On June 9, 2016, California’s End of Life Option Act (EOLOA) became law. The California legislature passed the law after being persuaded by the case of 29-year-old Brittany Maynard, who in 2014 moved from California to Oregon to die under Oregon’s Death with Dignity law. EOLOA permits terminally ill adult patients who have the capacity to make medical decisions to be prescribed an aid-in-dying (AID) medication by a participating physician if certain conditions are met. Because it is likely that a high percentage of patients who may invoke their right under the new law will be elderly, it is worth examining how senior living facilities in California will need to determine if they will provide permit their residents to exercise the rights created under EOLOA and adapt to the myriad requirements encompassed in the statute.
End of Life Option Act – Basic Framework
It is important to remember that the underlying premise of EOLOA is that it is voluntary. Everyone from patients, physicians, healthcare providers, and pharmacists may choose whether or not to participate. Under the law, an adult in California that has been diagnosed with a terminal disease and has the mental capacity to make and understand the medical decision to die on their own may request a prescription for an AID drug if a number of preconditions are satisfied. EOLOA requires that: (1) the individual’s attending physician has diagnosed the individual with a terminal disease (i.e., less than six months left to live); and (2) the individual has voluntarily expressed the wish to receive a prescription for an AID drug1 . The individual must make, at a minimum, two oral requests and a written request, with the timing and format of the requests complying with specific statutory requirements². The attending physician then must comply with a number of requirements before prescribing an AID drug³. If all the statutory conditions are met, two physicians — an Attending Physician and a Consulting Physician — are required to be present when the patient ingests the AID drug. Of note is the fact that the law explicitly provides that aid-in-dying activities that are undertaken, pursuant to and in compliance with the law’s terms, are not suicide.⁴ Rather, the legal cause of death is attributable to the underlying disease.
Opting In/Out and Consequential Immunities
Healthcare providers (HCPs) — either organizationally or individually — have the ability to refuse to participate in aid-in dying activities.⁵ EOLOA includes in its definition engage Summer 2016 21 magazine of HCPs skilled nursing facilities, nursing facilities, and hospice care facilities. It does not make mention of Residential Care Facilities for the Elderly (RCFEs), independent living facilities (ILFs), or unlicensed housing. HCPs may prohibit their employees, independent contractors, or other persons from participating in such activities while on premises owned, managed, or under the direct control of the prohibiting HCP or while acting within the course and scope of any employment or contract with the prohibiting HCP.⁶ Any healthcare provider that intends to enforce such a prohibition must first give notice of its policy prohibiting participation in EOLOA to the affected parties. An HCP is not subject to discipline, suspension, loss of license, loss of privileges or any other penalty for participating in good faith with the law. However, staff of the HCP may object to participating in the end-of-life activities even if their employer does not. Furthermore, staff may not be disciplined for participating or refusing to participate.
Impact on RCFEs and ILFs
EOLOA does not list RCFEs and ILFs as healthcare providers under the law. This creates certain ambiguities in the regulatory environment: Can senior living facilities require residents to disclose end-of-life plans? Can it prohibit residents from self-administering AID drugs on its premises? Must the facility store the AID drug for the resident? May it prohibit staff from participating as HCPs are entitled to under the law? A memo from the California Department of Social Services (DSS), which is responsible for community care facility licensing, identified RCFE licensees and its employees as entities or individuals under the statute that may, due to “conscience, ethics or morality” opt not to participate in activities authorized by EOLOA. Practically speaking, this allows RCFEs to elect not have its employees participate in end-of-life activities and it may inform residents of the facility’s choice not to participate in EOLOA activities. The DSS memo further clarifies that RCFE residents retain the right to obtain and self-administer AID drugs on the premises; provided, however, that the resident is solely responsible for obtaining, storing, and self-administering the AID drugs. Furthermore, an affirmative exercise by a resident of their rights under the law cannot be a basis for having a resident transferred out of the facility.
Federal Funding Restrictions
Under the federal Assisted Suicide Funding Restriction Act of 1997⁷, federal funds cannot be used either “directly or indirectly” for the provision of healthcare services “to provide any healthcare item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.”⁸ Medicare will pay for end-of-life planning only, which includes learning about options such as the aid-in-dying provisions covered by EOLOA. The healthcare programs specifically covered by the federal funding restriction include: • the Medicare program • the Medicaid program • the Indian Health Care Improvement Act • the Federal employees health benefits program • the military healthcare system, and • Veterans medical care.⁹ Due to the federal funding restriction discussed, it is highly recommended that continuing care retirement communities which participate in federal healthcare programs (e.g., skilled nursing beds with Medicare patients) seek legal advice on their ability to effectively participate in aid-in-dying activities under state law. If prohibited from participation, the most prudent course of action is for the facility to implement policies and procedures prohibiting aid-in-dying activities permitted by EOLOA.
Best Practice Considerations
Senior living facilities should budget the time and resources to make an organizational decision as to whether or not it will permit EOLOA activities on its premises. Once a decision is made, a written policy should be distributed to employees and residents and a rigorous training program should be developed for all staff. Facilities should also encourage residents to share their end-of-life plans so as to properly accommodate residents while remaining in compliance with the facility’s newly-drafted policy. Issues such as medication storage, who will be present during the AID drug ingestion, engaging family and/or hospice involvement, and whether to call 911 during the process are all key considerations for facilities that care for elderly residents that may wish to proceed with aid-in-dying activities.
¹ Section 443.2(a). ² Section 443.3. ³ Section 443.5. ⁴ Section 443.13(a)(2); 443.18. ⁵ Section 443.14 and 443.15. ⁶ Id. at (a). ⁷ 42 USC § 14401 et seq. ⁸ 42 USC § 14402 (a)(1)(emphasis added). ⁹ 42 U.S.C. § 11402(d)(1).