Doctors fear OPMC problems if they do not comply with the law.
Do you have evidence of OPMC problems with failure to follow Family Health Care Decisions Act (FHCDA) or the Palliative Care Information Act (PCIA)? Similarly, are their concerns with OPMC enforcement issues related to physicians reporting immunizations to the New York State Immunization Information System (NYSIIS)? The reporting requirement contained in this legislation was modeled on the 2008 requirement that all practitioners enter immunizations administered to children into the NYSIIS within 14 days of administration of the immunization. To date, we are unaware of any enforcement by OPMC related to reporting to this registry.

This provision is also designed to encourage the use of eMOLST, rather than the paper version, which would eliminate any concerns related to reporting within 14 days as completion on eMOLST would automatically be submitted to the Registry, requiring no additional action by the physician.

Doctors are concerned that the data may not be housed at the NYS DOH.
Concern about data not being housed by NYS DOH: Under the structure of the legislation, it is envisioned that the Department of Health would contract with an entity, presumably the MOLST Program, to operate the Registry. While not “housed” at the NYSDOH, the Registry operator would be under contract with the DOH for the operation of the Registry and would be subject to significant oversight by DOH. In addition, the current eMOLST system operated by the MOLST Program is not housed by the NYS DOH, but is housed in a separate secure server, electronically stores all MOLST forms completed through the eMOLST system. The data is encrypted and separate from the application.

The Registry would be operated in the same manner as the current eMOLST application. Importantly, this means that access and information transmitted through the application complies with HIPAA, Department of Health privacy rules and New York State Public Health Law. In keeping with New York State’s vision for open-system solutions, the eMOLST application was developed following open architectural principles for the benefit of the community and other Regional Health Information Organizations (RHIOs) across the state, as well as serve as a data source for the Statewide Health Information Network for New York (SHIN-NY).

Lastly, the information contained on the MOLST is not intended to remain with the DOH, rather, it is meant to be accessed by all health care providers.

Doctors are concerned about multiple different documents which may have conflicting data.
This legislation would assist in eliminating this concern by creating 2 Registries – an advance directive registry and MOLST Registry. The advance directive registry would assist in ensuring accurate documents, such as health care proxies. Patients who are appropriate for MOLST should have an up-to-date health care proxy in case MOLST orders need to be revised after the patient loses capacity. Similarly, the MOLST registry would only allow for the most recent valid MOLST to be accessible to health care providers, eliminating the concern that the form may be out of date or had been revoked.

MOLST is a set of medical orders signed by the physician or nurse practitioner (as of May 28, 2018) that defines life-sustaining treatment the patient wants to receive or avoid now. Living wills are difficult for physicians to interpret and operationalize as irreversible and potentially reversible conditions coexist. A MOLST done reflecting a patient’s current health status, prognosis, goals for care is more valuable to the physician making decisions than a living will done 20 years ago, especially when the same physician is not seeing the patient in every care setting.

Excellus BlueCross BlueShield (EBCBS) has graciously provided financial support for educational resources to support advance care planning since 2001. This includes the distribution and fulfillment of all MOLST forms since 2004, the Community Conversations on Compassionate Care (CCCC) Advance Care Planning booklet, MOLST & CCCC brochures and other materials that are outlined on the order form. These materials need to be updated with the changed in NYSPHL and are contingent on DOH approval of the MOLST form. Please read the frequently asked questions document that answers questions such as, “I ran out of MOLST Forms. What should I do until the new form is available?”

As health systems are digitally transforming, encourage your organizations to convert to eMOLST. eMOLST is New York’s secure web-based MOLST completion tool that also serves as the registry to ensure accuracy and 24/7 access to these critical medical orders and a copy of the MOLST discussion across our state. eMOLST will also ensure compliance with the changes to NYS Public Health Law that went into effect 5/28/2018 and future changes in NYSPHL. eMOLST can be used by any clinician with internet access and eMOLST can also be integrated into EMRs. Learn more at NYSeMOLSTregistry.com

We do not have an exact date, as we are awaiting approval from NYSDOH. The MOLST Form is being revised to comply with changes to Public Health Law and important clinical feedback from physicians and others since June 1, 2010. Recommendations include clarification of language contributing to medical errors and adding MOLST instructions to improve use of MOLST. The proposed revision was vetted by members of the MOLST Statewide Implementation Team, the EMS Workgroup, key palliative care physicians, nurse practitioners and clinicians who use MOLST/eMOLST regularly, eMOLST analytic data, NYSDOH, OPWDD and MHLS.

On November 29th, 2017, Governor Cuomo signed S.1869 (Hannon)/A.7277 (Gottfried), legislation enabling nurse practitioners to execute medical orders not to resuscitate and other orders pertaining to withholding and/or withdrawing life-sustaining treatment, as Chapter 430 of the laws of 2017.

Chapter 430 amends the Public Health Law to expand the authority of the “attending nurse practitioner” and align with the authority of the “attending physician” under Family Health Care Decisions Act (FHCDA) for making end-of-life decisions that result in medical orders in all clinical settings. Under the Palliative Care Information Act, nurse practitioners are obliged to – and do – counsel patients and families about end-of-life options. The new law became effective on May 28, 2018, six months after the Governor signed the legislation.

The new law, however, does not amend the Surrogate Court Procedures Act (SCPA) 1750-b, which relates to individuals with developmental disabilities, or statutes governing health care proxies.

Thus, the new law will impact the Medical Orders of Life Sustaining Treatments (MOLST) form and process, the DOH MOLST Checklists, the MOLST Chart Documentation forms and eMOLST. Revisions to the documents and eMOLST are needed to acknowledge the new statutory authority afforded to nurse practitioners with this legislation. We are working with the Department of Health to align the MOLST documents with the new law.

We need to continue working on reducing arbitrary barriers that will include addressing the existing statue for health care proxies and Surrogate Court Procedures Act. A bill introduced in this legislative session (S7713, A10345) aims to align Health Care Proxy law with FHCDA. Learn more about the proposed legislation and how you can help. Your support is needed!

Nurse Practitioners and Capacity Determination
There is understandable confusion when the scope of practice of nurse practitioners changed with amending the FHCDA, but not Health Care Proxy law or Surrogate Court Procedures Act (SCPA) 1750-b.

While these laws were not amended under this legislation, the scope of practice for nurse practitioners allows for nurse practitioner to assess capacity and notify the patient of the capacity determination when a FHCDA Surrogate makes decisions. There is no difference if the decision-maker is a health care agent. It is particularly problematic when the new law expands the authority for the nurse practitioners to not only perform the primary capacity determination, but also medical determinations, notifications, special requirements, etc.

Nurse Practitioners and MOLST Process Beyond Signing MOLST Orders
MOLST is more than a form. Having a thoughtful MOLST discussion that ensures shared medical decision-making is best done using a standardized approach. The 8 step MOLST protocol was developed in 2005 to help physicians, nurse practitioners, physician assistants and others who are engaged in end-of-life discussions develop a systematic approach to end-of-life discussions that worked for physicians prior to MOLST.

Clarifying Confusion
In an effort to clarify confusion in the field, I have adapted tables created by Robert N. Swidler, V.P. Legal Services, St. Peter’s Health Partners, Albany NY and have posted with his permission on MOLST.org.

The first table clarifies current New York State Public Health Law and the NP’s authority to do capacity and concurrent capacity determination. The second table clarifies current New York State Public Health Law NYSPHL and the nurse practitioner’s authority to participate in the MOLST process and sign MOLST orders.