COMMITTEE SUBSTITUTE

FOR


H. B. 4328

(By Mr. Speaker, Mr. Kiss, and Delegates Douglas, Staton,

Leach, Amores, Compton and Stalnaker

)


(Originating in the Committee on the Judiciary)


[February 28, 2002]


A BILL to amend and reenact sections three, four, five, seven, eight, ten, thirteen and twenty-two, article thirty, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section twenty- five; and to amend and reenact sections three, five, six, seven, eleven and thirteen, article thirty-c of said chapter, all relating to end of life care; providing for a standardized physician orders for scope of treatment form; establishing the information required by the form; setting forth procedures for the issuance, use and transfer of the form; amending the qualifications for advanced nurse practitioners who determine the need for and select a surrogate decision maker; providing civil and criminal immunity from liability for good faith compliance with do not resuscitate orders; eliminating the language requirements for do not resuscitate identification; updating definitions and terms; and establishing effective dates.

Be it enacted by the Legislature of West Virginia:
That sections three, four, five, seven, eight, ten, thirteen and twenty-two, article thirty, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section twenty-five; and that sections three, five, six, seven, eleven and thirteen, article thirty-c of said chapter be amended and reenacted, all to read as follows:
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-3. Definitions.
For the purposes of this article:
(a) "Actual knowledge" means the possession of information of the person's wishes communicated to the health care provider orally or in writing by the person, the person's medical power of attorney representative, the person's health care surrogate or other individuals resulting in the health care provider's personal cognizance of these wishes. Constructive notice and other forms of imputed knowledge are not actual knowledge.
(b) "Adult" means a person who is eighteen years of age or older, an emancipated minor who has been established as such pursuant to the provisions of section twenty-seven, article seven, chapter forty-nine of this code or a mature minor.
(c) "Attending physician" means the physician selected by or assigned to the person who has primary responsibility for treatment and care of the person and who is a licensed physician. If more than one physician shares that responsibility, any of those physicians may act as the attending physician under this article.
 (d) (c) "Advanced practice nurse practitioner" means a registered nurse with substantial theoretical knowledge in a specialized area of nursing practice and proficient clinical utilization of the knowledge in implementing the nursing process, and who has met the further requirements of pursuant to the provisions of title 19, legislative rules for West Virginia board of examiners for registered professional nurses, series 7. , who has a mutually agreed upon association in writing with a physician and has been selected by or assigned to the person and has primary responsibility for treatment and care of the person.
(d) "Attending physician" means the physician selected by or assigned to the person who has primary responsibility for treatment and care of the person and who is a licensed physician. If more than one physician shares that responsibility, any of those physicians may act as the attending physician under this article.
(e) "Capable adult" means a person over the age of eighteen years an adult who is physically and mentally capable of making health care decisions and who has is not been deemed considered a protected person pursuant to the provisions of chapter forty-four-a of this code.
(f) "Close friend" means any adult who has exhibited significant care and concern for an incapacitated person who is willing and able to become involved in the incapacitated person's health care, and who has maintained regular contact with the incapacitated person so as to be familiar with his or her activities, health and religious and moral beliefs.
(g) "Death" means a finding made in accordance with accepted medical standards of either: (1) The irreversible cessation of circulatory and respiratory functions; or (2) the irreversible cessation of all functions of the entire brain, including the brain stem.
(h) "Guardian" means a person appointed by a court pursuant to the provisions of chapter forty-four-a of this code who is responsible for the personal affairs of a protected person, and includes a limited guardian or a temporary guardian.
(i) "Health care decision" means a decision to give, withhold or withdraw informed consent to any type of health care, including, but not limited to, medical and surgical treatments, including life-prolonging interventions, psychiatric treatment, nursing care, hospitalization, treatment in a nursing home or other facility, home health care and organ or tissue donation.
(j) "Health care facility" means a facility commonly known by a wide variety of titles, including, but not limited to, hospital, psychiatric hospital, medical center, ambulatory health care facility, physicians' office and clinic, extended care facility operated in connection with a hospital, nursing home, a hospital extended care facility operated in connection with a rehabilitation center, hospice, home health care and other facility established to administer health care in its ordinary course of business or practice.
(k) "Health care provider" means any licensed physician, dentist, nurse, physician's assistant, paramedic, psychologist or other person providing medical, dental, nursing, psychological or other health care services of any kind.
(l) "Incapacity" means the inability because of physical or mental impairment to appreciate the nature and implications of a health care decision, to make an informed choice regarding the alternatives presented, and to communicate that choice in an unambiguous manner.
(m) "Life-prolonging intervention" means any medical procedure or intervention that, when applied to a person, would serve to artificially prolong the dying process or to maintain the person in a persistent vegetative state. Life-prolonging intervention includes, among other things, nutrition and hydration administered intravenously or through a feeding tube. The term "life-prolonging intervention" does not include the administration of medication or the performance of any other medical procedure deemed considered necessary to provide comfort or to alleviate pain.
(n) "Living will" means a written, witnessed advance directive governing the withholding or withdrawing of life-prolonging intervention, voluntarily executed by a person in accordance with the requirements of section four of this article.
(o) "Mature minor" means a person less than eighteen years of age who has been determined by a qualified physician, a qualified psychologist or an advanced practice nurse practitioner in collaboration with a physician to have the capacity to make health care decisions.
(p) "Medical information" or "medical records" means and includes without restriction any information recorded in any form of medium that is created or received by a health care provider, health care facility, health plan, public health authority, employer, life insurer, school or university or health care clearinghouse that relates to the past, present or future physical or mental health of the person, the provision of health care to the person, or the past, present or future payment for the provision of health care to the person.
(q) "Medical power of attorney representative" or "representative" means a person eighteen years of age or older appointed by another person to make health care decisions pursuant to the provisions of section six of this article or similar act of another state and recognized as valid under the laws of this state.
(r) "Parent" means a person who is another person's natural or adoptive mother or father or who has been granted parental rights by valid court order and whose parental rights have not been terminated by a court of law.
(s) "Persistent vegetative state" means an irreversible state as diagnosed by the attending physician or a qualified physician in which the person has intact brain stem function but no higher cortical function and has neither self-awareness or awareness of the surroundings in a learned manner.
(t) "Person" means an individual, a corporation, a business trust, a trust, a partnership, an association, a government, a governmental subdivision or agency or any other legal entity.
(u) "Physician orders for scope of treatment (POST) form" means a standardized form containing orders by a qualified physician that details a person's life-sustaining wishes as provided by section twenty-five of this article.
(u) (v) "Principal" means a person who has executed a living will or medical power of attorney.
(v) (w) "Protected person" means an adult, who, pursuant to the provisions of chapter forty-four-a of this code, has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events and environments to an extent that the individual lacks the capacity to: (1) Meet the essential requirements for his or her health, care, safety, habilitation or therapeutic needs without the assistance or protection of a guardian; or (2) manage property or financial affairs to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator.
(w) (x) "Qualified physician" means a physician licensed to practice medicine who has personally examined the person.
(x) (y) "Qualified psychologist" means a psychologist licensed to practice psychology who has personally examined the person.
(y) (z) "Surrogate decision maker" or "surrogate" means an adult individual eighteen years of age or older who is reasonably available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions, and is identified or selected by the attending physician or advanced practice nurse practitioner in collaboration with the attending physician in accordance with the provisions of this article as the person who is to make those decisions in accordance with the provisions of this article.
(z) (aa) "Terminal condition" means an incurable or irreversible condition as diagnosed by the attending physician or a qualified physician for which the administration of life-prolonging intervention will serve only to prolong the dying process.
§16-30-4. Executing a living will or medical power of attorney.
(a) Any competent adult may execute at any time a living will or medical power of attorney. A living will or medical power of attorney made pursuant to this article shall be: (1) In writing; (2) executed by the principal or by another person in the principal's presence at the principal's express direction if the principal is physically unable to do so; (3) dated; (4) signed in the presence of two or more witnesses at least eighteen years of age; and (5) signed and attested by such witnesses whose signatures and attestations shall be acknowledged before a notary public as provided in subsection (d) of this section.
(b) In addition, a witness may not be:
(1) The person who signed the living will or medical power of attorney on behalf of and at the direction of the principal;
(2) Related to the principal by blood or marriage;
(3) Entitled to any portion of the estate of the principal under any will of the principal or codicil thereto: Provided, That the validity of the living will or medical power of attorney shall not be affected when a witness at the time of witnessing such living will or medical power of attorney was unaware of being a named beneficiary of the principal's will;
(4) Directly financially responsible for principal's medical care;
(5) The attending physician; or
(6) The principal's medical power of attorney representative or successor medical power of attorney representative.
(c) The following persons may not serve as a medical power of attorney representative or successor medical power of attorney representative: (1) A treating health care provider of the principal; (2) an employee of a treating health care provider not related to the principal; (3) an operator of a health care facility serving the principal; or (4) any person who is an employee of an operator of a health care facility serving the principal and who is not related to the principal.
(d) It shall be the responsibility of the principal or his or her representative to provide for notification to his or her attending physician and other health care providers of the existence of the living will or medical power of attorney or a revocation of the living will or medical power of attorney. An attending physician or other health care provider, when presented with the living will or medical power of attorney, or the revocation of a living will or medical power of attorney, shall make the living will, medical power of attorney or a copy of either or a revocation of either a part of the principal's medical records.
(e) At the time of admission to any health care facility, each person shall be advised of the existence and availability of living will and medical power of attorney forms and shall be given assistance in completing such forms if the person desires: Provided, That under no circumstances may admission to a health care facility be predicated upon a person having completed either a medical power of attorney or living will.
(f) The provision of living will or medical power of attorney forms substantially in compliance with this article by health care providers, medical practitioners, social workers, social service agencies, senior citizens centers, hospitals, nursing homes, personal care homes, community care facilities or any other similar person or group, without separate compensation, does not constitute the unauthorized practice of law.
(g) The living will may, but need not, be in the following form, and may include other specific directions not inconsistent with other provisions of this article. Should any of the other specific directions be held to be invalid, such invalidity shall not affect other directions of the living will which can be given effect without the invalid direction and to this end the directions in the living will are severable.
STATE OF WEST VIRGINIA

LIVING WILL
Living will made this day of _______________(month, year).
I,___________________________________________________, being of sound mind, willfully and voluntarily declare that I want my wishes to be respected if I am very sick and not able to communicate my wishes for myself. In the absence of my ability to give directions regarding the use of life-prolonging medical intervention, it is my desire that my dying shall not be prolonged under the following circumstances:
 If I am very sick and not able to communicate my wishes for myself and I am certified by one physician who has personally examined me, to have a terminal condition or to be in a persistent vegetative state (I am unconscious and am neither aware of my environment nor able to interact with others,) I direct that life-prolonging medical intervention that would serve solely to prolong the dying process or maintain me in a persistent vegetative state be withheld or withdrawn. I want to be allowed to die naturally and only be given medications or other medical procedures necessary to keep me comfortable. I want to receive as much medication as is necessary to alleviate my pain.
I give the following SPECIAL DIRECTIVES OR LIMITATIONS: (Comments about tube feedings, breathing machines, cardiopulmonary resuscitation, dialysis and mental health treatment may be placed here. My failure to provide special directives or limitations does not mean that I want or refuse certain treatments.)

It is my intention that this living will be honored as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences resulting from such refusal.
I understand the full import of this living will.

Signed




 Address
I did not sign the principal's signature above for or at the direction of the principal. I am at least eighteen years of age and am not related to the principal by blood or marriage, entitled to any portion of the estate of the principal to the best of my knowledge under any will of principal or codicil thereto, or directly financially responsible for principal's medical care. I am not the principal's attending physician or the principal's medical power of attorney representative or successor medical power of attorney representative under a medical power of attorney.

Witness
DATE



Witness
DATE

STATE OF


COUNTY OF

I, , a Notary Public of said County, do certify that , as principal, and
and , as witnesses, whose names are signed to the writing above bearing date on the day of , 2000 20 ,have this day acknowledged the same before me.
Given under my hand this day of , 2000 20__.
My commission expires:

Signature of Notary Public
(h) A medical power of attorney may, but need not, be in the following form, and may include other specific directions not inconsistent with other provisions of this article. Should any of the other specific directions be held to be invalid, such invalidity shall not affect other directions of the medical power of attorney which can be given effect without invalid direction and to this end the directions in the medical power of attorney are severable.
STATE OF WEST VIRGINIA

MEDICAL POWER OF ATTORNEY

 Dated: _____________________________ , 20______
I,____________________________________________________, hereby
(Insert your name and address)
appoint as my representative to act on my behalf to give, withhold or withdraw informed consent to health care decisions in the event that I am not able to do so myself.
The person I choose as my representative is:
(Insert the name, address, area code and telephone number of the person you wish to designate as your representative)
The person I choose as my successor representative is:

If my representative is unable, unwilling or disqualified to serve, then I appoint:
(Insert the name, address, area code and telephone number of the person you wish to designate as your successor representative)

This appointment shall extend to, but not be limited to, health care decisions relating to medical treatment, surgical treatment, nursing care, medication, hospitalization, care and treatment in a nursing home or other facility, and home health care. The representative appointed by this document is specifically authorized to be granted access to my medical records and other health information and to act on my behalf to consent to, refuse or withdraw any and all medical treatment or diagnostic procedures, or autopsy if my representative determines that I, if able to do so, would consent to, refuse or withdraw such treatment or procedures. Such authority shall include, but not be limited to, decisions regarding the withholding or withdrawal of life-prolonging interventions.
 I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect the health care decisions that I would make if I were able to do so, and because I also believe that this person will act in my best interest when my wishes are unknown. It is my intent that my family, my physician and all legal authorities be bound by the decisions that are made by the representative appointed by this document, and it is my intent that these decisions should not be the subject of review by any health care provider or administrative or judicial agency.
 It is my intent that this document be legally binding and effective and that this document be taken as a formal statement of my desire concerning the method by which any health care decisions should be made on my behalf during any period when I am unable to make such decisions.
In exercising the authority under this medical power of attorney, my representative shall act consistently with my special directives or limitations as stated below.
I am giving the following SPECIAL DIRECTIVES OR LIMITATIONS ON THIS POWER: (Comments about tube feedings, breathing machines, cardiopulmonary resuscitation and dialysis may be placed here. My failure to provide special directives or limitations does not mean that I want or refuse certain treatments.)
THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT TO MY OWN MEDICAL CARE.
 _______________________________
 Signature of the Principal
I did not sign the principal's signature above. I am at least eighteen years of age and am not related to the principal by blood or marriage. I am not entitled to any portion of the estate of the principal or to the best of my knowledge under any will of the principal or codicil thereto, or legally responsible for the costs of the principal's medical or other care. I am not the principal's attending physician, nor am I the representative or successor representative of the principal.

Witness:
DATE



Witness:
DATE




STATE OF


 COUNTY OF

I, ________________________________, a Notary Public of said
County, do certify that_________________________________________, as principal, and ____________________ and __________________, as witnesses, whose names are signed to the writing above bearing date on the ____________ day of _____________, 20_____, have this day acknowledged the same before me.
Given under my hand this __________ day of _____________, 20____.
My commission expires:__________________________________________.
__________________________________________
Notary Public
§16-30-5. Applicability and resolving actual conflict between advance directives.

(a) The provisions of this article which directly conflict with the written directives contained in a living will or medical power of attorney executed prior to the effective date of this statute shall not apply. An expressed directive contained in a living will or medical power of attorney or by any other means the health care provider determines to be reliable shall be followed.
(b) If there is a conflict between the person's expressed directives, the physician orders for scope of treatment form and the decisions of the medical power of attorney representative or surrogate, the person's expressed directives shall be followed.
(c) In the event there is a conflict between two advance directives executed by the person, the one most recently completed takes precedence only to the extent needed to resolve the inconsistency.
(d) If there is a conflict between the decisions of the medical power of attorney representative or surrogate and the person's best interests as determined by the attending physician when the person's wishes are unknown, the attending physician shall attempt to resolve the conflict by consultation with a qualified physician, an ethics committee, or by some other means. If the attending physician cannot resolve the conflict with the medical power of attorney representative, the attending physician may transfer the care of the person pursuant to subsection (b), section twelve of this article.
§16-30-7. Determination of incapacity.

(a) For the purposes of this article, a person may not be presumed to be incapacitated merely by reason of advanced age or disability. With respect to a person who has a diagnosis of mental illness or mental retardation, such a diagnosis is not a presumption that the person is incapacitated. A determination that a person is incapacitated shall be made by the attending physician, a qualified physician, a qualified psychologist or an advanced practice nurse practitioner in collaboration with a physician provided that the advanced practice nurse who has personally examined the person.
(b) The determination of incapacity shall be recorded contemporaneously in the person's medical record by the attending physician, a qualified physician, advanced practice nurse practitioner or a qualified psychologist. The recording shall state the basis for the determination of incapacity, including the cause, nature and expected duration of the person's incapacity, if these are known.
(c) If the person is conscious, the attending physician shall inform the person that he or she has been determined to be incapacitated and that a medical power of attorney representative or surrogate decision maker may be making decisions regarding life-prolonging intervention or mental health treatment for the person.
§16-30-8. Selection of a surrogate.
(a) When a person is or becomes incapacitated, the attending physician or the advanced practice nurse practitioner in collaboration with the attending physician, with the assistance of other health care providers as necessary, shall select, in writing, a surrogate. The attending physician or advanced nurse practitioner shall reasonably attempt to determine whether the incapacitated person has appointed a representative under a medical power of attorney in accordance with the provisions of section four of this article, or if the incapacitated person has a court- appointed guardian in accordance with the provisions of article one, chapter forty-four-a of this code. If no representative or court-appointed guardian is authorized or capable and willing to serve, the attending physician or advanced practice nurse practitioner is authorized to select a health care surrogate. In selecting a surrogate, the attending physician or advanced practice nurse practitioner must make a reasonable inquiry as to the existence and availability of a surrogate from the following persons:
(1) The person's spouse;
(2) The person's adult children;
(3) The person's parents;
(4) The person's adult siblings;
(5) The person's adult grandchildren;
(6) The person's close friends;
(7) Any other person or entity, including, but not limited to, public agencies, public guardians, public officials, public and private corporations and other persons or entities which the department of health and human resources may from time to time designate in rules promulgated pursuant to chapter twenty-nine-a of this code.
(b) After inquiring about the existence and availability of a medical power of attorney representative or a guardian as required by subsection (a) of this section, and determining that such persons either do not exist or are unavailable, incapable or unwilling to serve as a surrogate, the attending physician or an advanced practice nurse practitioner in collaboration with the attending physician shall select and rely upon a surrogate in the order of priority set forth in subsection (a) of this section, subject to the following conditions:
(1) Where there are multiple possible surrogate decision makers at the same priority level, the attending physician or the advanced practice nurse practitioner in collaboration with the attending physician shall, after reasonable inquiry, select as the surrogate the person who reasonably appears to be best qualified. The following criteria shall be considered in the determination of the person or entity best qualified to serve as the surrogate:
(A) Whether the proposed surrogate reasonably appears to be better able to make decisions either in accordance with the known wishes of the person or in accordance with the person's best interests;
(B) The proposed surrogate's regular contact with the person prior to and during the incapacitating illness;
(C) The proposed surrogate's demonstrated care and concern;
(D) The proposed surrogate's availability to visit the incapacitated person during his or her illness; and
(E) The proposed surrogate's availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process;
(2) The attending physician or the advanced practice nurse practitioner in consultation with the attending physician may select a proposed surrogate who is ranked lower in priority if, in his or her judgment, that individual is best qualified, as described in this section, to serve as the incapacitated person's surrogate. The attending physician or the advanced practice nurse practitioner shall document in the incapacitated person's medical records his or her reasons for selecting a surrogate in exception to the priority order provided in subsection (a) of this section.
(c) The surrogate is authorized to make health care decisions on behalf of the incapacitated person without a court order or judicial involvement.
(d) A health care provider or health care facility may rely upon the decisions of the selected surrogate if the provider believes, after reasonable inquiry, that:
(1) A guardian or representative under a valid, applicable medical power of attorney is unavailable, incapable or is unwilling to serve;
(2) There is no other applicable advance directive;
(3) There is no reason to believe that such health care decisions are contrary to the incapacitated person's religious beliefs; and
(4) The attending physician or advanced practice nurse practitioner has not received actual notice of opposition to any health care decisions made pursuant to the provisions of this section.
(e) If a person who is ranked as a possible surrogate pursuant to subsection (a) of this section wishes to challenge the selection of a surrogate or the health care decision of the selected surrogate, he or she may seek injunctive relief or may file a petition for review of the selection of, or decision of, the selected surrogate with the circuit court of the county in which the incapacitated person resides or the supreme court of appeals. There shall be a rebuttable presumption that the selection of the surrogate was valid, and the person who is challenging the selection shall have the burden of proving the invalidity of that selection. The challenging party shall be responsible for all court costs and other costs related to the proceeding, except attorneys' fees, unless the court finds that the attending physician or advanced practice nurse practitioner acted in bad faith, in which case the person so acting shall be responsible for all costs. Each party shall be responsible for his or her own attorneys' fees.
(f) If the attending physician or advanced practice nurse practitioner is advised that a person who is ranked as a possible surrogate pursuant to the provisions of subsection (a) of this section has an objection to a health care decision to withhold or withdraw a life-prolonging intervention which has been made by the selected surrogate, the attending physician or advanced practice nurse practitioner shall document the objection in the medical records of the patient. Once notice of an objection or challenge is documented, the attending physician or advanced practice nurse practitioner shall notify the challenging party that the decision shall be implemented in seventy-two hours unless the attending physician receives a court order prohibiting or enjoining the implementation of the decision as provided in subsection (e) of this section. In the event that the incapacitated person has been determined to have undergone brain death and the selected surrogate has authorized organ or tissue donation, the decision shall be implemented in twenty-four hours unless the attending physician receives a court order prohibiting or enjoining the implementation of the decision as provided in subsection (e) of this section.
(g) If the surrogate becomes unavailable for any reason, the surrogate may be replaced by applying the provisions of this section.
 (h) If a person who ranks higher in priority relative to a selected surrogate becomes available and willing to be the surrogate, the person with higher priority may be substituted for the identified surrogate unless the attending physician determines that the lower ranked person is best qualified to serve as the surrogate.
 (i) The following persons may not serve as a surrogate: (1) A treating health care provider of the principal person who is incapacitated; (2) an employee of a treating health care provider not related to the principal person who is incapacitated; (3) an owner, operator or administrator of a health care facility serving the principal person who is incapacitated; or (4) any person who is an employee of an owner, operator or administrator of a health care facility serving the person who is incapacitated and who is not related to the principal that person.
§16-30-10. Reliance on authority of living will, physician orders for scope of treatment form, medical power of attorney representative or surrogate decision maker and protection of health care providers.

(a) A physician, licensed health care professional, health care facility or employee thereof shall not be subject to criminal or civil liability for good-faith compliance with or reliance upon the directions of the medical power of attorney representative in accordance with this article.
(b) A health care provider shall not be subject to civil or criminal liability for surrogate selection or good faith compliance and reliance upon the directions of the surrogate in accordance with the provisions of this article.
(c) A health care provider, health care facility or employee thereof shall not be subject to criminal or civil liability for good-faith compliance with or reliance upon the orders in a physician orders for scope of treatment form.
(c) (d) No health care provider or employee thereof who in good faith and pursuant to reasonable medical standards causes or participates in the withholding or withdrawing of life-prolonging intervention from a person pursuant to a living will made in accordance with this article shall, as a result thereof, be subject to criminal or civil liability.
(d) (e) An attending physician who cannot comply with the living will or medical power of attorney of a principal pursuant to this article shall, in conjunction with the medical power of attorney representative, health care surrogate or other responsible person, effect the transfer of the principal to another physician who will honor the living will or medical power of attorney of the principal. Transfer under these circumstances does not constitute abandonment.
§16-30-13. Interinstitutional transfers.
(a) In the event that a person admitted to any health care facility in this state has been determined to lack capacity and that person's medical power of attorney has been declared to be in effect or a surrogate decision maker has been selected for that person all in accordance with the requirements of this article, and that person is subsequently transferred from one health care facility to another, the receiving health care facility may rely upon the prior determination of incapacity and the activation of the medical power of attorney or selection of a surrogate decision maker as valid and continuing until such time as an attending physician, a qualified physician, a qualified psychologist or advanced practice nurse practitioner in collaboration with a physician in the receiving facility assesses the person's capacity. Should the reassessment by the attending physician, a qualified physician, a qualified psychologist or an advanced practice nurse practitioner in collaboration with a physician of the person at the receiving facility result in a determination of continued incapacity, the receiving facility may rely upon the medical power of attorney representative or surrogate decision maker who provided health care decisions at the transferring facility to continue to make all health care decisions at the receiving facility until such time as the person regains capacity.
(b) If a person admitted to any health care facility in this state has been determined to lack capacity and the person's medical power of attorney has been declared to be in effect or a surrogate decision maker has been selected for that person all in accordance with the requirements of this article, and that person is subsequently discharged home in the care of a home health care agency or hospice, the home health care agency or hospice may rely upon the prior determination of incapacity. The home health care agency or hospice may rely upon the medical power of attorney representative or health care surrogate who provided health care decisions at the transferring facility to continue to make all health care decisions until such time as the person regains capacity.
(b) (c) If a person with an order to withhold or withdraw life-prolonging intervention is transferred from one health care facility to another, the existence of such order shall be communicated to the receiving facility prior to the transfer, and the written order shall accompany the person to the receiving facility and shall remain effective until a physician at the receiving facility issues admission orders.
(d) If a person with a physician orders for scope of treatment form is transferred from one health care facility to another, the health care facility initiating the transfer shall communicate the existence of the physician orders for scope of treatment form to the receiving facility prior to the transfer. The physician orders for scope of treatment form shall accompany the person to the receiving facility and shall remain in effect. The form shall be kept at the beginning of the patient's transfer records unless otherwise specified in the health care facility's policy and procedures. After admission, the physician orders for scope of treatment form shall be reviewed by the attending physician and one of three actions shall be taken:
(1) The physician orders for scope of treatment shall be continued without change;
(2) The physician orders for scope of treatment form shall be voided and a new form issued; or
(3) The physician orders for scope of treatment form shall be voided without a new form being issued.
§16-30-22. Liability for failure to act in accordance with the directives of a living will or medical power of attorney or the directions of a medical power of attorney representative or health care surrogate.

(a) A health care provider or health care facility who does not have without actual knowledge of a living will or medical power of attorney completed by a person is not civilly or criminally liable for failing to act in accordance with the directives of a principal's living will or medical power of attorney.
(b) A health care provider or a health care facility is subject to review and disciplinary action by the appropriate licensing board for failing to act in accordance with a principal's directives in a living will or medical power of attorney, or the decisions of a medical power of attorney representative or health care surrogate: Provided, That provided that the provider or facility had actual knowledge of the directives or decisions.
(c) Once a principal has been determined to be incapacitated in accordance with the provisions of this article and his or her living will or medical power of attorney has become effective, any health care provider or health care facility which refuses to follow the principal's directives in a living will or medical power of attorney or the decisions of a medical power of attorney representative or health care surrogate, because the principal has asked the health care provider or health care facility not to follow such directions or decisions, shall have two physicians, one of whom may be the attending physician, or one physician and a qualified psychologist, or one physician and an advanced practice nurse practitioner , in collaboration with a physician, certify that the principal has regained capacity to make the request. If such certification occurs, the provisions of the applicable living will or medical power of attorney, or the statute creating the authority of the health care surrogate shall not apply because the principal has regained decision-making capacity.
§16-30-25. Physician orders for scope of treatment form.
(a) No later than the first day of July, two thousand three, the secretary of the department of health and human resources shall implement the statewide distribution of standardized physician orders for scope of treatment (POST) forms.
(b) Physician orders for scope of treatment forms shall be standardized forms used to reflect orders by a qualified physician for medical treatment of a person in accordance with that person's wishes or, if that person's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with that person's best interest. The form shall be bright pink in color to facilitate recognition by emergency medical services personnel and other health care providers and shall be designed to provide for information regarding the care of the patient, including, but not limited to, the following:
(1) The orders of a qualified physician regarding cardiopulmonary resuscitation, level of medical intervention in the event of a medical emergency, use of antibiotics and use of medically administered fluids and nutrition and the basis for the orders;
(2) The signature of the qualified physician;
(3) Whether the person has completed an advance directive or had a guardian, medical power of attorney representative or surrogate appointed;
(4) The signature of the person or his or her guardian, medical power of attorney representative, or surrogate acknowledging agreement with the orders of the qualified physician; and
(5) The date, location and outcome of any review of the physician orders for scope of treatment form.
 (c) The physician orders for scope of treatment form shall be kept as the first page in a person's medical record in a health care facility unless otherwise specified in the health care facility's policies and procedures and shall be transferred with the person from one health care facility to another.
ARTICLE 30C. DO NOT RESUSCITATE ACT.

§16-30C-3. Definitions.

As used in this article, unless the context clearly requires otherwise, the following definitions apply:
(a) "Attending physician" means the physician selected by or assigned to the person who has primary responsibility for treatment or care of the person and who is a licensed physician. If more than one physician shares that responsibility, any of those physicians may act as the attending physician under the provisions of this article.
(b) "Cardiopulmonary resuscitation" means those measures used to restore or support cardiac or respiratory function in the event of a cardiac or respiratory arrest.
(c) "Do not resuscitate identification" means a standardized identification necklace, bracelet, or card, or physician orders for scope of treatment form as set forth in this article that signifies that a do not resuscitate order has been issued for the possessor.
(d) "Do not resuscitate order" means an order issued by a licensed physician that cardiopulmonary resuscitation should not be administered to a particular person.
(e) "Emergency medical services personnel" means paid or volunteer firefighters, law-enforcement officers, emergency medical technicians, paramedics, or other emergency services personnel, providers or entities, acting within the usual course of their professions.
(f) "Health care decision" means a decision to give, withhold, or withdraw informed consent to any type of health care including, but not limited to, medical and surgical treatments, including life-prolonging interventions, nursing care, hospitalization, treatment in a nursing home or other extended care facility, home health care, and the gift or donation of a body organ or tissue.
(g) "Health care facility" means a facility established to administer and provide health care services and which is commonly known by a wide variety of titles, including, but not limited to, hospitals, medical centers, ambulatory health care facilities, physicians' offices and clinics, extended care facilities operated in connection with hospitals, nursing homes, and extended care facilities operated in connection with rehabilitation centers.
(h) "Health care provider" means any physician, dentist, nurse, paramedic, psychologist or other person providing medical, dental, nursing, psychological or other health care services of any kind.
(i) "Home" means any place of residence other than a health care facility and includes residential board and care homes and personal care homes.
(j) "Incapacity" or words of like import, means the inability because of physical or mental impairment, to appreciate the nature and implications of a health care decision, to make an informed choice regarding the alternatives presented and to communicate that choice in an unambiguous manner.
(k) "Physician orders for scope of treatment (POST) form" means a standardized form containing orders by a qualified physician that details a person's life-sustaining wishes as provided by section twenty-five, article thirty of this chapter.
 (l) "Qualified physician" means a physician licensed to practice medicine who has personally examined the person.
(k) (m) "Representative" means a person designated by a principal to make health care decisions in accordance with article thirty-a of this chapter.
(l) (n) "Surrogate decision-maker" or "surrogate" means a person or persons an individual eighteen years of age or older over eighteen years of age with mental capacity who is reasonably available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions, and is identified or selected by the attending physician or advanced nurse practitioner in accordance with applicable provisions of article thirty, chapter sixteen of this code as the person or persons who is to make decisions pursuant to this article: Provided, That a representative named in the incapacitated person's medical power of attorney, if such document has been completed, shall have priority over a surrogate decision- maker.
(m) (o) "Trauma" means blunt or penetrating bodily injuries from impact which occur in situations including, but not limited to, motor vehicle collisions, mass casualty incidents and industrial accidents.
§16-30C-5. Presumed consent to cardiopulmonary resuscitation; health care facilities not required to expand to provide cardiopulmonary resuscitation.

(a) Every person shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless one or more of the following conditions, of which the health care provider has actual knowledge, apply:
(1) A do not resuscitate order in accordance with the provisions of this article has been issued for that person;
(2) A completed living will for that person is in effect, pursuant to the provisions of article thirty of this chapter, and the person is in a terminal condition or a persistent vegetative state; or
(3) A completed medical power of attorney for that person is in effect, pursuant to the provisions of article thirty of this chapter, in which the person indicated that he or she does not wish to receive cardiopulmonary resuscitation, or his or her representative has determined that the person would not wish to receive cardiopulmonary resuscitation.
(4) A completed physician orders for scope of treatment form in which a qualified physician has ordered do not resuscitate.
(b) Nothing in this article shall require a nursing home, personal care home, hospice, or extended care facility operated in connection with hospitals to institute or maintain the ability to provide cardiopulmonary resuscitation or to expand its existing equipment, facilities or personnel to provide cardiopulmonary resuscitation: Provided, That if a health care facility does not provide cardiopulmonary resuscitation, this policy shall be communicated in writing to the person, representative or surrogate decision maker prior to admission.
§16-30C-6. Issuance of a do not resuscitate order; order to be written by a physician.

(a) It shall be lawful for the An attending physician may to issue a do not resuscitate order for persons who are present in or residing at home or in a health care facility, provided that if the person, representative, or surrogate has consented to the order. A do not resuscitate order shall be issued in writing in the form as described in this section for a person not present or residing in a health care facility. For persons present in health care facilities, a do not resuscitate order shall be issued in accordance with the policies and procedures of the health care facility or in accordance with the provisions of this article.
(b) Persons may request their physicians to issue do not resuscitate orders for them.
(c) The representative or surrogate decision-maker may consent to a do not resuscitate order for a person with incapacity. A do not resuscitate order written by a physician for a person with incapacity with the consent of the representative or surrogate decision-maker is valid and shall be respected by health care providers.
(d) A parent may consent to a do not resuscitate order for his or her minor child, provided that a second physician who has examined the child concurs with the opinion of the attending physician that the provision of cardiopulmonary resuscitation would be contrary to accepted medical standards. If the minor is between the ages of sixteen and eighteen, and in the opinion of the attending physician, the minor is of sufficient maturity to understand the nature and effect of a do not resuscitate order, then no such order shall be valid without the consent of such minor. In the event of a conflict between the wishes of the parents or guardians and the wishes of the mature minor, the wishes of the mature minor shall prevail. For purposes of this section, no minor less than sixteen years of age shall be considered mature. Nothing in this article shall be interpreted to conflict with the provisions of the Child Abuse Prevention and Treatment Act and implementing regulations at 45 CFR 1340. In the event conflict is unavoidable, federal law and regulation shall govern.
(e) If a surrogate decision-maker is not reasonably available or capable of making a decision regarding a do not resuscitate order, an attending physician may issue a do not resuscitate order for a person with incapacity in a health care facility: Provided, That a second physician who has personally examined the person concurs in the opinion of the attending physician that the provision of cardiopulmonary resuscitation would be contrary to accepted medical standards.
(f) For persons not present or residing in a health care facility, the do not resuscitate order shall be noted on a physician orders for scope of treatment form or in the following form on a card suitable for carrying on the person:
Do Not Resuscitate Order

"As treating physician of and a licensed physician, I order that this person SHALL NOT BE RESUSCITATED in the event of cardiac or respiratory arrest. This order has been discussed with or his/her representative or his/her surrogate decision-maker who has given consent as evidenced by his/her signature below.
Physician Name Physician Signature Address Person Signature Address Surrogate Decision-maker Signature Address (g) For persons residing in a health care facility, the do not resuscitate order shall be reflected in at least one of the following forms:
(1) Forms required by the policies and procedures of the health care facility;
(2) The do not resuscitate card as set forth in subsection (f) of this section; or
(3) The physician orders for scope of treatment form.
§16-30C-7. Compliance with a do not resuscitate order.

(a) Health care providers shall comply with the do not resuscitate order when presented with one of the following:
(1) A do not resuscitate order completed by a physician on a form as specified in section six of this article;
(2) Do not resuscitate identification as set forth in section thirteen of this article; or
(3) A do not resuscitate order for a person present or residing in a health care facility issued in accordance with the health care facility's policies and procedures; or
(4) A physician orders for scope of treatment form in which a qualified physician has documented a do not resuscitate order.
(b) Pursuant to this article, health care providers shall respect do not resuscitate orders for persons in health care facilities, ambulances, homes and communities within this state.
§16-30C-11. Interinstitutional transfers.

If a person with a do not resuscitate order is transferred from one health care facility to another health care facility, the health care facility initiating the transfer shall communicate the existence of a do not resuscitate order shall be communicated to the receiving facility prior to the transfer., and The written do not resuscitate order, the do not resuscitate card as described in section six of this article or the physician orders for scope of treatment form shall accompany the person to the health care facility receiving the person and shall remain effective until a physician at the receiving facility issues admission orders. The do not resuscitate card or the physician orders for scope of treatment form shall be kept as the first page in the person's transfer records.
§16-30C-13. Do not resuscitate order form; do not resuscitate identification; public education.

(a) The secretary of the department of health and human resources, no later than one year after the passage of this article, the first day of July, one thousand nine hundred ninety-four, shall implement the statewide distribution of do not resuscitate forms as described in section six of this article.
(b) Do not resuscitate identification as set forth in this article shall may consist of either a medical condition bracelet or necklace with the inscription of the patient's name, date of birth in numerical form, and "WV do not resuscitate" on it. No other identification or wording shall be deemed to comply with the provisions of this article. Such identification shall be issued only upon presentation of a properly executed do not resuscitate order form as set forth in section six of this article, a physician orders for scope of treatment form in which a qualified physician has documented a do not resuscitate order, or a do not resuscitate order properly executed in accordance with a health care facility's written policy and procedure.
(c) The secretary of the department of health and human resources, no later than one year after the passage of this article, the first day of July, one thousand nine hundred ninety-four, shall be responsible for establishing a system for the distribution of the do not resuscitate identification bracelets and necklaces.
(d) The secretary of the department of health and human resources, no later than one year after the passage of this article, the first day of July, one thousand nine hundred ninety-four, shall develop and implement a statewide educational effort to inform the public of their right to accept or refuse cardiopulmonary resuscitation and to request their physician to write a do not resuscitate order for them.