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Full Text of SB0109  102nd General Assembly

SB0109 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB0109

 

Introduced 2/3/2021, by Sen. Sara Feigenholtz

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 40/10  from Ch. 110 1/2, par. 851-10
755 ILCS 40/20  from Ch. 110 1/2, par. 851-20
755 ILCS 40/65

    Amends the Health Care Surrogate Act. Changes certain uses of the term "qualified physician" to "qualified health care practitioner". Provides that execution of a POLST form shall not be a requirement for admission to any facility or a precondition to the provision of services by any provider of health care services. Provides that an individual may revoke a document directing that resuscitating efforts shall not be implemented. In a Section regarding Department of Public Health Uniform POLST forms, changes the definition of "attending health care practitioner". Provides that a health care provider facility shall comply with a POLST form, National POLST form, another state's POLST Paradigm portable medical orders form, or an out-of-hospital Do Not Resuscitate (DNR) order sanctioned by a State in the United States that: has been executed by an adult; and is apparent and immediately available. Provides that before voiding or revoking a uniform practitioner orders for life-sustaining treatment (POLST) form, National POLST form, or another state's POLST Paradigm portable medical orders form consented to by the individual, that individual's legally authorized surrogate decision maker shall first: engage in consultation with the attending health care practitioner; consult the patient's advance directive, if available; and make a good faith effort to act consistently, at all times, with the patient's known wishes, or, if the patient's wishes are not known, using substituted judgment as the standard. Provides that when an individual's legally authorized surrogate is making a good faith effort to act consistently with the patient's known wishes to void or revoke a POLST form, if the patient's wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the patient's best interests as determined by the surrogate decision maker.


LRB102 10223 LNS 15547 b

 

 

A BILL FOR

 

SB0109LRB102 10223 LNS 15547 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Health Care Surrogate Act is amended by
5changing Sections 10, 20, and 65 as follows:
 
6    (755 ILCS 40/10)  (from Ch. 110 1/2, par. 851-10)
7    Sec. 10. Definitions.
8    "Adult" means a person who is (i) 18 years of age or older
9or (ii) an emancipated minor under the Emancipation of Minors
10Act.
11    "Artificial nutrition and hydration" means supplying food
12and water through a conduit, such as a tube or intravenous
13line, where the recipient is not required to chew or swallow
14voluntarily, including, but not limited to, nasogastric tubes,
15gastrostomies, jejunostomies, and intravenous infusions.
16Artificial nutrition and hydration does not include assisted
17feeding, such as spoon or bottle feeding.
18    "Available" means that a person is not "unavailable". A
19person is unavailable if (i) the person's existence is not
20known, (ii) the person has not been able to be contacted by
21telephone or mail, or (iii) the person lacks decisional
22capacity, refuses to accept the office of surrogate, or is
23unwilling to respond in a manner that indicates a choice among

 

 

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1the treatment matters at issue.
2    "Attending physician" means the physician selected by or
3assigned to the patient who has primary responsibility for
4treatment and care of the patient and who is a licensed
5physician in Illinois. If more than one physician shares that
6responsibility, any of those physicians may act as the
7attending physician under this Act.
8    "Close friend" means any person 18 years of age or older
9who has exhibited special care and concern for the patient and
10who presents an affidavit to the attending physician stating
11that he or she (i) is a close friend of the patient, (ii) is
12willing and able to become involved in the patient's health
13care, and (iii) has maintained such regular contact with the
14patient as to be familiar with the patient's activities,
15health, and religious and moral beliefs. The affidavit must
16also state facts and circumstances that demonstrate that
17familiarity.
18    "Death" means when, according to accepted medical
19standards, there is (i) an irreversible cessation of
20circulatory and respiratory functions or (ii) an irreversible
21cessation of all functions of the entire brain, including the
22brain stem.
23    "Decisional capacity" means the ability to understand and
24appreciate the nature and consequences of a decision regarding
25medical treatment or forgoing life-sustaining treatment and
26the ability to reach and communicate an informed decision in

 

 

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1the matter as determined by the attending physician.
2    "Forgo life-sustaining treatment" means to withhold,
3withdraw, or terminate all or any portion of life-sustaining
4treatment with knowledge that the patient's death is likely to
5result.
6    "Guardian" means a court appointed guardian of the person
7who serves as a representative of a minor or as a
8representative of a person under legal disability.
9    "Health care facility" means a type of health care
10provider commonly known by a wide variety of titles, including
11but not limited to, hospitals, medical centers, nursing homes,
12rehabilitation centers, long term or tertiary care facilities,
13and other facilities established to administer health care and
14provide overnight stays in their ordinary course of business
15or practice.
16    "Health care provider" means a person that is licensed,
17certified, or otherwise authorized or permitted by the law of
18this State to administer health care in the ordinary course of
19business or practice of a profession, including, but not
20limited to, physicians, nurses, health care facilities, and
21any employee, officer, director, agent, or person under
22contract with such a person.
23    "Imminent" (as in "death is imminent") means a
24determination made by the attending physician according to
25accepted medical standards that death will occur in a
26relatively short period of time, even if life-sustaining

 

 

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1treatment is initiated or continued.
2    "Life-sustaining treatment" means any medical treatment,
3procedure, or intervention that, in the judgment of the
4attending physician, when applied to a patient with a
5qualifying condition, would not be effective to remove the
6qualifying condition or would serve only to prolong the dying
7process. Those procedures can include, but are not limited to,
8assisted ventilation, renal dialysis, surgical procedures,
9blood transfusions, and the administration of drugs,
10antibiotics, and artificial nutrition and hydration.
11    "Minor" means an individual who is not an adult as defined
12in this Act.
13    "Parent" means a person who is the natural or adoptive
14mother or father of the child and whose parental rights have
15not been terminated by a court of law.
16    "Patient" means an adult or minor individual, unless
17otherwise specified, under the care or treatment of a licensed
18physician or other health care provider.
19    "Person" means an individual, a corporation, a business
20trust, a trust, a partnership, an association, a government, a
21governmental subdivision or agency, or any other legal entity.
22    "Qualifying condition" means the existence of one or more
23of the following conditions in a patient certified in writing
24in the patient's medical record by the attending physician and
25by at least one other qualified health care practitioner
26physician:

 

 

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1        (1) "Terminal condition" means an illness or injury
2    for which there is no reasonable prospect of cure or
3    recovery, death is imminent, and the application of
4    life-sustaining treatment would only prolong the dying
5    process.
6        (2) "Permanent unconsciousness" means a condition
7    that, to a high degree of medical certainty, (i) will last
8    permanently, without improvement, (ii) in which thought,
9    sensation, purposeful action, social interaction, and
10    awareness of self and environment are absent, and (iii)
11    for which initiating or continuing life-sustaining
12    treatment, in light of the patient's medical condition,
13    provides only minimal medical benefit.
14        (3) "Incurable or irreversible condition" means an
15    illness or injury (i) for which there is no reasonable
16    prospect of cure or recovery, (ii) that ultimately will
17    cause the patient's death even if life-sustaining
18    treatment is initiated or continued, (iii) that imposes
19    severe pain or otherwise imposes an inhumane burden on the
20    patient, and (iv) for which initiating or continuing
21    life-sustaining treatment, in light of the patient's
22    medical condition, provides only minimal medical benefit.
23    The determination that a patient has a qualifying
24condition creates no presumption regarding the application or
25non-application of life-sustaining treatment. It is only after
26a determination by the attending physician that the patient

 

 

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1has a qualifying condition that the surrogate decision maker
2may consider whether or not to forgo life-sustaining
3treatment. In making this decision, the surrogate shall weigh
4the burdens on the patient of initiating or continuing
5life-sustaining treatment against the benefits of that
6treatment.
7    "Qualified health care practitioner" means an individual
8who has personally examined the patient and who is an Illinois
9licensed physician, advanced practice registered nurse,
10physician assistant, or resident with at least one year of
11graduate or specialty training in this State who holds an
12Illinois temporary license to practice medicine and is
13enrolled in a residency program accredited by the Liaison
14Committee on Graduate Medical Education or the Bureau of
15Professional Education of the American Osteopathic
16Association.
17    "Qualified physician" means a physician licensed to
18practice medicine in all of its branches in Illinois who has
19personally examined the patient.
20    "Surrogate decision maker" means an adult individual or
21individuals who (i) have decisional capacity, (ii) are
22available upon reasonable inquiry, (iii) are willing to make
23medical treatment decisions on behalf of a patient who lacks
24decisional capacity, and (iv) are identified by the attending
25physician in accordance with the provisions of this Act as the
26person or persons who are to make those decisions in

 

 

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1accordance with the provisions of this Act.
2(Source: P.A. 95-331, eff. 8-21-07.)
 
3    (755 ILCS 40/20)  (from Ch. 110 1/2, par. 851-20)
4    Sec. 20. Private decision making process.
5    (a) Decisions whether to forgo life-sustaining or any
6other form of medical treatment involving an adult patient
7with decisional capacity may be made by that adult patient.
8    (b) Decisions whether to forgo life-sustaining treatment
9on behalf of a patient without decisional capacity are lawful,
10without resort to the courts or legal process, if the patient
11has a qualifying condition and if the decisions are made in
12accordance with one of the following paragraphs in this
13subsection and otherwise meet the requirements of this Act:
14        (1) Decisions whether to forgo life-sustaining
15    treatment on behalf of a minor or an adult patient who
16    lacks decisional capacity may be made by a surrogate
17    decision maker or makers in consultation with the
18    attending physician, in the order or priority provided in
19    Section 25. A surrogate decision maker shall make
20    decisions for the adult patient conforming as closely as
21    possible to what the patient would have done or intended
22    under the circumstances, taking into account evidence that
23    includes, but is not limited to, the patient's personal,
24    philosophical, religious and moral beliefs and ethical
25    values relative to the purpose of life, sickness, medical

 

 

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1    procedures, suffering, and death. Where possible, the
2    surrogate shall determine how the patient would have
3    weighed the burdens and benefits of initiating or
4    continuing life-sustaining treatment against the burdens
5    and benefits of that treatment. In the event an unrevoked
6    advance directive, such as a living will, a declaration
7    for mental health treatment, or a power of attorney for
8    health care, is no longer valid due to a technical
9    deficiency or is not applicable to the patient's
10    condition, that document may be used as evidence of a
11    patient's wishes. The absence of a living will,
12    declaration for mental health treatment, or power of
13    attorney for health care shall not give rise to any
14    presumption as to the patient's preferences regarding the
15    initiation or continuation of life-sustaining procedures.
16    If the adult patient's wishes are unknown and remain
17    unknown after reasonable efforts to discern them or if the
18    patient is a minor, the decision shall be made on the basis
19    of the patient's best interests as determined by the
20    surrogate decision maker. In determining the patient's
21    best interests, the surrogate shall weigh the burdens on
22    and benefits to the patient of initiating or continuing
23    life-sustaining treatment against the burdens and benefits
24    of that treatment and shall take into account any other
25    information, including the views of family and friends,
26    that the surrogate decision maker believes the patient

 

 

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1    would have considered if able to act for herself or
2    himself.
3        (2) Decisions whether to forgo life-sustaining
4    treatment on behalf of a minor or an adult patient who
5    lacks decisional capacity, but without any surrogate
6    decision maker or guardian being available determined
7    after reasonable inquiry by the health care provider, may
8    be made by a court appointed guardian. A court appointed
9    guardian shall be treated as a surrogate for the purposes
10    of this Act.
11    (b-5) Decisions concerning medical treatment on behalf of
12a patient without decisional capacity are lawful, without
13resort to the courts or legal process, if the patient does not
14have a qualifying condition and if decisions are made in
15accordance with one of the following paragraphs in this
16subsection and otherwise meet the requirements of this Act:
17        (1) Decisions concerning medical treatment on behalf
18    of a minor or adult patient who lacks decisional capacity
19    may be made by a surrogate decision maker or makers in
20    consultation with the attending physician, in the order of
21    priority provided in Section 25 with the exception that
22    decisions to forgo life-sustaining treatment may be made
23    only when a patient has a qualifying condition. A
24    surrogate decision maker shall make decisions for the
25    patient conforming as closely as possible to what the
26    patient would have done or intended under the

 

 

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1    circumstances, taking into account evidence that includes,
2    but is not limited to, the patient's personal,
3    philosophical, religious, and moral beliefs and ethical
4    values relative to the purpose of life, sickness, medical
5    procedures, suffering, and death. In the event an
6    unrevoked advance directive, such as a living will, a
7    declaration for mental health treatment, or a power of
8    attorney for health care, is no longer valid due to a
9    technical deficiency or is not applicable to the patient's
10    condition, that document may be used as evidence of a
11    patient's wishes. The absence of a living will,
12    declaration for mental health treatment, or power of
13    attorney for health care shall not give rise to any
14    presumption as to the patient's preferences regarding any
15    process. If the adult patient's wishes are unknown and
16    remain unknown after reasonable efforts to discern them or
17    if the patient is a minor, the decision shall be made on
18    the basis of the patient's best interests as determined by
19    the surrogate decision maker. In determining the patient's
20    best interests, the surrogate shall weigh the burdens on
21    and benefits to the patient of the treatment against the
22    burdens and benefits of that treatment and shall take into
23    account any other information, including the views of
24    family and friends, that the surrogate decision maker
25    believes the patient would have considered if able to act
26    for herself or himself.

 

 

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1        (2) Decisions concerning medical treatment on behalf
2    of a minor or adult patient who lacks decisional capacity,
3    but without any surrogate decision maker or guardian being
4    available as determined after reasonable inquiry by the
5    health care provider, may be made by a court appointed
6    guardian. A court appointed guardian shall be treated as a
7    surrogate for the purposes of this Act.
8    (c) For the purposes of this Act, a patient or surrogate
9decision maker is presumed to have decisional capacity in the
10absence of actual notice to the contrary without regard to
11advanced age. With respect to a patient, a diagnosis of mental
12illness or an intellectual disability, of itself, is not a bar
13to a determination of decisional capacity. A determination
14that an adult patient lacks decisional capacity shall be made
15by the attending physician to a reasonable degree of medical
16certainty. The determination shall be in writing in the
17patient's medical record and shall set forth the attending
18physician's opinion regarding the cause, nature, and duration
19of the patient's lack of decisional capacity. Before
20implementation of a decision by a surrogate decision maker to
21forgo life-sustaining treatment, at least one other qualified
22health care practitioner physician must concur in the
23determination that an adult patient lacks decisional capacity.
24The concurring determination shall be made in writing in the
25patient's medical record after personal examination of the
26patient. The attending physician shall inform the patient that

 

 

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1it has been determined that the patient lacks decisional
2capacity and that a surrogate decision maker will be making
3life-sustaining treatment decisions on behalf of the patient.
4Moreover, the patient shall be informed of the identity of the
5surrogate decision maker and any decisions made by that
6surrogate. If the person identified as the surrogate decision
7maker is not a court appointed guardian and the patient
8objects to the statutory surrogate decision maker or any
9decision made by that surrogate decision maker, then the
10provisions of this Act shall not apply.
11    (d) A surrogate decision maker acting on behalf of the
12patient shall express decisions to forgo life-sustaining
13treatment to the attending physician and one adult witness who
14is at least 18 years of age. This decision and the substance of
15any known discussion before making the decision shall be
16documented by the attending physician in the patient's medical
17record and signed by the witness.
18    (e) The existence of a qualifying condition shall be
19documented in writing in the patient's medical record by the
20attending physician and shall include its cause and nature, if
21known. The written concurrence of another qualified health
22care practitioner physician is also required.
23    (f) Once the provisions of this Act are complied with, the
24attending physician shall thereafter promptly implement the
25decision to forgo life-sustaining treatment on behalf of the
26patient unless he or she believes that the surrogate decision

 

 

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1maker is not acting in accordance with his or her
2responsibilities under this Act, or is unable to do so for
3reasons of conscience or other personal views or beliefs.
4    (g) In the event of a patient's death as determined by a
5physician, all life-sustaining treatment and other medical
6care is to be terminated, unless the patient is an organ donor,
7in which case appropriate organ donation treatment may be
8applied or continued temporarily.
9(Source: P.A. 97-227, eff. 1-1-12.)
 
10    (755 ILCS 40/65)
11    Sec. 65. Department of Public Health Uniform POLST form.
12    (a) An individual of sound mind and having reached the age
13of majority or having obtained the status of an emancipated
14person pursuant to the Emancipation of Minors Act may execute
15a document (consistent with the Department of Public Health
16Uniform POLST form described in Section 2310-600 of the
17Department of Public Health Powers and Duties Law of the Civil
18Administrative Code of Illinois) directing that resuscitating
19efforts shall not be implemented. This individual may also
20revoke the document at will. Such a document may also be
21executed by an attending health care practitioner. If more
22than one practitioner shares that responsibility, any of the
23attending health care practitioners may act under this
24Section. Notwithstanding the existence of a do-not-resuscitate
25(DNR) order or Department of Public Health Uniform POLST form,

 

 

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1appropriate organ donation treatment may be applied or
2continued temporarily in the event of the patient's death, in
3accordance with subsection (g) of Section 20 of this Act, if
4the patient is an organ donor.
5    (a-5) Execution of a Department of Public Health Uniform
6POLST form is voluntary; no person can be required to execute
7either form. Execution of a POLST form shall not be a
8requirement for admission to any facility or a precondition to
9the provision of services by any provider of health care
10services. A person who has executed a Department of Public
11Health Uniform POLST form should review the form annually and
12when the person's condition changes.
13    (b) Consent to a Department of Public Health Uniform POLST
14form may be obtained from the individual, or from another
15person at the individual's direction, or from the individual's
16legal guardian, agent under a power of attorney for health
17care, or surrogate decision maker, and witnessed by one
18individual 18 years of age or older, who attests that the
19individual, other person, guardian, agent, or surrogate (1)
20has had an opportunity to read the form; and (2) has signed the
21form or acknowledged his or her signature or mark on the form
22in the witness's presence.
23    (b-5) As used in this Section: ,
24    "Attending "attending health care practitioner" means an
25individual who (1) is an Illinois licensed physician, advanced
26practice registered nurse, physician assistant, or resident

 

 

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1with at least one year of graduate or specialty training in
2this State who holds an Illinois temporary license to practice
3medicine and is enrolled in a residency program accredited by
4the Liaison Committee on Graduate Medical Education or the
5Bureau of Professional Education of the American Osteopathic
6Association licensed resident after completion of one year in
7a program; (2) is selected by or assigned to the patient; and
8(3) has primary responsibility for treatment and care of the
9patient.
10    "POLST" means practitioner orders for life-sustaining
11treatments.
12    "POLST Paradigm portable medical orders form" means a
13medical orders form, including, but not limited to, a Medical
14Orders for Scope of Treatment (MOST), Medical Orders for Life
15Sustaining Treatment (MOLST), Physician Orders for Scope of
16Treatment (POST), or Physician Orders for Life Sustaining
17Treatment (POLST) form, that is formally authorized by a state
18or territory within the United States.
19    (c) Nothing in this Section shall be construed to affect
20the ability of an individual to include instructions in an
21advance directive, such as a power of attorney for health
22care. The uniform form may, but need not, be in the form
23adopted by the Department of Public Health pursuant to Section
242310-600 of the Department of Public Health Powers and Duties
25Law (20 ILCS 2310/2310-600). Except as otherwise provided by
26law, emergency medical service personnel, a health care

 

 

SB0109- 16 -LRB102 10223 LNS 15547 b

1provider, or a health care facility shall comply with a
2Department of Public Health Uniform POLST form, National POLST
3form, another state's POLST Paradigm portable medical orders
4form, or an out-of-hospital Do Not Resuscitate (DNR) order
5sanctioned by a State in the United States that: (i) has been
6executed by an adult; and (ii) is apparent and immediately
7available.
8    (d) A health care professional or health care provider may
9presume, in the absence of knowledge to the contrary, that a
10completed Department of Public Health Uniform POLST form,
11National POLST form, another state's POLST Paradigm portable
12medical orders form, or an out-of-hospital Do Not Resuscitate
13(DNR) order sanctioned by a State in the United States
14executed by an adult, or a copy of that form or a previous
15version of the uniform form, is valid. A health care
16professional or health care provider, or an employee of a
17health care professional or health care provider, who in good
18faith complies with a cardiopulmonary resuscitation (CPR) or
19life-sustaining treatment order, Department of Public Health
20Uniform POLST form, or a previous version of the uniform form
21made in accordance with this Act is not, as a result of that
22compliance, subject to any criminal or civil liability, except
23for willful and wanton misconduct, and may not be found to have
24committed an act of unprofessional conduct.
25    (d-5) Before voiding or revoking a Department of Public
26Health Uniform POLST form, National POLST form, or another

 

 

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1state's POLST Paradigm portable medical orders form consented
2to by the individual, that individual's legally authorized
3surrogate decision maker shall first: (1) engage in
4consultation with the attending health care practitioner; (2)
5consult the patient's advance directive, if available; and (3)
6make a good faith effort to act consistently, at all times,
7with the patient's known wishes, using substituted judgment as
8the standard. If the patient's wishes are unknown and remain
9unknown after reasonable efforts to discern them, the decision
10shall be made on the basis of the patient's best interests as
11determined by the surrogate decision maker. The attending
12health care practitioner shall document the reasons for this
13action in the patient's medical record.
14    (e) Nothing in this Section or this amendatory Act of the
1594th General Assembly or this amendatory Act of the 98th
16General Assembly shall be construed to affect the ability of a
17physician or other practitioner to make a do-not-resuscitate
18order.
19(Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18.)