Legislature(1997 - 1998)
04/25/1997 01:06 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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CSSSSB 38(JUD) - ANATOMICAL GIFTS, LIVING WILLS & DNR ORDER CHAIRMAN GREEN announced the next order of business was CS for Sponsor Substitute for Senate Bill No. 38(JUD), "An Act relating to anatomical gifts, living wills, and do not resuscitate orders." Number 2010 JOE AMBROSE, Legislative Assistant to Senator Robin Taylor, presented the sponsor statement. He advised that there was a committee substitute, which he offered to explain after presenting the gist of the bill. MR. AMBROSE said the bill clarifies the existing statute dealing with living wills; it also adds a provision by which those who execute a living will can choose to become an organ donor or tissue donor. By adding this provision to the statutory language of a living will, loved ones and health care professionals would be fully informed of the wishes of family members and patients. Mr. Ambrose pointed out that we live in a technological age in which the need for tissue and organ donation is much greater than the supply. While it is not a legitimate function of government to dictate whether a person should become an organ or tissue donor, it is wise to facilitate the process. MR. AMBROSE explained that the bill would also instruct the Division of Motor Vehicles to indicate on a driver's license not only that the bearer had elected to become an organ donor but also that the bearer had a living will. Other than nominal expenses, the legislation should cost little to enforce and may become invaluable if it increases Alaskans' participation in organ and tissue donor programs. MR. AMBROSE advised that they had contacted the Center for Transplant Services at the University of Washington hospital to determine the scope of transplants involving Alaskans. Since 1989, 19 Alaskans have received (indisc.--papers over microphone) transplants through that facility. Twelve have received liver transplants, and one received both a kidney and a pancreas. As of January 24th of this year, that one facility had a wait-list of 20 Alaskans needing kidney transplants, 11 seeking donated livers and one waiting for a donated pancreas. The United Network for Organ Sharing, the national clearinghouse, had 68 Alaskans on their wait- list. Since 1988, that same organization documented 207 Alaskans who have received donor organs. Mr. Ambrose offered to address the committee substitute. REPRESENTATIVE JAMES made a motion to accept the committee substitute, version 0-LS0183\L, Bannister, 4/4/97, as a work draft. There being no objection, that version was before the committee. Number 2253 CHAIRMAN GREEN asked: If this is enacted and a person is somewhere else in the state or in another state, how would the organs get to where they need to be? MR. AMBROSE suggested that a representative from Life Alaska Transplant, Incorporated, explain how that happens. TAPE 97-64, SIDE A Number 0006 MR. AMBROSE said he understands there is reciprocity with some states; they have been asked to look at that larger issue for possible future legislation. Right now, the basic problem is that two separate statutes contain provisions that should relate to each other but do not. The bill attempts to correct this. Mr. Ambrose said they have worked with Department of Health and Social Services personnel, especially those providing emergency medical technician (EMT) services, for whom this becomes critical. MR. AMBROSE referred to page 4 of the proposed committee substitute and said there is an inherent conflict in this process. Most people fill out a living will to inform health care providers that they do not want to be resuscitated in certain situations, and that is a living will's generally accepted purpose. However, an organ donation for transplant must occur almost immediately after death. Therefore, a terminal patient who wants to be an organ donor but who has a "do not resuscitate" (DNR) order presents a conflict. MR. AMBROSE read the new language on page 4, beginning at line 6, and indicated this provision in the living will addresses the problem. Referring to line 8, he said the phrase "hospital setting" is there because if a person is in a medical setting, these evaluations can take place. He noted that a valid DNR order is issued by a doctor; it is not something the individual fills out. He explained, "There are folks who have certain conditions, and if they're involved in an accident, for instance, there is notification on their driver's license that the doctor has issued a `do not resuscitate' order. We don't want to put our EMTs in a situation that they have to disregard that, okay? So we want that to happen in the hospital setting." MR. AMBROSE mentioned the language relating to 71 years of age and deferred to the representative from Life Alaska Transplant, Incorporated, to explain where that came from. He commented, "That worked itself in during some consultation between the organ donor groups and the drafting attorney." Number 0288 MR. AMBROSE referred to page 6, beginning at line 14, and explained, "We reiterate the provision as far as the hospital setting, and this is for the protection of the EMTs. The rest of that, through page 8 at line 11, is language that basically involves the revocation of `do not resuscitate' orders and things that apply to EMTs; and there is someone from the division that can walk you through that." MR. AMBROSE referred to page 6, beginning at line 27 and continuing to page 7. He said the Department of Law recommends deletion of subsections (e)(2) and (e)(4); the sponsor agrees. Mr. Ambrose advised that those two subsections have to do with guardians and powers of attorney. MR. AMBROSE reported that the remaining language in the proposed committee substitute, beginning with Section 16, is from the original bill. Number 0392 CHAIRMAN GREEN asked whether by deleting subsections (e)(2) and (e)(4), guardianship of an individual may take precedence over the subsequent signing of an organ donation form or living will. He asked what the priorities are for these various documents. MR. AMBROSE replied that the way this provision reads, a physician may not revoke a DNR order at the request of a person who did not ask for it in the first place. CHAIRMAN GREEN posed a scenario where a person is mentally incapacitated but has organs from the neck down that function fine. He asked whether there is a potential for conflict. MR. AMBROSE offered to call someone from the Department of Law to explain the recommendation. CHAIRMAN GREEN said he would appreciate that. He asked Karyn Denton whether she had information to add to the discussion. Number 0551 KARYN DENTON, Associate Director, LifeCenter Northwest, testified via teleconference from Seattle, Washington. She acknowledged that she had heard the conversation and stated, "But it seems to be more an order of priority in terms of the consent processes related to the living will part, rather than the actual part that we (indisc.), an individual being an organ donor." CHAIRMAN GREEN said that earlier, a question had been asked about what happens if someone is in a less-than-desirable setting, rather than in a hospital where the organ can be easily extracted and preserved until use. He asked whether there is a precedent or something in the living will that would say, for example, that costs would be paid for out of the deceased person's estate or by the state. MS. DENTON replied, "No, absolutely not." She explained that when a patient is found to be suitable for a solid organ donation and has indicated that is their wish, those costs are borne by the organ recovery process and system. There is no charge to the family's estate nor to the state where the deceased resided. To her knowledge, in 15 years of organ recovery within their service area, that had never been a problem. Number 0670 REPRESENTATIVE BERKOWITZ asked Ms. Denton to explain the provision regarding 71 years of age. MS. DENTON said the age criteria for solid organs ranges from zero to 70 years, although they have evaluated patients beyond that. There seems to be concern about using the standard zero-to-70 warning because of the question of what to do if a person is closer to 71 years of age than 70. As she recalled it, the recommendation was made to her organization to simply raise the upper age limit to 71 years so that 70-to-71-year-old individuals are included. She stated, "That age, I would say, encompasses the most likelihood of the older individual who ..., because of the criteria used to evaluate organs, ... would be found to be a suitable organ transplant candidate." She deferred to the director of LifeCenter Northwest to address that. Number 0757 EDWARD HUPPMAN, JR., Executive Director, LifeCenter Northwest, testified via teleconference from Seattle, Washington. He stated that the age criteria was a concern of someone from Life Alaska Transplant, Incorporated. Noting that the industry standard is around age 70, he said an unlimited age criteria would create more confusion for, and an excess burden on, EMTs in the field who found a DNR order and an organ donation identification for someone beyond what is considered a normal age for organ donation. They want to avoid having the bill become a major problem for emergency medical service (EMS) personnel with regard to people beyond that age limit, whom his organization would not consider organ donors. Number 0823 REPRESENTATIVE BERKOWITZ responded, "You put me in an awkward position, because I don't want to tell people over the age of 70 that their bodies have little value. It seemed to me that it's more of a policy question for you to determine, since you're the folks who want the organs." He stated that he would rather not put the 71-year-old limit in the legislation. He believes that should be up to individual evaluation. MR. HUPPMAN replied, "Then we totally agree. I have no problem with having that age criteria removed." Number 0865 REPRESENTATIVE BUNDE commented that in other committees where he had served, there had been extensive discussions about organ and tissue donation. In every case, it had been strongly affirmed that this was at the expense of the recipient, not the donor. As to the 71-year-old limit, he acknowledged the dilemma for an EMT of a "do not resuscitate" order for an organ donor; if EMTs were uncertain how to proceed, the age criteria would at least indicate that the person was unlikely to be an organ donor and, therefore, the EMTs could abide by the DNR directive. He asked: Are you aware of anyone over the age of 71 having been an organ donor? MR. HUPPMAN replied that there are very few occasions where that has happened. He knew of one or two where, because of demand for organs, they had extended their criteria for considering people beyond age 70. However, that is only in the rarest of instances. They try to evaluate an organ more from a physiological standpoint than a chronological one. He said they have had to put a qualifier somewhere, and age 70 seems to be the "high-end limit" for consideration. He advised that those people are evaluated very, very carefully. Number 0996 CHAIRMAN GREEN questioned Mr. Huppman's answer to Representative Berkowitz indicating he had no problem with removing the 71-year restriction. He noted that Mr. Huppman had just mentioned having to put some age limit in there. MR. HUPPMAN replied, "That was more internally." CHAIRMAN GREEN asked, "`Internally' saying that you probably wouldn't look at someone over 70, but there isn't a reason that they couldn't have this type of an arrangement?" MR. HUPPMAN replied, "That's correct." REPRESENTATIVE BUNDE noted that they were looking at a fairly narrow segment of people who both have a DNR order and a wish to donate organs. There would be no dilemma for an EMT if someone had no DNR order, for example. Number 1083 REPRESENTATIVE JAMES said she had carried a card for 30 or 40 years that says she will donate her eyes or corneas to the Lions eye bank. Noting that it will not be long before she is 70, she asked whether she should stop carrying that card. MR. HUPPMAN replied, "No, absolutely not." He said tissue and eye donation have different criteria, and he suggested a representative of Life Alaska, Incorporated, address that. Mr. Huppman said the age-70 cut-off applies to solid organs. In contrast, eye donation has an unlimited age criteria, if not for transplant purposes, then definitely for eye research. Number 1161 JENS SAAKVITNE, Director, Life Alaska, Incorporated, testified via teleconference from Anchorage. He agreed that while there are specific criteria as far as an upper age of 70 for organ donation, there is almost no upper age limit for tissue donation. He stated, "We have had donors in their 90s where tissue was used for transplants; for research donation, there's absolutely no upper age. But for tissue donation, we also have up to 24 hours after the heart stops." MR. SAAKVITNE continued, "The reason for both the hospital setting and, to an extent, the inclusion of the under-age-71 criteria is that the EMS is faced in the field with a very short period of time. When they come upon a `non-heart-beating' patient or someone who's about to die [and] they find a DNR card and an organ donor card, what do you do? What is the best way to support this person's wishes?" MR. SAAKVITNE noted that most people who carry DNR cards tend to be older and may have a terminal illness that will pretty much rule out organ donation. Medical personnel do not want to do a disservice to a family by needlessly resuscitating patients, generating all sorts of costs and a lot of heartache. Mr. Saakvitne stated, "So, we try and come up with criteria such as the `in a hospital setting,' number one, and number two, some type of age criteria that says people that are older than this age, let's not even go ahead and try to extend this resuscitation period, to make it simpler." CHAIRMAN GREEN referred to page 6, lines 27 through 29, and page 7, lines 1 through 4. He asked Lisa Kirsch to discuss the pros and cons of dropping those two subsections, (e)(2) and (e)(4). Number 1287 LISA KIRSCH, Legislative Administrative Assistant to Representative Joe Green and Committee Aide for the House Judiciary Standing Committee, advised that she had spoken with someone from the Department of Law regarding those two deletions. Subsection (e), defines when a DNR order can be revoked. The physician cannot revoke the order unless the individual himself or herself does so. However, if the individual is unconscious, for example, it can also be revoked by a parent; a guardian appointed under AS 13.26.116; a person to whom that decision has been communicated from the individual; or a person who has power of attorney for the individual. MS. KIRSCH referred to subsection (e)(2) and explained that although AS 13.26.116 puts guardianship orders into effect, it does not give an appointed guardian the power to put a "do not resuscitate" order into effect. The concern of the Department of Law is that by giving guardians the power to take such orders out of effect, it may imply they also have the power to put them into effect. They do not want to create any ambiguity as to whether guardians or persons with power of attorney have those powers of life and death over their wards or over persons for whom they hold power of attorney. Number 1440 REPRESENTATIVE BERKOWITZ suggested two categories were missing from that list: the spouse and the child. He believes spouses and children should be allowed the opportunity to make that call. MS. KIRSCH asked whether he was talking about revoking a "do not resuscitate" order, as this would be for a person who had filled out such an order. She indicated he may be talking about a situation where the spouse or child had been given that power, since that is the way the others are written. REPRESENTATIVE BERKOWITZ responded, "At the very least, I think it's something that people want to talk about, or I think maybe we should talk about." MS. KIRSCH suggested in that context, perhaps they should be talking about amendments to Title 13, rather than this bill, which focuses more on organ donation. She deferred to the sponsor for a response, then commented that she does not believe the intent is to create any new law. She said those deletions are to focus on organ donation and avoid changing existing law on guardianships or guardianship-like circumstances where a concerned person and someone incapacitated are involved. Number 1532 REPRESENTATIVE BRIAN PORTER commented on the remaining two exceptions under subsection (e) and suggested, "I don't think it would be changing much if we said that a guardian, spouse or child who had been given that authority specifically, by the person who filled it out, would have the authority to pull it. But, I mean, you're defeating the whole purpose of it if you say that anyone else can change my mind." Number 1579 REPRESENTATIVE BUNDE concurred, asking what would be the point of a DNR order if anybody could revoke it. Number 1615 MATT ANDERSON, Unit Manager, Emergency Medical Services Unit, Community Health and Emergency Medical Services, Division of Public Health, Department of Health and Social Services, came forward to testify, expressing the department's support of the bill as written. He stated, "We believe that SB 38 will make it much easier for health care workers to identify individuals who have living wills and to those who will be able to identify patients who ... wish to donate organs and issues. We hope this will ensure that we are able to comply more fully with the patients' wishes regarding medical care, anatomical gifts, and that that, in turn, will increase the availability of organs and tissues available for donation." MR. ANDERSON continued, "In addition, this bill clarifies how `do not resuscitate' orders can be revoked, something which was not clear in existing state statute and is an issue that is extremely important for pre-hospital emergency care workers." He expressed appreciation to the sponsor for his willingness to allow the department to make suggestions to improve the bill as it went through the process. He offered to answer questions. Number 1680 CHAIRMAN GREEN referred to discussion of whether a guardian or person holding a power attorney should have authority to revoke a "do not resuscitate" order. He asked Ms. Denton whether Washington or other states have a similar provision. MS. DENTON replied, "Not that I'm aware of." REPRESENTATIVE PORTER made a motion to amend the proposed committee substitute by deleting subsections (e)(2) and (e)(4), found at page 6, lines 27 through 29, and page 7, lines 1 through 4. CHAIRMAN GREEN asked whether there was any objection. There being none, the amendment was adopted. REPRESENTATIVE JAMES noted that the other subsections would be renumbered accordingly. Number 1760 REPRESENTATIVE BERKOWITZ made a motion to remove the 71-year restriction. He said it seemed to be a little arbitrary. In addition, he did not feel it was right to single out "people who have reached that exalted stage." Number 1775 MR. AMBROSE advised that the sponsor would have no objection so long as the language "in a hospital setting" remains; that evaluation could be made in the hospital. He explained, "We just don't want it to be in a situation where it's in the field and the folks that provide these wonderful responses in the field have to be making these choices." CHAIRMAN GREEN noted that the age reference occurs in at least two places. He asked, "Would your amendment be to actually find them or just wherever that restriction is, ... it would be removed but not ... the `hospital setting' portion of that." REPRESENTATIVE BERKOWITZ replied, "What you said, Mr. Chairman." Number 1808 CHAIRMAN GREEN asked whether there was any objection to that concept. REPRESENTATIVE BUNDE suggested the 71-year age would remain for nonmedical settings, such as in the field for EMTs. CHAIRMAN GREEN concurred. REPRESENTATIVE BUNDE said in that case, he had no objection. CHAIRMAN GREEN asked whether there was further objection. Hearing none, he advised that the conceptual amendment was adopted. REPRESENTATIVE PORTER made a motion that the proposed committee substitute, as amended, be moved from committee with individual recommendations and the attached zero fiscal note. There being no objection, HCS CSSSSB 38(JUD) was moved from the House Judiciary Standing Committee.
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