another provision of AS 13.52. 05 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 DIRECTIONS TO REGULATIONS ATTORNEY. The regulations attorney in the 08 Department of Law shall 09 (1) replace in 7 AAC 16.010(d)(5) the reference to "an attending physician's 10 DNR order" with "a DNR order by a physician of the patient"; 11 (2) replace in 7 AAC 16.010(d)(5)(B) the reference to "attending physician" 12 with "physician of the patient"; 13 (3) delete in 7 AAC 16.010(g) "attending." 14 * Sec. 14. This Act takes effect immediately under AS 01.10.070(c).