Storing and Retrieving POLST Forms
The goal of POLST proponents is to achieve legal recognition of the POLST Paradigm, educating physicians (and any other authorized health care providers) to discuss POLST possibilities with patients and their surrogates and to write a POLST when appropriate and agreed to, and convincing health care providers to implement their patients' valid POLSTs if and when the designated circumstances have materialized. Once that initial goal has been achieved, an additional set of legally tinged policy and practice issues would emerge concerning the storage and retrieval of POLST forms (or AD forms, for that matter [Grant, 2011]) so that they are readily available when needed. One obvious, straightforward way to handle the storage and retrieval issue is the proverbial “form under the refrigerator magnet” method, with its equally obvious problem of inaccessibility of the document if an emergency situation involving the patient occurs outside of the patient's home.
To avoid that frequent, foreseeable operational shortcoming, other options must be considered.
As physicians, hospitals, and other health care facilities move steadily in their documentation of all patient information from paper toward electronic medical records, it is desirable that a patient's electronic medical records include the POLST, if one exists. Making that happen, though, will implicate all of the potential legal issues that might apply to electronic medical records generally (Carter, 2011; Hall, 2010; Hoffman & Podgurski, 2009).
In addition to encouraging the incorporation of POLST forms into individual patients' electronic medical records, states eventually will need to consider establishing, through either legislative or regulatory recognition (and an accompanying appropriation of public funds) or through some type of voluntary arrangement, the creation of a central registry to facilitate both immediate form retrieval and quantitative research on the effectiveness of the POLST mechanism. Several states are at various stages of planning or implementing such central registries, and a taxonomy of associated legal issues has already begun to emerge.
Most fundamentally, should submission of every written POLST form to the central registry be required? Who (the physician, the patient, and/or others) would be mandated to submit? If submission were not required, then who (if anyone) would be permitted to electively submit a POLST to the registry? What immunity from criminal and civil liability or other legal protections for POLST submitters should be embedded in statute or regulation? What penalties, if any, should be imposed on mandated submitters who fail to comply with submission requirements? Who should be granted access to the data compiled within the POLST registry, and under what conditions? What specific procedures should be imposed to assure that the registry complies with the confidentiality and data security requirements of the Health Insurance Portability and Accountability Act (HIPAA), Pub. L. 104–191
(1996), codified at 42 U.S.C. § 1301 et seq. and 42 C.F.R. Part 160 and Part 164, and corresponding state laws regarding personal health information?
Additional challenges arising in the development and implementation of a POLST registry mechanism include quality control processes for maximizing the accuracy (in other words, the correct form for the correct patient) and timeliness of information entered into and stored within the registry. Potential questions pertaining to the civil liability of individuals and/or entities negligently entering data into, or negligently maintaining, a registry need to be anticipated and managed proactively; these questions involve, for instance, determining who would have standing to sue, defining the applicable standards of care to which the parties would be held accountable, and delineating the types and amount of damages for breach of duty.
Policy Issues for Health Care Institutions
Besides attention to the sort of public policy issues outlined above that may need to be addressed through the development of legislation and/or regulation, moving forward in promoting the POLST Paradigm to enhance patient autonomy and improve the quality of medical treatment for the critically ill will require individual health care providers (most notably, hospitals, nursing homes, rehabilitation facilities, and assisted living facilities) to confront several interrelated internal policy questions, ideally in a proactive stance. Specifically, despite a statutory or regulatory overlay, each institutional health care provider will likely retain substantial discretion about how POLSTs written by physicians for the patients they serve are to be reconciled and integrated with existing institutional bylaws and protocols regarding the treatment of critically ill persons.
For example, will the institutional provider presently caring for a particular patient recognize and act upon a POLST signed by a physician who earlier cared for that patient in the community or in another institutional provider, but who does not have active admitting and treating privileges within the current provider? Conversely, will the provider limit its recognition of POLSTs to those that are written by physicians who are members of that provider's medical staff? In a connected vein, even if state law permits non-physicians to write POLSTs in consultation with patients or their surrogates, would any particular institutional health care provider elect to recognize and implement a POLST written by a non-physician?