The Spring/Summer 2015 edition of the New York State Bar Association Health Law Journal features an article, Medical, Ethical and Legal Obligations to Honor Individual Preferences Near the End of Life, co-authored by Patricia Bomba, MD and Jonathan Karmel, Esq. Because of its perceived value to a broader audience, the NYSBA Health Law Journal granted the authors permission to reprint.

The article outlines the ethical-legal framework for making medical decisions under New York State Public Health Law (NYSPHL) highlighting four key statutes: 1) Health Care Proxy Law; 2) Family Health Care Decisions Act (FHCDA); 3) Surrogate’s Court Procedure Act 1750-b (SCPA § 1750-b); and 4) Medical Orders for Life-Sustaining Treatment (MOLST.)

In New York, a seriously ill person who might die in the next year and has the ability to make medical decisions regarding life-sustaining treatment has the right to discuss his/her goals, values and wishes with his/her physician, and complete the New York State Department of Health (NYSDOH) MOLST form (DOH-5003).

The authors clarify the authority to make MOLST decisions. A health care agent or a Public Health Law surrogate CANNOT demand life-sustaining treatment and hospitalization for an individual when the resident loses capacity and his/her health status worsens, if that request conflicts with the individual’s prior decisions, made when the person had capacity and the medical orders were issued by the attending physician on the MOLST.

The authors provide real examples of what should and should not happen with MOLST. Further, the authors examine when there are failures in following MOLST orders and review several reasons which have been identified to date.

Finally, the article outlines significant recommendations which have been made nationally with the 2014 Institute of Medicine (IOM) Report Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life and in New York State to improve compliance with MOLST and other relevant laws.
1. Clinician Training Should be Strengthened.
2. Public Education and Engagement in Advance Care Planning (ACP) Should Be Encouraged.
3. Many of the problems identified in the implementation of advance care planning would be remedied by the expansion and implementation of eMOLST.

An individual has the right to accept or refuse treatment under the Patient Self-Determination Act (PSDA), including the right to accept or refuse any or all life-sustaining treatment near the end of life. While public health law varies from state to state, the ethical framework is the same and PSDA applies. For information on Physician Orders for Life-Sustaining Treatment (POLST) Paradigm programs in other states, view POLST.org. NY’s MOLST is an endorsed POLST Paradigm Program.

Jonathan Karmel, associate counsel for the NYSDOH, describes the advantages of the eMOLST application and endorses eMOLST use by providers and healthcare facilities across New York State.

eMOLST helps clinician follow a standardized clinical communication process, the ethical framework and New York State Public Health Law legal requirements for making difficult and complicated decisions. MOLST forms and documentation of the discussion are housed in the eMOLST registry. Using eMOLST helps ensure that patients’ end-of-life preferences for treatment are honored.

Can a health care agent or a Public Health Law surrogate demand life-sustaining treatment and hospitalization for a nursing home resident, when the resident loses capacity and his/her health status worsens?

If that request conflicts with the resident’s prior decisions, made when the resident had capacity and the medical orders were issued by the attending physician on the MOLST, the answer is NO.

Jonathan B. Karmel has been Associate Counsel in the Bureau of House Counsel at the New York State Department of Health since August 2000. He interprets New York’s Health Care Proxy Law and Do Not Resuscitate (DNR) laws, including the laws for issuing Medical Orders for Life-Sustaining Treatment (MOLST). He is the Department’s Health Insurance Portability and Accountability Act (HIPAA) Privacy Official. He provides legal advice to a number of different programs within NYSDOH.

He is the attorney for the MOLST and eMOLST programs at the NYSDOH. He helped the Department implement the Family Health Care Decisions Act, including creating the NYSDOH MOLST Legal Requirements Checklists for Patients, including Minor Patients.

After using the eMOLST training site, Jonathan remarked,

“I did log on to the eMOLST Training Site and was able to fill out a MOLST form, download it and print it. I do think eMOLST has all the advantages of using TurboTax vs. trying to do your taxes using paper forms with a pencil. The electronic form didn’t let me make mistakes – it prevented me from filling out the form in a way that was illegal, inconsistent or illogical. I think this is great!”

Prior to working at NYSDOH, he clerked for New York State Court of Appeals Judge Howard Levine, after graduating summa cum laude from Brooklyn Law School. Before law school, he received a master of education degree from Harvard University and taught high school social studies for three years. He received his undergraduate degree from Cornell University. Jonathan lives in Albany County with his wife and two sons.

The Spring 2011 edition of the New York State Bar Association Health Law Journal features an article, Honoring Patient Preferences as the End of Life: The MOLST Process and the Family Health Care Decisions Act (FHCDA), co-authored by Karen Lipson, Esq. and Jonathan Karmel, Esq. Because of its perceived value to a broader audience and additional background for this month’s lead article, the NYSBA Health Law Journal granted permission to reprint.

New York’s MOLST began in 2001 in Rochester NY with a goal of ensuring patient preferences for treatment near the end of life would be honored. A literature review revealed the positive outcomes of the POLST program that originated in Oregon in 1991. New York’s MOLST was developed based on the POLST program and integrated NYSPHL.

Prior to FHCDA that went into effect on June 1, 2010, MOLST decisions could only be made by a patient with the ability to make complex medical decisions regarding life-sustaining treatment or in the absence of medical decision-making capacity, a patient needed a health care proxy or “clear and convincing evidence” as defined by NYS Case Law (a living will or “repeated oral expression.”)

With the passage of FHCDA, the ethical-legal framework for making decisions changed from three to seven different pathways, based on who makes the decision and where the decision is made. To help clinicians recognize the different requirements, the NYSDOH created six legal requirements checklists for patients, including one for minor patients. MOLST Chart Documentation Forms (CDFs) that align with the NYSDOH checklists were created to ensure appropriate documentation of a standardized clinical process and ethical-legal framework.
MOLST CDF aligns with DOH Checklist #1
MOLST CDF aligns with DOH Checklist #2
MOLST CDF aligns with DOH Checklist #3
MOLST CDF aligns with DOH Checklist #4
MOLST CDF aligns with DOH Checklist #5
MOLST CDF aligns with DOH Checklist for Minor Patients

The Office for Persons with Developmental Disabilities (OPWDD) created the MOLST Legal Requirements Checklist for Individuals with Developmental Disabilities to outline the SCPA §1750-b process and documentation that must be followed before MOLST orders can be signed. The OPWDD Checklist must travel with the MOLST form.

While the intent is to primarily provide patient protections, NYSPHL is complex. To further assist clinicians, the standardized clinical process and the ethical framework and legal requirements are built into eMOLST; the end result of the process is a copy of the MOLST and the MOLST CDF that is available across care transitions.