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SPONSOR: Sen. Pinkney & Rep. Kamela Smith
Reps. Lambert, Morrison, Snyder-Hall
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 274
AN ACT TO AMEND TITLE 16 AND TITLE 21 OF THE DELAWARE CODE RELATING TO DELAWARE
MEDICAL ORDERS FOR SCOPE OF TREATMENT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
1 Section 1. Amend Chapter 25A, Title 16 of the Delaware Code by making deletions as shown by strike through
2 and insertions as shown by underline as follows and redesignating accordingly:
3 Chapter 25A. DELAWARE MEDICAL PORTABLE ORDERS FOR SCOPE OF LIFE-SUSTAINING
4 TREATMENT ACT
5 § 2501A. Short title.
6 This chapter shall be known and may be cited as the “Delaware Medical Orders for Scope of Treatment Act”
7 (“DMOST Act”). “Delaware Portable Orders for Life-Sustaining Treatment Act” or “Delaware POLST Act”.
8 § 2502A. Statement of purpose.
9 (b) An adult individual with decision-making capacity has the right to plan ahead for health-care decisions through
10 an advance health-care directive pursuant to under Chapter 25 of this title, or through a DMOST POLST form pursuant to
11 under this chapter or both, and to have the wishes expressed in those documents respected, subject to certain limitations, in
12 order to ensure that the right to control decisions about one’s own health care is not lost if a patient loses decision-making
13 capacity and is not able to participate actively in making the patient’s own decisions, either temporarily or permanently.
14 (d) The DMOST POLST form is separate from and is not an advance health-care directive. It expresses an
15 individual’s wishes regarding scope of treatment through medical orders. The DMOST POLST form does not require an
16 advance health-care directive.
17 (e) Data reveal shows that many individuals may reside or be situated in multiple locations such as home, acute
18 care, and post-acute care settings near the end of life. Changes in such settings require that an easily understood,
19 standardized, portable document be available to communicate the individual’s care preferences. A DMOST POLST form
20 provides such a document.
21 § 2503A. Definitions.
22 For purposes of this chapter:
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23 (3) “Delaware Medical Orders for Scope of Treatment” or “DMOST” “Delaware Portable Orders for Life-
24 Sustaining Treatment” or “POLST” means a clinical process to facilitate communication between health-care
25 professionals and patients living with serious illness or frailty whose health-care practitioner would not be surprised if
26 they died within the next year or, if the patient lacks decision-making capacity, the patient’s authorized representative.
27 The process encourages shared, informed medical decision-making. The result is a DMOST POLST form, which
28 contains portable medical orders that respect the patient’s goals for care in regard to the use of CPR and other medical
29 interventions. The DMOST POLST form is applicable across health-care settings, is reviewable, and is revocable.
30 (5) “DMOST form” means a standardized document created or approved by the Department that is uniquely
31 identifiable and has a uniform format or color, which:
32 a. Is used on a voluntary basis by patients living with serious illness or frailty whose health-care
33 practitioner would not be surprised if they died within the next year;
34 b. Is not an advance health-care directive;
35 c. Is not valid unless it meets the requirements for a completed DMOST form as set forth in this chapter;
36 d. Is intended to provide direction to emergency care personnel regarding the use of emergency care and
37 to health-care providers regarding the use of life-sustaining treatment by indicating the patient’s preference
38 concerning the scope of treatment, the use of specified interventions, and the intensity of treatment for each
39 intervention;
40 e. Is intended to accompany the patient, and to be honored by all personnel attending the patient, across
41 the full range of possible health-care settings, including but not limited to the patient’s home, a health-care
42 institution, at the scene of a medical emergency, or during transport;
43 f. May be reviewed or voided at any time by a patient with decision-making capacity or, if the patient
44 lacks decision-making capacity, the patient’s representative in accordance with the provisions of § 2511A of this
45 title; and
46 g. Must be signed by a health-care practitioner.
47 (8) (7) “Health-care practitioner” means a physician or an individual licensed and authorized to write medical
48 orders under Title 24 who is providing care for the patient or overseeing the health care provided to a patient and has
49 completed all training required by the Department for individuals participating in the completion of a DMOST POLST
50 form. Over time, a patient’s health-care practitioner may change.
51 (12) (11) “Patient’s authorized representative” or “authorized representative” means the individual signing a
52 DMOST POLST form on behalf of a patient without decision-making capacity, who has the highest priority to act for
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53 the patient under law, and who has the authority to make decisions with respect to the patient’s health-care preferences
54 being made on the DMOST POLST form such individual is executing on behalf of the patient. The health-care
55 practitioner shall determine the individual who is the patient’s authorized representative by referencing the
56 documentation giving such individual the required authority under law. The regulations implementing this chapter shall
57 explain the priority set by law regarding who can act as an authorized representative. Based on the documentation
58 provided by such individual as evidence of that individual’s authority, the patient’s authorized representative could be
59 an agent designated by a patient under an advance health-care directive, a guardian of the person appointed pursuant to
60 Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court, a default surrogate
61 under Chapter 25 of this title, or an individual who is otherwise authorized under applicable law to make the health-
62 care decisions being made by execution of the DMOST POLST form on the patient’s behalf, if the patient lacks
63 decision-making capacity.
64 (13) “POLST form” means a standardized document created or approved by the Department that is uniquely
65 identifiable, has a uniform format or color, and is all of the following:
66 a. Used on a voluntary basis by patients living with serious illness or frailty whose health-care
67 practitioner would not be surprised if they died within the next year.
68 b. Not an advance health-care directive.
69 c. Not valid unless it meets the requirements for a POLST form under this chapter.
70 d. A medical order that provides directions to emergency care personnel regarding the use of emergency
71 care and to health-care providers regarding the use of life-sustaining treatment by indicating the patient’s
72 preference concerning the scope of treatment, the use of specified interventions, and the intensity of treatment for
73 each intervention.
74 e. Intended to accompany the patient, and to be honored by all personnel attending the patient, across the
75 full range of possible health-care settings, including the patient’s home, a health-care institution, at the scene of a
76 medical emergency, or during transport.
77 f. Reviewable or voidable at any time by a patient with decision-making capacity or, if the patient lacks
78 decision-making capacity, the patient’s representative.
79 g. Signed by a health-care practitioner.
80 § 2504A. Duty of patient’s authorized representative.
81 (a) At such time as a patient lacks decision-making capacity, the patient’s authorized representative shall make a
82 health-care decision to treat, withdraw, or withhold treatment in accordance with the patient’s individual instructions as
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83 expressed in an advance health-care directive or DMOST POLST form, if any, and other wishes to the extent known, or, if
84 a guardian appointed pursuant to under Chapters 39 and 39A of Title 12, in accordance with the authority granted by the
85 appointing court. The patient’s authorized representative shall have the power to make any health-care decision authorized
86 under this chapter unless limited by the order of a court of competent jurisdiction or limited in the document provided by
87 the authorized representative as evidence of that authorized representative’s authority.
88 § 2505A. Powers and duties of Department of Health and Social Services.
89 (a) The Secretary is authorized to promulgate regulations and develop protocols to fulfill the following
90 responsibilities:
91 (1) Promulgation of a DMOST POLST form and development of the process for completion, modification,
92 and revocation of the DMOST POLST form including training requirements.
93 (2) Promotion of awareness through outreach and education, including a website, to health-care practitioners,
94 health-care providers, emergency-care providers, and the general public about the option to complete a DMOST
95 POLST form.
96 (3) Training of emergency-care providers about the use and application of a DMOST POLST form.
97 (4) Development of additional requirements for the completion of a DMOST POLST form that may be
98 applicable in the case of a patient with mental illness or a developmental disability in consultation with organizations
99 that represent individuals with mental illness or development disabilities, respectively.
100 (5) Ongoing evaluation of the design and use of DMOST POLST forms.
101 (6) Collect data on the use of DMOST POLST forms, including impact on different groups of stakeholders.
102 (c) The Department shall maintain a DMOST POLST program to effectively implement this chapter. In addition to
103 the responsibilities under subsection (a) of this section, the DMOST POLST program must do all of the following:
104 (2) Staff and work with the DMOST Delaware POLST Steering Committee under § 2521A of this title to
105 evaluate and improve the use of DMOST POLST forms.
106 § 2507A. Delaware Health Information Network.
107 The Delaware Health Information Network (DHIN) shall maintain an electronic registry to maintain and store
108 executed DMOST POLST forms and make them available to emergency-care providers, health-care providers, and health-
109 care institutions.
110 § 2508A. Obligation to treat.
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111 A health-care practitioner, health-care provider, health-care institution, or emergency-care provider shall treat a
112 patient who has a completed DMOST POLST form in accordance with the directions and options indicated in such
113 DMOST POLST form, except as otherwise provided in under this chapter.
114 § 2509A. Mandatory elements of DMOST POLST forms.
115 A DMOST POLST form shall be deemed to be completed and therefore valid for the purposes of this chapter if it:
116 it complies with all of the following:
117 (1) Contains information indicating a the patient’s health-care preferences; preferences and directions.
118 (2) Has been voluntarily signed signed, after discussion with a health-care practitioner, by a the patient or by
119 another individual subscribing the patient’s name in the patient’s presence and at the patient’s express direction, or, if
120 the patient does not have decision-making capacity, by the patient’s authorized representative; representative.
121 (3) Contains a statement that the DMOST POLST form is being signed after discussion with by the patient, or
122 the patient’s authorized representative; representative, after discussion with a health-care provider.
123 (4) Includes the signature of the patient’s health-care practitioner and the date of the health-care practitioner’s
124 signature; signature.
125 (5) If the DMOST POLST form is not signed by the heath-care practitioner in the presence of the patient, the
126 DMOST POLST form will be signed by the individual in whose presence the patient or the patient’s authorized
127 representative signed the DMOST form; POLST form.
128 (6) The DMOST POLST form shall include a statement that the patient or, if the patient does not have
129 decision-making capacity, the patient’s authorized representative, has been provided with a plain language statement
130 explaining the DMOST POLST form and the consequences of executing the DMOST form, including whether or not
131 the DMOST POLST form may be changed if the patient lacks decision-making capacity; and POLST form.
132 § 2510A. Recognition of medical orders from other states.
133 A document executed in another state, which meets the state is valid for the purposes of this chapter to the same
134 extent as a POLST form that is valid under this chapter, if the document meets any of the following:
135 (1) The requirements of under this chapter for a DMOST form or the POLST form.
136 (2) The requirements of the state where such the document was executed or executed.
137 (3) The requirements of the state where the patient was a resident at the time the document was executed, shall
138 be deemed to be valid for the purposes of this chapter to the same extent as a DMOST form valid under this chapter.
139 executed.
140 § 2511A. Modification or revocation of DMOST POLST forms.
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141 (a) A patient with decision-making capacity, may, at any time, void that patient’s own completed DMOST POLST
142 form or otherwise request alternative treatment to the treatment that was ordered on the DMOST POLST form.
143 (b) If the orders in a patient’s completed DMOST POLST form regarding the use of any intervention specified
144 therein conflict with the patient’s more recent oral or written directive to the patient’s health-care practitioner, the health-
145 care practitioner shall honor the more recent directive from the patient in accordance with the provisions of under
146 subsection (d) of this section.
147 (c) The patient’s authorized representative may, at any time after the patient loses decision-making capacity and
148 after consultation with the patient’s health-care practitioner, request that the health-care practitioner do any of the
149 following, as the patient’s authorized representative deems necessary to reflect the patient’s health status or goals of care: to
150 modify or void the completed DMOST form, or otherwise request
151 (1) Modify the POLST form.
152 (2) Void the POLST form.
153 (3) Request alternative treatment to the treatment that was ordered on the DMOST form, as the patient’s
154 authorized representative deems necessary to reflect the patient’s health status or goals of care, unless the patient
155 expressly limits the authorized representative’s authority to modify or void the completed DMOST form. The DMOST
156 form shall provide the patient with the option to authorize or not to authorize the patient’s authorized representative to
157 void or modify the patient’s completed DMOST form if the patient who has a completed DMOST form loses decision-
158 making capacity. If the patient indicates on the DMOST form that the authorized representative is not authorized to
159 void or modify the patient’s completed DMOST form, the patient’s authorized representative may not do so. POLST
160 form.
161 (d) A DMOST POLST form may only be modified in consultation with the patient’s health-care practitioner in
162 accordance with the provisions of the applicable regulations.
163 § 2512A. Resolution of conflicts.
164 (a) In the event of a disagreement between the patient’s authorized representative and the patient’s health-care
165 practitioner concerning the patient’s decision-making capacity or the appropriate interpretation and application of the terms
166 of a completed DMOST POLST form regarding the patient’s course of treatment, the parties: parties may do either of the
167 following:
168 (1) May seek Seek to resolve the disagreement by means of procedures and practices established by the
169 health-care institution, including, but not limited to, including consultation with an institutional ethics committee, or
170 with an individual designated by the health-care institution for this purpose; or purpose.
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171 (2) May seek Seek resolution by a court of competent jurisdiction.
172 (b) A health-care provider involved in the patient’s care or an administrator of a health-care institution may seek to
173 resolve a disagreement concerning the appropriate interpretation and application of the terms of a completed DMOST
174 POLST form to the patient’s course of treatment in the same manner as set forth in under subsection (a) of this section.
175 § 2513A. Conflicting directives.
176 (a) The patient’s scope of treatment shall be is governed by the latest directive available.
177 (b) If the treatment directives of a later advance health-care directive conflict with the patient’s directives on a
178 DMOST POLST form, a health-care practitioner shall be informed so that the DMOST POLST form can be modified or
179 voided in order to reflect that patient’s later directive.
180 (c) If there is a conflict between the patient’s expressed oral or written directives, the DMOST POLST form, or the
181 decisions of the patient’s authorized representative, the patient’s last expressed oral or written directives shall must be
182 followed and, if necessary, a new DMOST POLST form shall must be prepared and executed.
183 § 2514A. Safeguards.
184 Any individual or entity may petition the Court of Chancery for appointment of a guardian of the person of a
185 patient if that individual or entity has good reason to believe that the withdrawal or withholding of health care in a
186 particular case: case is any of the following:
187 (1) Is contrary Contrary to the most recent expressed wishes of a patient; directions of the patient.
188 (2) Is predicated Predicated on an incorrect assessment of the patient’s decision-making capacity; capacity.
189 (3) Is being proposed pursuant to a DMOST Proposed under a POLST form that has been falsified, forged, or
190 coerced; coerced.
191 (4) Is being Being considered without knowledge of a revocation of a completed DMOST that the POLST
192 form which has been revoked because that revocation has been unlawfully concealed, destroyed, altered, or cancelled;
193 or cancelled.
194 § 2515A. Immunity.
195 A health-care institution, health-care practitioner, or health-care provider acting in good faith and in accordance
196 with generally accepted health-care standards applicable to the health-care institution, health-care practitioner, or health-
197 care provider is not subject to civil or criminal liability or to discipline for unprofessional conduct for: for any of the
198 following:
199 (1) Complying with a DMOST POLST form signed by a health-care practitioner apparently having authority
200 to make a DMOST POLST for a patient, including a decision to withhold or withdraw health care; care.
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201 (2) Declining to comply with a DMOST POLST form based on a belief that the health-care practitioner then
202 lacked authority to sign a DMOST; the POLST form.
203 (3) Complying with a DMOST POLST form and assuming that the DMOST POLST form was valid when
204 made and has not been modified or voided; voided.
205 (4) Providing life-sustaining treatment in an emergency situation when the existence of a DMOST POLST
206 form is unknown; or unknown.
207 (5) Declining to comply with a DMOST POLST form because the DMOST POLST form is contrary to the
208 conscience or good faith medical judgment of the health-care practitioner or the written policies of the health-care
209 institution.
210 § 2516A. Assumptions and presumptions.
211 (a) Neither the execution of a DMOST POLST form under this chapter nor the fact that health care is withheld or
212 withdrawn from a patient in accordance therewith shall, for any purpose, constitute a suicide.
213 (b) The completion of a DMOST POLST form pursuant to under this chapter shall not be deemed or presumed to
214 modify the terms of an existing insurance policy. No policy of insurance shall be legally impaired or invalidated in any
215 manner by the withholding or withdrawal of health care from an insured patient, notwithstanding any term of the policy to
216 the contrary.
217 (c) No health-care institution, health-care provider, health-care service plan, insurer issuing disability insurance,
218 self-insured employee welfare benefit plan, nonprofit hospital service plan, or any other type of direct or indirect provider
219 of health-care benefits or services, shall require any individual to execute a DMOST POLST form as a condition to being
220 insured, to receiving care, or to being admitted to a health-care institution in order to receiving health-care services.
221 § 2517A. Penalties.
222 (d) An individual who intentionally or knowingly commits any of the following acts is guilty of a class G felony:
223 (1) Concealing, canceling, defacing, obliterating, or withholding personal knowledge of a completed DMOST
224 POLST form or a modification or revocation thereof, without the patient’s consent, or if the patient lacks decision-
225 making capacity, without the consent of the patient’s authorized representative; representative.
226 (2) Falsifying or forging a completed DMOST POLST form or a modification or revocation thereof; or of a
227 POLST form.
228 (3) Coercing or fraudulently inducing the completion of a DMOST POLST form or a modification or
229 revocation thereof of a POLST form by a patient or, if a patient lacks decision-making capacity, by a patient’s
230 authorized representative.
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231 (e) Any organization that is a health-care provider, health-care institution, or “person” as defined in § 102(11) of
232 Title 18 who intentionally or knowingly requires or prohibits the completion of a DMOST POLST form or a modification
233 or revocation thereof as a condition of coverage under any policy of health or life insurance, or an annuity, or a public
234 benefits program, or as a condition of the provision of health care is guilty of a class A misdemeanor for each and every act
235 or violation, and may be subject to suspension or revocation of such person’s authority to do business in Delaware.
236 § 2518A. Capacity.
237 (a) An adult individual is presumed to have capacity to make a health-care decision and to execute, modify
238 modify, or void a DMOST POLST form.
239 (b) A determination that a (1) The presumption under subsection (a) of this section may be rebutted by a health-
240 care practitioner who makes a finding that the patient lacks decision-making capacity must be made by a physician, and if a
241 based on a contemporaneous examination and in accordance with accepted standards of the profession and the scope of
242 practice of the health-care practitioner making the finding.
243 (2) A health-care practitioner must document a finding under paragraph (b)(1) of this section in the patient’s
244 medical record.
245 (c) A patient’s authorized representative is executing the DMOST form such determination by a physician shall be
246 required. may not execute a POLST form for a patient unless the documentation required under paragraph (b)(2) of this
247 section is in the patient’s medical record.
248 § 2520A. Effect of copy.
249 A copy of a DMOST POLST form or revocation of a DMOST POLST form has the same effect as the original.
250 § 2521A. DMOST Delaware POLST Steering Committee.
251 (a) The DMOST Delaware POLST Steering Committee (Committee) is established to support the implementation
252 of the DMOST POLST program and make recommendations regarding the implementation of this chapter.
253 (d) The Committee shall produce an annual report, published on the DMOST Program POLST program website,
254 that includes all of the following:
255 (1) Data regarding all of the following:
256 a. The number of DMOST POLST forms in the electronic registry.
257 b. How often the electronic registry is consulted by health-care providers.
258 c. Use of DMOST POLST forms by emergency-care providers.
259 (2) Information about trainings provided to health-care practitioners, health-care providers, and emergency-
260 care providers.
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261 (3) Public education and outreach efforts.
262 (4) Current challenges and recommendations to improve the DMOST Program POLST program and the use
263 of DMOST POLST forms.
264 § 2522A. Savings and transitional provisions.
265 (a) For purposes of this section, “Delaware Medical Orders for Scope of Treatment” or “DMOST form” means a
266 DMOST form created under this chapter before the names changed to “Delaware Portable Orders for Life-Sustaining
267 Treatment” and “POLST form” on [the effective date of this Act].
268 (b) A DMOST form is valid if it complies with this chapter or complied at the time of creation with the law of the
269 state in which it was created.
270 (c) This chapter does not affect the validity or effect of an act done before [the effective date of this Act].
271 (d) This chapter applies to a DMOST form executed before, on, or after [the effective date of this Act].
272 Section 2. Amend § 1122, Title 16 of the Delaware Code by making deletions as shown by strike through and
273 insertions as shown by underline as follows:
274 § 1122. Devolution of rights.
275 Where consistent with the nature of each right in § 1121 of this title, particularly as they pertain to a resident
276 adjudicated incompetent in accordance with Delaware law, if the resident is determined to need a representative under
277 federal law, or the presumption of the resident’s capacity is rebutted under § 2504 of this title, all rights devolve to the
278 resident’s authorized representative, as established under any of the following:
279 (5) An individual who is otherwise authorized under applicable law to make the health-care decisions being
280 made by execution of the DMOST POLST form on the patient’s behalf under Chapter 25A of this title.
281 Section 3. Amend § 3005J, Title 16 of the Delaware Code by making deletions as shown by strike through and
282 insertions as shown by underline as follows:
283 § 3005J. Limitations.
284 Nothing in this chapter shall be construed to do any of the following:
285 (2) Interfere with a valid Delaware Medical Orders for Scope of Treatment (DMOST) POLST form under
286 Chapter 25A of this title.
287 Section 4. Amend § 2718, Title 21 of the Delaware Code by making deletions as shown by strike through and
288 insertions as shown by underline as follows:
289 § 2718. Information on licenses [For application of this section, see 85 Del. Laws, c. 40, § 15].
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290 (c) The Division of Motor Vehicles shall provide a method for permitting a person applying for a license or
291 identification card, or for renewal thereof, to have designated thereon that such person has a medical condition which may
292 require special attention.
293 (5) For the purposes of this subsection “medical condition” includes the execution of a pre-hospital an
294 advance care health-care directive under Chapter 25 of Title 16 or Delaware Medical Orders for Scope of Treatment
295 POLST form under Chapter 25A of Title 16, and those orders from other states, which have become are effective under
296 Chapter 25 or Chapter 25A of Title 16.
297 Section 5. This Act is effective immediately and is to be implemented the earlier of the following:
298 (1) Notice by the Secretary of the Department of Health and Social Services published in the Register of
299 Regulations that final regulations to implement this Act have been promulgated.
300 (2) Six months from the date of the Act’s enactment.
SYNOPSIS
Enacted in 2015, Chapter 25A of Title 16, the Delaware Medical Orders for Scope of Treatment Act created a
voluntary process and a document that can used by patients with serious illness or frailty to provide direction to emergency
care personnel regarding the patient's preferences in regard to scope of care and treatment.
This Act changes the name "Delaware Medical Orders for Scope of Treatment (DMOST)" under Chapter 25A of
Title 16 to "Delaware Portable Orders for Life-Sustaining Treatment (POLST)" to align with the national effort to create a
uniform form. This Act contains a savings provision so that the name change under this Act does not affect the validity or
effect of DMOST forms.
This Act also revises Chapter 25A of Title 16 as follows:
• Repeals requirements that conflict with the national model law regarding a patient’s ability to limit the future
authority of the patient’s authorized representative to modify the orders in the patient’s POLST form.
• Allows any health-care practitioner authorized under Chapter 25A of Title 16 to complete a POLST form to find
that a patient lacks sufficient decision-making capacity to execute a POLST form. Under existing law, all practitioners who
are licensed and authorized to write medical orders under Title 24 may complete POLST forms but only physicians can
determine that a patient lacks sufficient decision-making capacity to execute a POLST form. This change is consistent with
the capacity provisions under Chapter 25 of Title 16, the recently enacted Uniform Health-Care Decisions Act.
• Requires that a health-care practitioner document their finding that a patient lacks decision-making capacity in
the patient’s medical record.
• Clarifies the existing requirement that a patient’s authorized representative may not execute a POLST form for a
patient unless the patient’s lack of decision-making capacity is documented in the patient’s medical record.
Makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual,
including corresponding name changes to other Code sections that reference the DMOST form. In § 2718(c)(5) of Title 21,
the name for an advance health-care directive under Chapter 25 of Title 16 is also corrected.
Author: Senator Pinkney
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