February 1, 2013





HOUSE BILL No. 1182

_____


DIGEST OF HB 1182 (Updated January 30, 2013 8:36 pm - DI 77)



Citations Affected: IC 16-18; IC 16-36; IC 27-1; IC 34-30.

Synopsis: Physician order for scope of treatment forms. Establishes a process for the execution of a physician order for scope of treatment (POST) form by an individual, or the individual's representative, and the individual's treating physician to indicate treatment the individual would like to have or have withheld under specified circumstances. Requires the state department of health to: (1) develop and distribute the POST form; and (2) report to the health finance commission concerning the POST form. Specifies provisions that must be included in the POST form. Allows for the modification or revocation of the POST form. Specifies that the existence of an executed POST form cannot affect life insurance policies or premiums. Provides civil and criminal immunity for certain actions taken by a health care provider or its employees under an executed POST form.

Effective: July 1, 2013.





Brown T, Clere , Brown C , Shackleford




    January 10, 2013, read first time and referred to Committee on Public Health.
    January 31, 2013, amended, reported _ Do Pass.






February 1, 2013

First Regular Session 118th General Assembly (2013)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2012 Regular Session of the General Assembly.

HOUSE BILL No. 1182



    A BILL FOR AN ACT to amend the Indiana Code concerning health.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 16-18-2-69; (13)HB1182.1.1. -->     SECTION 1. IC 16-18-2-69 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 69. (a) "Consent", for purposes of IC 16-34, means a written agreement to submit to an abortion:
        (1) after the consenting party has had a full explanation of the abortion procedure to be performed, including disclosures and information required by IC 16-34-2-1.1; and
        (2) as evidenced by the signature of the consenting party on a consent form prescribed by the state department of health.
     (b) "Consent", for purposes of IC 16-36-6, has the meaning set forth in IC 16-36-6-1.
SOURCE: IC 16-18-2-92.4; (13)HB1182.1.2. -->     SECTION 2. IC 16-18-2-92.4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 92.4. (a) "Declarant", for purposes of IC 16-36-5, has the meaning set forth in IC 16-36-5-3.
     (b) "Declarant", for purposes of IC 16-36-6, has the meaning set forth in IC 16-36-6-2.
SOURCE: IC 16-18-2-163; (13)HB1182.1.3. -->     SECTION 3. IC 16-18-2-163, AS AMENDED BY P.L.77-2012,

SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 163. (a) "Health care provider", for purposes of IC 16-21 and IC 16-41, means any of the following:
        (1) An individual, a partnership, a corporation, a professional corporation, a facility, or an institution licensed or legally authorized by this state to provide health care or professional services as a licensed physician, a psychiatric hospital, a hospital, a health facility, an emergency ambulance service (IC 16-31-3), a dentist, a registered or licensed practical nurse, a midwife, an optometrist, a pharmacist, a podiatrist, a chiropractor, a physical therapist, a respiratory care practitioner, an occupational therapist, a psychologist, a paramedic, an emergency medical technician, an advanced emergency medical technician, or a person who is an officer, employee, or agent of the individual, partnership, corporation, professional corporation, facility, or institution acting in the course and scope of the person's employment.
        (2) A college, university, or junior college that provides health care to a student, a faculty member, or an employee, and the governing board or a person who is an officer, employee, or agent of the college, university, or junior college acting in the course and scope of the person's employment.
        (3) A blood bank, community mental health center, community mental retardation center, community health center, or migrant health center.
        (4) A home health agency (as defined in IC 16-27-1-2).
        (5) A health maintenance organization (as defined in IC 27-13-1-19).
        (6) A health care organization whose members, shareholders, or partners are health care providers under subdivision (1).
        (7) A corporation, partnership, or professional corporation not otherwise qualified under this subsection that:
            (A) provides health care as one (1) of the corporation's, partnership's, or professional corporation's functions;
            (B) is organized or registered under state law; and
            (C) is determined to be eligible for coverage as a health care provider under IC 34-18 for the corporation's, partnership's, or professional corporation's health care function.
Coverage for a health care provider qualified under this subdivision is limited to the health care provider's health care functions and does not extend to other causes of action.
    (b) "Health care provider", for purposes of IC 16-35, has the meaning set forth in subsection (a). However, for purposes of IC 16-35,

the term also includes a health facility (as defined in section 167 of this chapter).
    (c) "Health care provider", for purposes of IC 16-36-5 and IC 16-36-6, means an individual licensed or authorized by this state to provide health care or professional services as:
        (1) a licensed physician;
        (2) a registered nurse;
        (3) a licensed practical nurse;
        (4) an advanced practice nurse;
        (5) a licensed nurse midwife;
        (6) a paramedic;
        (7) an emergency medical technician;
        (8) an advanced emergency medical technician; or
        (9) an emergency medical responder, as defined by section 109.8 of this chapter.
The term includes an individual who is an employee or agent of a health care provider acting in the course and scope of the individual's employment.
    (d) "Health care provider", for purposes of IC 16-40-4, means any of the following:
        (1) An individual, a partnership, a corporation, a professional corporation, a facility, or an institution licensed or authorized by the state to provide health care or professional services as a licensed physician, a psychiatric hospital, a hospital, a health facility, an emergency ambulance service (IC 16-31-3), an ambulatory outpatient surgical center, a dentist, an optometrist, a pharmacist, a podiatrist, a chiropractor, a psychologist, or a person who is an officer, employee, or agent of the individual, partnership, corporation, professional corporation, facility, or institution acting in the course and scope of the person's employment.
        (2) A blood bank, laboratory, community mental health center, community mental retardation center, community health center, or migrant health center.
        (3) A home health agency (as defined in IC 16-27-1-2).
        (4) A health maintenance organization (as defined in IC 27-13-1-19).
        (5) A health care organization whose members, shareholders, or partners are health care providers under subdivision (1).
        (6) A corporation, partnership, or professional corporation not otherwise specified in this subsection that:
            (A) provides health care as one (1) of the corporation's,

partnership's, or professional corporation's functions;
            (B) is organized or registered under state law; and
            (C) is determined to be eligible for coverage as a health care provider under IC 34-18 for the corporation's, partnership's, or professional corporation's health care function.
        (7) A person that is designated to maintain the records of a person described in subdivisions (1) through (6).
    (e) "Health care provider", for purposes of IC 16-45-4, has the meaning set forth in 47 CFR 54.601(a).

SOURCE: IC 16-18-2-203; (13)HB1182.1.4. -->     SECTION 4. IC 16-18-2-203 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 203. (a) "Life prolonging procedure", for purposes of IC 16-36-4, has the meaning set forth in IC 16-36-4-1.
     (b) "Life prolonging procedure", for purposes of IC 16-36-6, has the meaning set forth in IC 16-36-6-3.
SOURCE: IC 16-18-2-287.2; (13)HB1182.1.5. -->     SECTION 5. IC 16-18-2-287.2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 287.2. "POST form", for purposes of IC 16-36-6, has the meaning set forth in IC 16-36-6-4.
SOURCE: IC 16-18-2-302.3; (13)HB1182.1.6. -->     SECTION 6. IC 16-18-2-302.3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 302.3. (a) "Qualified person", for purposes of IC 16-36-5, has the meaning set forth in IC 16-36-5-8.
     (b) "Qualified person", for purposes of IC 16-36-6, has the meaning set forth in IC 16-36-6-5.
SOURCE: IC 16-18-2-317; (13)HB1182.1.7. -->     SECTION 7. IC 16-18-2-317 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 317. (a) "Representative", for purposes of IC 16-36-1, has the meaning set forth in IC 16-36-1-2.
    (b) "Representative", for purposes of IC 16-36-5, has the meaning set forth in IC 16-36-5-9.
     (c) "Representative", for purposes of IC 16-36-6, has the meaning set forth in IC 16-36-6-6.
SOURCE: IC 16-36-6; (13)HB1182.1.8. -->     SECTION 8. IC 16-36-6 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]:
     Chapter 6. Physician Order for Scope of Treatment (POST)
    Sec. 1. As used in this chapter, "consent" means authorization to provide, withhold, or withdraw treatment.
    Sec. 2. As used in this chapter, "declarant" means a qualified person:
        (1) who has completed a POST form under section 7(a)(1) of

this chapter; or
        (2) for whom a representative has completed a POST form under section 7(a)(2) of this chapter;
and whose treating physician has executed a POST form under section 8 of this chapter.
    Sec. 3. (a) As used in this chapter, "life prolonging procedure" means any medical procedure, treatment, or intervention that does the following:
        (1) Uses mechanical or other artificial means to sustain, restore, or supplant a vital function.
        (2) Serves to prolong the dying process.
    (b) The term does not include the performance or provision of any medical procedure or medication necessary to provide comfort care or to alleviate pain.
    Sec. 4. As used in this chapter, "POST form" refers to a physician order for scope of treatment (POST) form developed by the state department under section 9 of this chapter.
    Sec. 5. As used in this chapter, "qualified person" refers to an individual who has at least one (1) of the following:
        (1) An advanced chronic progressive illness.
        (2) An advanced chronic progressive frailty.
        (3) A condition caused by injury, disease, or illness from which, to a reasonable degree of medical certainty:
            (A) there can be no recovery; and
            (B) death will occur from the condition within a short period without the provision of life prolonging procedures.
        (4) A medical condition that, if the person were to suffer cardiac or pulmonary failure, resuscitation would be unsuccessful or within a short period the person would experience repeated cardiac or pulmonary failure resulting in death.
    Sec. 6. As used in this chapter, "representative" means an individual described in section 7(a)(2) of this chapter.
    Sec. 7. (a) The following individuals may complete a POST form:
        (1) A qualified person who is:
            (A) either:
                (i) at least eighteen (18) years of age; or
                (ii) less than eighteen (18) years of age but authorized to consent under IC 16-36-1-3(a)(2); and
            (B) of sound mind.
        (2) A qualified person's representative, if the qualified person:


            (A) is less than eighteen (18) years of age and is not authorized to consent under IC 16-36-1-3(a)(2); or
            (B) has been determined to be incapable of making decisions about the qualified person's health care by a treating physician acting in good faith and the representative has been:
                (i) appointed by the individual under IC 16-36-1-7 to serve as the individual's health care representative;
                (ii) authorized to act under IC 30-5-5-16 and IC 30-5-5-17 as the individual's attorney in fact with authority to consent to or refuse health care for the individual; or
                (iii) appointed by a court as the individual's guardian under IC 16-36-1-8.
    (b) In order to complete a POST form, a person described in subsection (a) and the qualified person's treating physician or the physician's designee must do the following:
        (1) Discuss the qualified person's goals and treatment options available to the qualified person based on the qualified person's health.
        (2) Complete the POST form, to the extent possible, based on the qualified person's preferences determined during the discussion in subdivision (1).
    (c) When completing a POST form on behalf of a qualified person, a representative shall act:
        (1) in good faith; and
        (2) in:
            (A) accordance with the qualified person's express or implied intentions, if known; or
            (B) the best interest of the qualified person, if the qualified person's express or implied intentions are not known.
    (d) A copy of the executed POST form shall be maintained in the qualified person's medical file.
    Sec. 8. (a) A POST form may be executed only by an individual's treating physician and only if:
        (1) the treating physician has determined that:
            (A) the individual is a qualified person; and
            (B) the medical orders contained in the individual's POST form are reasonable and medically appropriate for the individual; and
        (2) the qualified person or representative has completed the POST form in accordance with section 7 of this chapter.
    (b) The:
        (1) treating physician; and
        (2) qualified person or representative;
must sign and date the POST form for the POST form to be effective.
    Sec. 9. (a) The state department shall develop a standardized POST form and distribute the POST form.
    (b) The POST form developed under this section must include the following:
        (1) A medical order specifying whether cardiopulmonary resuscitation (CPR) should be performed if the qualified person is in cardiopulmonary arrest.
        (2) A medical order concerning the level of medical intervention that should be provided to the qualified person, including the following:
            (A) Comfort measures.
            (B) Limited additional interventions.
            (C) Full intervention.
        (3) A medical order specifying whether antibiotics should be provided to the qualified person.
        (4) A medical order specifying whether artificially administered nutrition should be provided to the qualified person.
        (5) A signature line for the treating physician, including the following information:
            (A) The physician's printed name.
            (B) The physician's telephone number.
            (C) The physician's medical license number.
            (D) The date of the physician's signature.
        As used in this subdivision, "signature" includes an electronic or physician controlled stamp signature.
        (6) A signature line for the qualified person or representative, including the following information:
            (A) The qualified person's or representative's printed name.
            (B) The relationship of the representative signing the POST form to the qualified person covered by the POST form.
            (C) The date of the signature.
        (7) A section presenting the option to allow a declarant to appoint an individual under IC 16-36-1-7 to serve as the declarant's health care representative.
    (c) The state department shall adopt rules under IC 4-22-2 concerning the use and distribution of the POST form.
    Sec. 10. (a) The declarant or representative shall keep the original executed POST form. The POST form is considered the personal property of the declarant. The treating physician who executes the POST form shall maintain a copy of the POST form in the declarant's medical records. If the POST form is executed at a health care facility (as defined in IC 16-18-2-161), a copy of the POST form shall be maintained in the health care facility's medical records.
    (b) A health care provider or health care facility shall treat a facsimile, paper, or electronic copy of a valid POST form as an original document.
    (c) A health care provider, a health care facility, or an entity may not be considered to have knowledge of a POST form solely on the basis of the POST form's existence in a medical record.
    Sec. 11. (a) A declarant or representative subject to subsection (b) may at any time revoke a POST form by any of the following:
        (1) A signed and dated writing.
        (2) Physical cancellation or destruction of the POST form by:
            (A) the declarant;
            (B) the representative; or
            (C) another individual at the direction of the declarant or representative.
        (3) An oral expression by the declarant or representative of an intent to revoke the POST form.
    (b) A representative may revoke the POST form only if the declarant is incapable of making decisions regarding the declarant's health care.
    (c) A revocation of a POST form under this section is effective upon communication of the revocation to a health care provider.
    (d) Upon communication of the revocation of a POST form under this section, the health care provider shall immediately notify the declarant's treating physician, if known, of the revocation.
    (e) Upon notification of the revocation of a POST form to the treating physician under subsection (d), the declarant's treating physician shall as soon as possible do the following:
        (1) Add the revocation to the declarant's medical record with the following information:
            (A) The time, date, and place of revocation of the POST form by the declarant, representative, or other individual

at the direction of the declarant or representative.
            (B) The time, date, and place the treating physician was notified of the revocation of the POST form.
        (2) Cancel the POST form that is being revoked by conspicuously noting in the declarant's medical records that the declarant's POST form has been voided.
        (3) Notify any health care personnel responsible for the care of the declarant of the revocation of the POST order.
        (4) Notify the physician who signed the POST form of the revocation through the contact information for the physician indicated on the form.
    Sec. 12. (a) A declarant, or subject to subsection (b), a representative, may, at any time, request alternative treatment to the treatment specified on the POST form.
    (b) A representative may request alternative treatment only if the declarant is incapable of making decisions concerning the declarant's health care.
    (c) A health care provider to whom a request for alternative treatment is communicated shall, as soon as possible, notify the declarant's treating physician, if known, of the request.
    (d) The treating physician who is notified under subsection (c) of a request for alternative treatment shall do the following as soon as possible:
        (1) Include a written, signed note of the request in the declarant's medical records with the following information:
            (A) The time, date, and place of the request by the declarant or representative.
            (B) The time, date, and place that the treating physician was notified of the request.
        (2) Review the POST form with the declarant or representative and execute a new POST form, if needed.
    Sec. 13. (a) A health care provider, a health care facility, or an interested individual who believes that following the medical orders set forth in the POST form will result in care or treatment, or the withholding of care or treatment, that:
        (1) is inconsistent with the declarant's known preferences; or
        (2) in the absence of the declarant's known preferences, is not in the declarant's best interest;
may seek relief under IC 16-36-1-8 by petitioning the probate court in the county where the declarant is located.
    (b) If, in a proceeding sought under subsection (a), a probate court determines that following the medical orders in the

declarant's POST form will result in care or treatment, or the withholding or withdrawal of care or treatment, that:
        (1) is inconsistent with the declarant's known preferences; or
        (2) in the absence of the declarant's known preferences, is not in the declarant's best interest;
the probate court may order any of the relief available under IC 16-36-1-8.
    Sec. 14. A declarant's executed POST form has no effect during the declarant's pregnancy if the declarant is known to be pregnant.
    Sec. 15. (a) Except as otherwise provided in this chapter, the medical orders included in a POST form executed under this chapter are effective in all settings. A health care provider shall comply with a declarant's POST form that is apparent and immediately available to the provider unless the provider:
        (1) believes the POST form was not validly executed under this chapter;
        (2) believes in good faith that the declarant, the representative, or another individual at the request of the declarant or representative has revoked the POST form as provided in section 11 of this chapter;
        (3) believes in good faith that the declarant or representative has made a request for alternative treatment as provided in section 12 of this chapter;
        (4) believes it would be medically inappropriate to provide the intervention included in the declarant's POST form; or
        (5) has religious or moral beliefs that conflict with the POST form.
    (b) A health care provider is not required to provide medical treatment that is contrary to a declarant's POST form that has been executed in accordance with this chapter.
    (c) If a declarant is capable of making health care decisions, the declarant's treating physician, before carrying out or implementing a medical order indicated in the declarant's POST form, shall discuss the order with the declarant to reaffirm or amend the order on the POST form. For purposes of this subsection, a minor who is not authorized to consent to health care under IC 16-36-1-3(a)(2) is not capable of consenting to health care. This subsection applies regardless of whether the POST form was signed by the declarant or representative.
    (d) A health care provider who is unable to implement or carry out the orders of a POST form shall transfer care of the declarant to another physician who is able to implement or carry out the

orders. However, a health care provider who refuses to implement the medical orders included in an executed POST form is not required to transfer care of the declarant if any of the circumstances in subsection (a)(1) through (a)(4) have occurred.
    (e) The treating physician is responsible for coordinating the transfer of care of a declarant in the circumstances in subsection (d). If the treating physician, after a reasonable attempt, is unable to find a physician willing to implement or carry out the medical orders included in the declarant's POST form, the treating physician may decline to implement or carry out the medical orders.
    (f) If, under this section, the treating physician does not transfer a declarant or implement the medical orders included in the declarant's POST form and the declarant is competent, the treating physician shall attempt to ascertain the declarant's preferences for medical care by discussing the preferences with the declarant. If the declarant is incompetent to act, the treating physician shall attempt to ascertain the declarant's preferences for medical care by consulting with the following individuals:
        (1) The treating physician shall consult with any representative who is available, willing, and competent to act.

         (2) If the declarant does not have a representative or if a representative is not available, willing, and competent to act, the treating physician shall consult with any of the following individuals who are available, willing, and competent to act:
            (A) The declarant's spouse.
            (B) An adult child of the declarant, or, if the declarant has more than one (1) adult child, a majority of the children who are reasonably available for consultation.
            (C) A parent of the declarant.
            (D) An adult sibling of the declarant, or, if the declarant has more than one (1) adult sibling, a majority of the siblings who are reasonably available for consultation.
            (E) An individual with firsthand knowledge of the declarant's intentions.
    (g) An individual described in subsection (f) shall act according to the declarant's intentions, if known, or in the best interest of the declarant.
    (h) The physician shall list the names of the individuals described in subsection (f) who were consulted and the information received by the individuals in the declarant's medical record.
    Sec. 16. (a) A:


        (1) health care provider;
        (2) health care facility; or
        (3) health entity;
or an employee under the direction of a person described in subdivisions (1) through (3) who acts in good faith and in accordance with reasonable medical standards to carry out the orders on a POST form, including a medical order for the withholding or withdrawal of life prolonging procedures, is not subject to criminal or civil liability and may not be found to have committed an act of unprofessional conduct.

     (b) A health care provider may presume in the absence of actual notice or evidence to the contrary that a POST form executed in compliance with this chapter is valid and enforceable.
     Sec. 17. (a) This chapter may not be construed to modify or alter any applicable laws, ethics, standards, or protocols for the practice of medicine or nursing, including section 20 of this chapter concerning euthanasia.
     (b) A POST form may not be construed to compel or authorize a health care provider or health care facility to administer medical treatment that is medically inappropriate or prohibited by state or federal law.
    Sec. 18. Before October 1, 2014, and before October 1 of each year thereafter until October 1, 2019, the state department shall report to the health finance commission established by IC 2-5-23-3 concerning the use of the POST form, including the following information:
        (1) A sample of the current POST form.
        (2) Any information the state department has on the use of the POST form.
        (3) Any complaints or issues concerning use of the POST form.
        (4) Any requests to modify the POST form.

     Sec. 19. (a) A death as a result of the withholding or withdrawal of life prolonging procedures in accordance with a declarant's POST form does not constitute a suicide.
    (b) A person may not require an individual to complete a POST form as a condition of receiving health care services.
    (c) This chapter does not impair or supersede any legal right or legal responsibility that an individual may have to effect the provision, withholding, or withdrawing of care or treatment, including the withholding or withdrawal of life prolonging procedures, in a lawful manner.
    Sec. 20. This chapter does not authorize euthanasia or any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

     Sec. 21. The execution or revocation of a POST form by or for a qualified person does not revoke or impair the validity of any of the following:
        (1) A power of attorney that is executed by a qualified person when the qualified person is competent.
        (2) Health care powers that are granted to an attorney in fact under IC 30-5-5-16 or IC 30-5-5-17.
        (3) An appointment of a health care representative that is executed by a qualified person, except to the extent that the POST form contains a superseding appointment of a new health care representative under section 9(b)(7) of this chapter.
        (4) The authority of a health care representative under IC 16-36-1 to consent to health care on behalf of the qualified patient.
        (5) The authority of an attorney in fact holding health care powers under IC 30-5-5-16 or IC 30-5-5-17 to issue and enforce instructions under IC 30-5-7 concerning the qualified person's health care.

SOURCE: IC 27-1-12-45; (13)HB1182.1.9. -->     SECTION 9. IC 27-1-12-45 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 45. (a) The execution of a POST form under IC 16-36-6 does not affect the sale, issuance, or terms of a policy of life insurance.
    (b) A policy of life insurance is not legally impaired or invalidated by the execution of a POST form, including the withholding or withdrawal of life prolonging procedures from an insured under the medical orders included in the POST form.
    (c) A POST form may not be considered in the establishment of insurance premiums for an individual.
    (d) A person may not require an individual to complete a POST form as a condition for being insured for health care services.

SOURCE: IC 34-30-2-75.5; (13)HB1182.1.10. -->     SECTION 10. IC 34-30-2-75.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 75.5. IC 16-36-6-16 (Concerning health care providers and their employees who carry out the orders of a physician order for scope of treatment form).