On October 5, 2015, Governor Brown signed the controversial End of Life Option Act (the "Act"), making California the fourth state to enact legislation allowing terminally ill individuals to take life-ending drugs.^[1] According to the Death with Dignity National Center^[2], 26 state legislatures introduced or reintroduced bills addressing the right of terminally ill people to end their own lives during the 2015 session. Given the high-profile passage of the bill in California, more such laws are likely to be enacted.

The Act takes effect 90 days after the end of the special legislative session, which is expected to occur next spring. Implementation may be delayed by a proposed referendum to overturn the Act.

The new law raises several questions for senior care providers. For example, how does it apply in different licensed settings? What role, if any, may the provider play in a resident's end-of-life decision? Can a provider refuse to participate and prohibit its staff from participating? 

The Act from 5000 Feet

The Act addresses a wide array of issues, from the circumstances under which a terminally ill individual may take aid-in-dying drugs, to the role of the attending physician, the availability of various immunities, and the effect of assisted suicide on insurance policies, contracts, and wills. The provisions below are critical to understanding the Act's impact on senior care and housing providers.

Qualified Individual

The Act allows a mentally and physically capable individual with a terminal illness to request and self-administer an aid-in-dying drug. To prevent abuse or rash decisions, the individual:

• Must be a California resident with a medically confirmed incurable and irreversible disease that will result in death within six months;
• Must personally, voluntarily, and specifically request a prescription for an aid-in-dying drug:
  • Two oral requests must be made at least 15 days apart followed by a written request to the individual's attending physician; and
  • The written request must be signed and dated in the presence of two witnesses, only one of whom can be related to the individual or own, operate, or be employed by a health care facility at which the qualified individual resides;
• May withdraw or rescind the request at any time and in any manner; and
• Must complete a final attestation within 48 hours prior to self-administering the drugs.

Self-Administration

Self-administration is defined in the Act as "an affirmative, conscious, and physical act of administering and ingesting the aid-in-dying drug." Thus, no person, not even a nurse or physician, may assist the person with ingesting the drug. (They can assist with preparing the drug; however, "preparation" is not defined.) This means that a skilled nursing facility ("SNF") resident who has mental capacity, but a disabling condition that prevents muscle movement, cannot take an aid-in-dying drug.

Request

Only the terminally ill individual may make a request for an aid-in-dying drug. No other person, including family and legally recognized health care decision makers, such as agents under an advance health care directive or conservators, can request a prescription under the Act. Thus, a person who has dementia or otherwise lacks capacity to make medical decisions cannot request aid-in-dying drugs and cannot have an authorized agent make the request on their behalf.

"Participating in Activities" under the Act

The Act protects certain people and entities when they "participate in activities" authorized under the Act. These activities include (for appropriately licensed persons) delivering a prescription for, dispensing, or delivering the dispensed aid-in-dying drug; if applicable, performing the duties of a consulting or attending physician or a mental health specialist under the Act; and being present when the individual takes the aid-in-dying drug.

Protections for Health Care Providers

The Act insulates "Health Care Providers," including health facilities such as general acute care hospitals, hospice facilities, and SNFs, from liability when they participate in the following activities: determining the diagnosis or prognosis of an individual, determining the capacity of an individual for purposes of qualifying for the Act, providing information to an individual regarding the Act, and providing a referral to a physician who participates in activities under the Act. Furthermore, no actions taken in compliance with the Act will support a claim of neglect or elder abuse.

Critically, the Act does not mention residential care facilities for the elderly ("RCFE") or unlicensed housing providers. Thus, RCFEs, unlicensed housing, and the residential portion of continuing care retirement communities ("CCRCs") and multilevel retirement communities ("MLRCs") are not protected from liability if they participate — or refuse to participate — in activities that Health Care Providers may engage in under the Act. However, they do not lose the rights of any person under the Act to be present when a resident takes an aid-in-dying drug.

Voluntary Activities

The Act is voluntary: it does not require Health Care Providers to participate in activities allowed under the Act, and they are not subject to liability for refusing to participate in the activities outlined in the law. In fact, a Health Care Provider may prohibit its employees and independent contractors from participating in these activities when they act: 1) on premises that the provider owns, manages, or directly controls; or (2) in the course and scope of their employment or contracted services. The Health Care Provider must give staff and contractors notice of its policy before implementing it. Once it does, it may take corrective action against employees or independent contractors who violate its policy.

Unanswered Questions

Although the Act is very detailed, it fails to address several questions, particularly for RCFEs and unlicensed housing providers. For example:

• Can these providers require residents to disclose their end-of-life plans?
• Can they prohibit residents from self-administering aid-in-dying drugs on their campus?
• Can they prohibit staff and contractors from participating in activities in which Health Care Providers may engage (or refuse to engage) under the Act?
• Should they allow a resident to take an aid-in-dying drug in a shared apartment?
• Must an RCFE call "911" if a resident is found dying after ingesting an end-of-life drug?
• Can (or should) the RCFE centrally store the drug? If it does, what security measures are required to prevent unintended access to the drug? 

The Department of Social Services has not yet furnished guidance on the RCFE issues. Unlicensed housing providers (and other providers) will want to identify best practices and consult with their insurers.

Other End-of-Life Planning

Nothing in the Act precludes a senior care provider from discussing end-of-life planning with residents, encouraging them to prepare advance health care directives, or exploring hospice, comfort care, and palliative care alternatives. In fact, the Act requires a physician prescribing an aid-in-dying drug to discuss comfort care, hospice and palliative care alternatives with his patient. And in various licensed settings, providers must inform residents of their rights to complete an advance health care directive. These issues also often arise in the course of care planning.

Next Steps

All providers, whether or not they are Health Care Providers, will want to take several steps to address the Act: (1) discuss and articulate in a written policy their position regarding the use of aid-in-dying drugs on their campuses and the involvement, if any, of staff and contractors; (2) train their staff regarding their policy; (3) disclose their policy to new and existing residents; and (4) develop protocols for addressing end-of-life planning, hospice and comfort care, mental health issues, grief, and other end-of-life issues with residents. It is not too early to start exploring these issues.

Readers with questions are welcome to contact the authors.