Patricia Bomba, MD, MACP, FRCP
Chair, National Healthcare Decisions Day New York State Coalition

The COVID-19 pandemic sheds new light on the often-abstract concept of advance care planning. Advance care planning is the process we use to think about, and document, what matters most to us, and our thoughts and desires when it comes to quality of life. The process also includes designating a health care agent who can make decisions that reflects what matters most if we’re unable to speak for ourselves.

During this pandemic, many people have had to make medical decisions for loved ones who were unable to communicate on their own. National Healthcare Decisions Day, observed every year on April 16, is a day set aside to remind us of the importance of advance care planning.

Advance care planning gives patients peace of mind in knowing that health care decisions will be made on their behalf by a person they trust. For family members and friends who have been named health care agents, advance care planning provides the confidence to make decisions based on their loved one’s values and beliefs.

The process begins with conversations with your health care provider, family members and trusted friends. Once you identify the person you’d like to serve as your health care agent, you document it by completing a health care proxy form.

You can complete or update a health care proxy form with your physician, nurse practitioner or physician assistant. During the COVID-19 pandemic and mandated social distancing, arranging a telemedicine visit with your health care provider by telephone or by using video conferencing technology such as Skype or ZOOM can easily replace an in-person visit. HIPAA privacy rules for telemedicine visits have been waived during the COVID-19 crisis.

Amid the pandemic, thoughtful MOLST discussions delivered with honesty and compassion add value. There are approximately 35,000 – 40,000 patients in the eMOLST system, with approximately a 50-50 split between Downstate: Lower Hudson Valley, NYC (particularly Manhattan & Brooklyn) and Long Island and Upstate (the rest of the state). There are thousands more paper MOLST forms. It is critical that MOLST/eMOLST reflect today’s preferences for care during the COVID-19 crisis.

The health care proxy form requires two witnesses to the signature. This can be accomplished by using video conferencing technology. A photo of the signed health care proxy can be mailed or emailed to the physician, nurse practitioner, or physician assistant, or uploaded to the medical practice’s secure patient portal. Keep a copy for yourself and forward additional copies to family members, trusted friends, and your attorney.

If video conferencing is unavailable, speak with your health care provider about the process for granting verbal consent over the phone. If the physician, nurse practitioner or physician assistant cannot witness your signature, the name of your chosen health care agent, your stated values and beliefs for care, and the verbal consent can be documented in your medical record and treated in the same way as an oral advance directive. New York case law allows for “clear and convincing evidence” of an oral advance directive.

Prepare for your visit with your physician or nurse practitioner or physician assistant by reviewing questions and the Five Easy Steps:
1. Learn about advance directives.
2. Remove barriers to completing advance directives.
3. Motivate yourself by watching testimonial videos at CompassionAndSupport.org.
4. Complete your health care proxy. Talk to your family and provider about what matters to you.
5. Periodically review and update your advance directives.

Learn more about advance care planning free at CompassionAndSupport.org, that includes information on advance care planning, free downloadable forms, special considerations and instructional videos.

New York, especially NYC and the surrounding area, is the epicenter of the COVID-19 pandemic in the US. We deeply appreciate the challenges our health care practitioners and all health care workers are facing during the COVID-19 pandemic.

A new COVID-19 section on MOLST.org provides guidance on NY MOLST and eMOLST to assist our physicians, NPs and PAs (as of June 17, 2020) who have authority and accountability for MOLST discussions. Resources are also available for patients, families, health care agents and surrogates. Advance Care Planning for the general population and high risk individuals, effective communication skills for completing MOLST considering COVID-19 and removal of barriers for MOLST discussions are highlighted.

The OPWDD: Individuals with I/DD page aims to expedite completion of the 1750-b process. The Ethics & The Law page addresses guidelines for allocating ventilators. View also eMOLST: Urgent Access; Federal & State Guide and Contact Us.

Individuals with intellectual/developmental disability (I/DD) who have capacity to make MOLST decisions can MOLST decisions as any other adult patient. If an individual with I/DD lacks capacity to make end-of-life decisions but has a health care proxy (HCP) or has the capacity to choose a health care agent and complete a HCP, the health care agent is the medical decision maker. Special considerations must be met as outlined in Advance Care Planning/Special Considerations: I/DD.

Individuals with I /DD who lack capacity to make MOLST decisions and do not have a health care proxy have special requirements for completing a MOLST. The OPWDD Checklist must be completed first and is available as a fillable PDF. The medical decision-maker is the Surrogate identified per the Surrogate Court Procedure Act § 1750-b. How to complete MOLST and meet the requirements during the crisis is outlined on COVID-19 Guidance/OPWDD: Individuals with I/DD in the COVID-19 section. Read additional details on the Ethical & Legal Requirements for Patients with I/DD.

Patricia Bomba, MD, MACP, FRCP
MOLST & eMOLST Program Director

Patients with advanced medical conditions and frailty, and individuals who are immunocompromised are at the highest risk for COVID-19 and are also appropriate for MOLST.

Vulnerable older adults who reside in nursing homes and assisted living, as well individuals eligible for care in a nursing home who choose to live at home and receive long-term care services, are at particularly high risk for COVID-19.

Similarly, individuals with Intellectual/Development Disability (I/DD) who are appropriate for MOLST and reside in group homes are also at high risk. These individuals deserve to be offered the opportunity to have a thoughtful MOLST discussion as well.

The medical decision maker is dependent on the patient’s ability to make MOLST decisions. If the patient has capacity, the patient makes their own decisions. If the patient lacks capacity and has a properly completed health care proxy, the health care agent is the decision-maker. If the patient lacks capacity, a surrogate identified from a list in Family Health Care Decisions Act (FHCDA) makes decisions. If the individual has I/DD and lacks capacity, a surrogate identified under SCPA 1750-b is the decision-maker. Special requirements exist when a FHCDA or 1750-b surrogate makes decisions.

Physicians and nurse practitioners (NPs) and physician assistants (PAs*) are encouraged to focus on patients who are appropriate for MOLST. For high risk patients who do not have a DOH MOLST/eMOLST, screen and identify patients who are appropriate for MOLST and offer MOLST.

Prepare for a thoughtful MOLST discussion
The physician, NP or PA* should have a thoughtful MOLST discussion with the appropriate decision maker (patient, health care agent or surrogate), using the 8-Step MOLST Protocol, bearing in mind the patient’s current health status, prognosis, goals for care and COVID-19. A care plan that includes palliation and supportive care is necessary for those patients who choose to remain and be treated in place.

To prepare for the MOLST discussion, the physician, NP or PA* and the identified medical decision-maker should review the MOLST Form and the specific web pages that identify the medical orders included on the MOLST. Special attention should be paid to resuscitation preferences, respiratory support and future hospitalization/transfer. For patients with chronic renal insufficiency, discussion should also focus on dialysis. Similarly, for those with dementia, neurodegenerative disorders, etc., discussion should include feeding tubes. The PEG Tube Guidelines were reviewed and updated by a workgroup and approved by the Monroe County Medical Society Quality Collaborative in March 2020. Several tools are available, including the Benefits and Burdens, Legal and Ethical Issues.

If an individual with I/DD lacks capacity, does not have a properly completed HCP, and lacks capacity to choose a HCA, MOLST cannot be signed until the §1750-b process is completed, as outlined on the OPWDD Checklist. Only a physician can sign a MOLST under 1750-b.

Barriers to MOLST discussions are removed during the crisis
In working with physicians over the past several weeks, it has helped to discuss process and solutions to potential barriers:
• ACP CPT codes 99497 (first 30 mins) and 99498 (each additional 30 mins) can be billed in all settings, including inpatient. The codes can also be billed in conjunction with E&M, TCM & CCM codes, among others. All Medicare & Medicaid carriers must cover them. Check with private carriers for additional coverage details.
• HIPAA-mandated security requirements for telemedicine have been lifted. CMS guidance on Telehealth, March 20, 2020.
• Many carriers are improving reimbursement for phone calls and telemedicine visits.

*The authority and accountability for a physician assistant to complete a MOLST is effective June 17, 2020, unless an Executive Order modifies the date.