Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1331 Compare Versions

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22 SENATE DOCKET, NO. 265 FILED ON: 1/12/2023
33 SENATE . . . . . . . . . . . . . . No. 1331
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Joanne M. Comerford
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act relative to end of life options.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :Joanne M. ComerfordHampshire, Franklin and WorcesterAnne M. GobiWorcester and Hampshire1/18/2023Mindy Domb3rd Hampshire1/18/2023Jack Patrick Lewis7th Middlesex1/20/2023Rebecca L. RauschNorfolk, Worcester and Middlesex1/24/2023Thomas M. Stanley9th Middlesex1/26/2023Jacob R. OliveiraHampden, Hampshire and Worcester1/27/2023Michael J. BarrettThird Middlesex1/27/2023Susan L. MoranPlymouth and Barnstable1/27/2023William N. BrownsbergerSuffolk and Middlesex1/27/2023Patricia D. JehlenSecond Middlesex1/30/2023Jason M. LewisFifth Middlesex1/30/2023John F. KeenanNorfolk and Plymouth2/2/2023Brian M. Ashe2nd Hampden2/6/2023Paul W. MarkBerkshire, Hampden, Franklin and
1616 Hampshire
1717 2/6/2023James B. EldridgeMiddlesex and Worcester2/9/2023Cynthia Stone CreemNorfolk and Middlesex2/14/2023 2 of 2
1818 Adam Scanlon14th Bristol2/15/2023James J. O'Day14th Worcester2/15/2023Julian CyrCape and Islands2/22/2023Paul R. FeeneyBristol and Norfolk3/1/2023Edward R. Philips8th Norfolk3/3/2023Mark C. MontignySecond Bristol and Plymouth3/9/2023 1 of 18
1919 SENATE DOCKET, NO. 265 FILED ON: 1/12/2023
2020 SENATE . . . . . . . . . . . . . . No. 1331
2121 By Ms. Comerford, a petition (accompanied by bill, Senate, No. 1331) of Joanne M. Comerford,
2222 Anne M. Gobi, Mindy Domb, Jack Patrick Lewis and other members of the General Court for
2323 legislation relative to end of life options. Public Health.
2424 [SIMILAR MATTER FILED IN PREVIOUS SESSION
2525 SEE SENATE, NO. 1384 OF 2021-2022.]
2626 The Commonwealth of Massachusetts
2727 _______________
2828 In the One Hundred and Ninety-Third General Court
2929 (2023-2024)
3030 _______________
3131 An Act relative to end of life options.
3232 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
3333 of the same, as follows:
3434 1 The General Laws are hereby amended by inserting after Chapter 201F the following
3535 2chapter:-
3636 3 CHAPTER 201G
3737 4 MASSACHUSETTS END OF LIFE OPTIONS ACT
3838 5 Section 1. For the purposes of this chapter, the following terms shall have the following
3939 6meanings unless the context clearly requires otherwise:
4040 7 “Adult”, an individual who is 18 years of age or older. 2 of 18
4141 8 “Attending physician”, a physician who has primary responsibility for the care of the
4242 9patient and treatment of the patient’s terminal disease.
4343 10 “Consulting physician”, a physician who is qualified by specialty or experience to make a
4444 11professional diagnosis and prognosis regarding a terminally ill patient’s condition.
4545 12 “Counseling”, one or more consultations as necessary between a licensed mental health
4646 13care professional and a patient for the purpose of determining that the patient is capable and not
4747 14suffering from a psychiatric or psychological disorder or depression causing impaired judgment.
4848 15 “Guardian”, an individual who has qualified as a guardian of an incapacitated person
4949 16pursuant to court appointment and includes a limited guardian, special guardian and temporary
5050 17guardian, but excludes one who is merely a guardian ad litem as defined in section 5-101 of
5151 18article V of chapter 190B. Guardianship shall not include a health care proxy as defined by
5252 19chapter 201D.
5353 20 “Health care provider”, an individual licensed, certified, or otherwise authorized or
5454 21permitted by law to diagnose and treat medical conditions, and prescribe and dispense
5555 22medication, including controlled substances.
5656 23 “Incapacitated person”, an individual who for reasons other than advanced age or being a
5757 24minor, has a clinically diagnosed condition that results in an inability to receive and evaluate
5858 25information or make or communicate decisions to such an extent that the individual lacks the
5959 26ability to meet essential requirements for physical health, safety, or self-care, even with
6060 27appropriate technological assistance. An “incapacitated person” shall be defined consistent with
6161 28the definition of an individual described in section 5-101 of article V of chapter 190B. 3 of 18
6262 29 “Informed decision”, a decision by a mentally capable individual to request and obtain a
6363 30prescription for medication pursuant to this chapter that the individual may self-administer to
6464 31bring about a peaceful death, after being fully informed by the attending physician and
6565 32consulting physician of:
6666 33 (a) The individual’s diagnosis and prognosis;
6767 34 (b) The potential risk associated with taking the medication to be prescribed;
6868 35 (c) The probable result of taking the medication to be prescribed;
6969 36 (d) The feasible end-of-life care and treatment options for the individual’s terminal
7070 37disease, including but not limited to comfort care, palliative care, hospice care and pain control,
7171 38and the risks and benefits of each as defined in section 227 of chapter 111; and
7272 39 (e) The individual’s right to withdraw a request pursuant to this chapter, or consent for
7373 40any other treatment, at any time.
7474 41 ”Licensed mental health care professional”, a treatment provider who is a psychiatrist,
7575 42psychologist, psychiatric social worker or psychiatric nurse and others who by virtue of
7676 43education, credentials, and experience are permitted by law to evaluate and care for the mental
7777 44health needs of patients.
7878 45 “Medical aid in dying”, the practice of evaluating a request, determining qualification,
7979 46performing the duties in sections 6, 7 and 8, and providing a prescription to a qualified individual
8080 47pursuant to this chapter. 4 of 18
8181 48 “Medically confirmed,” the medical opinion of the attending physician has been
8282 49confirmed by a consulting physician who has examined the patient and the patient’s relevant
8383 50medical records.
8484 51 “Medication”, aid in dying medication.
8585 52 “Mentally capable”, in the opinion of the attending physician or licensed mental health
8686 53care professional, the individual requesting medication pursuant to this chapter has the ability to
8787 54make and communicate an informed decision.
8888 55 “Palliative care”, a health care treatment as defined in section 227 of chapter 111,
8989 56including interdisciplinary end-of-life care and consultation with patients and family members, to
9090 57prevent or relieve pain and suffering and to enhance the patient’s quality of life, including
9191 58hospice.
9292 59 “Patient”, an individual who has received health care services from a health care provider
9393 60for treatment of a medical condition.
9494 61 “Physician”, a doctor of medicine or osteopathy licensed to practice medicine in
9595 62Massachusetts by the board of registration in medicine.
9696 63 “Qualified patient”, a mentally capable adult who is a resident of Massachusetts, has been
9797 64diagnosed as being terminally ill, and has satisfied the requirements of this chapter.
9898 65 “Resident”, an individual who demonstrates residency in Massachusetts by presenting
9999 66one form of identification which may include but is not limited to:
100100 67 (a) possession of a Massachusetts driver’s license; 5 of 18
101101 68 (b) proof of registration to vote in Massachusetts;
102102 69 (c) proof that the individual owns or leases real property in Massachusetts;
103103 70 (d) proof that the individual has resided in a Massachusetts health care facility for at least
104104 713 months;
105105 72 (e) computer-generated bill from a bank or mortgage company, utility company, doctor,
106106 73or hospital;
107107 74 (f) a W-2 form, property or excise tax bill, or Social Security Administration or other
108108 75pension or retirement annual benefits summary statement dated within the current or prior year;
109109 76 (g) a MassHealth or Medicare benefit statement; or
110110 77 (h) filing of a Massachusetts tax return for the most recent tax year.
111111 78 “Self-administer”, a qualified patient’s act of ingesting medication obtained under this
112112 79chapter.
113113 80 “Terminally ill”, having a terminal illness or condition which can reasonably be expected
114114 81to cause death within 6 months, whether or not treatment is provided.
115115 82 Section 2. (a) A patient wishing to receive a prescription for medication under this
116116 83chapter shall make an oral request to the patient's attending physician. No less than 15 days after
117117 84making the request the patient shall submit a written request to the patient's attending physician
118118 85in substantially the form set in section 4. 6 of 18
119119 86 (b) A terminally ill patient may voluntarily make an oral request for medical aid in dying
120120 87and a prescription for medication that the patient can choose to self-administer to bring about a
121121 88peaceful death if the patient:
122122 89 (1) is a mentally capable adult;
123123 90 (2) is a resident of Massachusetts; and
124124 91 (3) has been determined by the patient’s attending physician to be terminally ill.
125125 92 (c) A patient may provide a written request for medical aid in dying and a prescription for
126126 93medication that the patient can choose to self-administer to bring about a peaceful death if the
127127 94patient:
128128 95 (1) has met the requirements in subsection (b);
129129 96 (2) has been determined by a consulting physician to be terminally ill; and
130130 97 (3) has had no less than 15 days pass after making the oral request.
131131 98 (d) A patient shall not qualify under this chapter if the patient has a guardian.
132132 99 (e) A patient shall not qualify under this chapter solely because of age or disability.
133133 100 Section 3. (a) A valid written request must be witnessed by at least two individuals who,
134134 101in the presence of the patient, attest that to the best of their knowledge and belief that patient is:
135135 102 (1) personally known to the witnesses or has provided proof of identity;
136136 103 (2) acting voluntarily; and
137137 104 (3) not being coerced to sign the request. 7 of 18
138138 105 (b) At least one of the witnesses shall be an individual who is not:
139139 106 (1) a relative of the patient by blood, marriage, or adoption;
140140 107 (2) an individual who at the time the request is signed would be entitled to any portion of
141141 108the estate of the qualified patient upon death under any will or by operation of law;
142142 109 (3) financially responsible for the medical care of the patient; or
143143 110 (4) an owner, operator, or employee of a health care facility where the qualified patient is
144144 111receiving medical treatment or is a resident.
145145 112 (c) The patient's attending physician at the time the request is signed shall not serve as a
146146 113witness.
147147 114 (d) If the patient is a patient in a long-term care facility at the time the written request is
148148 115made, one of the witnesses shall be an individual designated by the facility.
149149 116 Section 4.
150150 117 REQUEST FOR MEDICAL AID IN DYING MEDICATION PURSUANT TO THE
151151 118MASSACHUSETTS END OF LIFE OPTIONS ACT
152152 119 I,. . . . . . . . . . . . . . . , am an adult of sound mind and a resident of the State of
153153 120Massachusetts. I am suffering from . . . . . . . . . . . . . . , which my attending physician has
154154 121determined is a terminal illness or condition which can reasonably be expected to cause death
155155 122within 6 months. This diagnosis has been medically confirmed as required by law.
156156 123 I have been fully informed of my diagnosis, prognosis, the nature of the medical aid in
157157 124dying medication to be prescribed and potential associated risks, the expected result, and the 8 of 18
158158 125feasible alternatives and additional treatment opportunities, including, but not limited to, comfort
159159 126care, palliative care, hospice care, and pain control.
160160 127 I request that my attending physician prescribe medical aid in dying medication that will
161161 128end my life in a peaceful manner if I choose to take it, and I authorize my attending physician to
162162 129contact any pharmacist to fill the prescription.
163163 130 I understand that I have the right to rescind this request at any time. I understand the full
164164 131import of this request and I expect to die if I take the medical aid in dying medication to be
165165 132prescribed. I further understand that although most deaths occur within three hours, my death
166166 133may take longer and my physician has counseled me about this possibility. I make this request
167167 134voluntarily, without reservation, and without being coerced, and I accept full responsibility for
168168 135my actions.
169169 136 Signed:. . . . . . . . . . . . . . . Dated:. . . . . . . . . . . . . .
170170 137 DECLARATION OF WITNESSES
171171 138 By signing below, on the date the patient named above signs, we declare that the patient
172172 139making and signing the above request is personally known to us or has provided proof of
173173 140identity, and appears not to be under duress, fraud, or undue influence.
174174 141 Printed Name of Witness 1: . . . . . . . . . . . . . . .
175175 142 Signature of Witness l/Date:. . . . . . . . . . . . . . .
176176 143 Printed Name of Witness 2:. . . . . . . . . . . . . . .
177177 144 Signature of Witness 2/Date:. . . . . . . . . . . . . . . 9 of 18
178178 145 Section 5. (a) A qualified patient may at any time rescind the request for medication
179179 146under this chapter without regard to the qualified patient's mental state.
180180 147 (b) A prescription for medication under this chapter may not be written without the
181181 148attending physician offering the qualified patient an opportunity to rescind the request for
182182 149medication.
183183 150 Section 6. (a) The attending physician shall:
184184 151 (1) make the initial determination of whether an adult patient:
185185 152 (i) is a resident of this state;
186186 153 (ii) is terminally ill;
187187 154 (iii) is mentally capable; and
188188 155 (iv) has voluntarily made the request for medical aid in dying.
189189 156 (2) ensure that the patient is making an informed decision by discussing with the patient:
190190 157 (i) the patient’s medical diagnosis;
191191 158 (ii) the patient’s prognosis;
192192 159 (iii) the potential risks associated with taking the medication to be prescribed;
193193 160 (iv) the probable result of taking the medication to be prescribed; and
194194 161 (v) the feasible alternatives and additional treatment opportunities, including, but not
195195 162limited to, palliative care as defined in section 227 of chapter 111. 10 of 18
196196 163 (3) refer the patient to a consulting physician to medically confirm the diagnosis and
197197 164prognosis and for a determination that the patient is mentally capable and is acting voluntarily;
198198 165 (4) refer the patient for counseling pursuant to section 8;
199199 166 (5) ensure that sections 6 through 8, inclusive, are followed in chronological order;
200200 167 (6) have a prior clinical relationship with the patient, unless the patient’s primary care
201201 168physician is unwilling to participate;
202202 169 (7) recommend that the patient notify the patient's family or any person who plays a
203203 170significant role in an individual’s life;
204204 171 (8) recommend that the patient complete a Medical Order for Life-Sustaining Treatment
205205 172form;
206206 173 (9) counsel the patient about the importance of:
207207 174 (i) having another individual present when the patient takes the medication prescribed
208208 175under this chapter; and
209209 176 (ii) not taking the medication in a public place;
210210 177 (10) inform the patient that the patient may rescind the request for medication at any time
211211 178and in any manner;
212212 179 (11) verify, immediately prior to writing the prescription for medication, that the patient
213213 180is making an informed decision;
214214 181 (12) educate the patient on how to self-administer the medication; 11 of 18
215215 182 (13) fulfill the medical record documentation requirements of section 13;
216216 183 (14) ensure that all appropriate steps are carried out in accordance with this chapter
217217 184before writing a prescription for medication for a qualified patient; and
218218 185 (15) (i) dispense medications directly, including ancillary medications intended to
219219 186facilitate the desired effect to minimize the patient's discomfort, if the attending physician is
220220 187authorized under law to dispense and has a current drug enforcement administration certificate;
221221 188or
222222 189 (ii) with the qualified patient’s written consent;
223223 190 (A) contact a pharmacist, inform the pharmacist of the prescription, and
224224 191 (B) deliver the written prescription personally, by mail, or by otherwise permissible
225225 192electronic communication to the pharmacist, who will dispense the medications directly to either
226226 193the patient, the attending physician, or an expressly identified agent of the patient. Medications
227227 194dispensed pursuant to this paragraph shall not be dispensed by mail or other form of courier.
228228 195 (b) The attending physician may sign the patient's death certificate which shall list the
229229 196underlying terminal disease as the cause of death.
230230 197 Section 7. (a) Before a patient may be considered a qualified patient under this chapter
231231 198the consulting physician shall:
232232 199 (1) examine the patient and the patient's relevant medical records;
233233 200 (2) confirm in writing the attending physician's diagnosis that the patient is suffering
234234 201from a terminal illness; and 12 of 18
235235 202 (3) verify that the patient:
236236 203 (i) is mentally capable;
237237 204 (ii) is acting voluntarily; and
238238 205 (iii) has made an informed decision.
239239 206 Section 8. (a) An attending physician shall refer a patient who has requested medical aid
240240 207in dying medication under this chapter to counseling to determine that the patient is not suffering
241241 208from a psychiatric or psychological disorder or depression causing impaired judgment. The
242242 209licensed mental health professional shall review the medical history of the patient relevant to the
243243 210patient’s current mental health and then shall submit a final written report to the prescribing
244244 211physician.
245245 212 (b) The medical aid in dying medication may not be prescribed until the individual
246246 213performing the counseling determines that:
247247 214 (1) the patient is not suffering from a psychiatric or psychological disorder or depression
248248 215causing impaired judgment; and
249249 216 (2) there is no reason to suspect coercion in the patient’s decision-making process.
250250 217 Section 9. A qualified patient may not receive a prescription for medical aid in dying
251251 218medication pursuant to this chapter unless the patient has made an informed decision.
252252 219Immediately before issuing a prescription for medical aid in dying medication under this chapter
253253 220the attending physician shall verify that the qualified patient is making an informed decision. 13 of 18
254254 221 Section 10. The attending physician shall recommend that a patient notify the patient's
255255 222family or any person who plays a significant role in an individual’s life of the patient's request
256256 223for medical aid in dying medication pursuant to this chapter. A request for medical aid in dying
257257 224medication shall not be denied because a patient declines or is unable to notify the family or any
258258 225person who plays a significant role in an individual’s life.
259259 226 Section 11. The following items shall be documented or filed in the patient's medical
260260 227record:
261261 228 (1) the determination and the basis for determining that a patient requesting medical aid
262262 229in dying medication pursuant to this chapter is a qualified patient;
263263 230 (2) all oral requests by a patient for medical aid in dying medication;
264264 231 (3) all written requests by a patient for medical aid in dying medication made pursuant to
265265 232sections 3 through 5, inclusive;
266266 233 (4) the attending physician's diagnosis, prognosis, and determination that the patient is
267267 234mentally capable, is acting voluntarily, and has made an informed decision;
268268 235 (5) the consulting physician's diagnosis, prognosis, and verification that the patient is
269269 236mentally capable, is acting voluntarily, and has made an informed decision;
270270 237 (6) a report of the outcome and determinations made during counseling;
271271 238 (7) the attending physician's offer before prescribing the medical aid in dying medication
272272 239to allow the qualified patient to rescind the patient's request for the medication; 14 of 18
273273 240 (8) other care options that were offered to the patient, including, but not limited to,
274274 241hospice and palliative care; and
275275 242 (9) a note by the attending physician indicating:
276276 243 (a) that all requirements under this chapter have been met; and
277277 244 (b) the steps taken to carry out the request, including a notation of the medication
278278 245prescribed.
279279 246 Section 12. Any medical aid in dying medication dispensed under this chapter that was
280280 247not self-administered shall be disposed of by lawful means. The medication dispenser shall be
281281 248responsible for informing the individual collecting the medication what disposal by lawful means
282282 249entails.
283283 250 Section 13. Physicians shall keep a record of the number of requests for medical aid in
284284 251dying medication; number of prescriptions written; number of requests rescinded; the number of
285285 252qualified patients that took the medication under this chapter; the general demographic and
286286 253socioeconomic characteristics of the patient, and any physical disability of the patient. This data
287287 254shall be reported to the department of public health annually, and shall subsequently be made
288288 255available to the public.
289289 256 Section 14. (a) Any provision in a contract, will, or other agreement, whether written or
290290 257oral, to the extent the provision would affect whether a patient may make or rescind a request for
291291 258medical aid in dying medication pursuant to this chapter, is not valid.
292292 259 (b) A qualified patient's act of making or rescinding a request for medical aid in dying
293293 260shall not provide the sole basis for the appointment of a guardian or conservator. 15 of 18
294294 261 (c) A qualified patient’s act of self-administering medical aid in dying medication
295295 262obtained pursuant to this act shall not constitute suicide or have an effect upon any life, health, or
296296 263accident insurance or annuity policy.
297297 264 (d) Actions taken by health care providers and patient advocates supporting a qualified
298298 265patient exercising his or her rights pursuant to this chapter, including being present when the
299299 266patient self-administers medical aid in dying medication, shall not for any purpose, constitute
300300 267elder abuse, neglect, assisted suicide, mercy killing, or homicide under any civil or criminal law.
301301 268 (e) State regulations, documents and reports shall not refer to the practice of medical aid
302302 269in dying under this chapter as "suicide" or "assisted suicide."
303303 270 Section 15. (a) A health care provider may choose not to practice medical aid in dying.
304304 271 (b) A health care provider or professional organization or association may not subject an
305305 272individual to censure, discipline, suspension, loss of license, loss of privileges, loss of
306306 273membership, or other penalty for participating or refusing to participate in providing medical aid
307307 274in dying medication to a qualified patient under this chapter.
308308 275 (c) If a health care provider is unable or unwilling to carry out a patient's request under
309309 276this chapter and the patient transfers care to a new health care provider, the prior health care
310310 277provider shall transfer, upon request, a copy of the patient's relevant medical records to the new
311311 278health care provider.
312312 279 (d) (1) Health care providers shall maintain and disclose upon request their written
313313 280policies outlining the extent to which they refuse to participate in providing to a qualified patient
314314 281any medical aid in dying medication under this chapter. 16 of 18
315315 282 (2) The required consumer disclosure shall at minimum:
316316 283 (i) include information about this chapter;
317317 284 (ii) identify the specific services in which the health care provider refuses to participate;
318318 285 (iii) clarify any difference between institution-wide objections and those that may be
319319 286raised by individual licensed providers who are employed or work on contract with the provider;
320320 287 (iv) describe the mechanism the provider will use to provide patients a referral to another
321321 288provider or provider in the provider’s service area who is willing to perform the specific health
322322 289care service;
323323 290 (v) describe the provider’s policies and procedures relating to transferring patients to
324324 291other providers who will implement the health care decision; and
325325 292 (vi) inform consumers that the cost of transferring records will be borne by the
326326 293transferring provider.
327327 294 (c) The consumer disclosure shall be provided to an individual upon request.
328328 295 (d) A health care entity that prohibits health care providers from qualifying, prescribing,
329329 296or dispensing medication pursuant to this chapter while they are performing duties for the entity
330330 297shall provide notice of such policy to the public by posting the information on its website.
331331 298 Section 16. (a) Purposely or knowingly altering or forging a request for medical aid in
332332 299dying medication under this chapter without authorization of the patient or concealing or
333333 300destroying a rescission of a request for medical aid in dying medication is punishable as a felony
334334 301if the act is done with the intent or effect of causing the patient's death. 17 of 18
335335 302 (b) An individual who coerces or exerts undue influence on a patient to request medical
336336 303aid in dying medication, or to destroy a rescission of a request, shall be guilty of a felony
337337 304punishable by imprisonment in the state prison for not more than 3 years or in the house of
338338 305correction for not more than 2½ years or by a fine of not more than $1,000 or by both such fine
339339 306and imprisonment.
340340 307 (c) Nothing in this chapter limits further liability for civil damages resulting from other
341341 308negligent conduct or intentional misconduct by any individual.
342342 309 (d) The penalties in this chapter do not preclude criminal penalties applicable under other
343343 310law for conduct inconsistent with the provisions of this chapter.
344344 311 Section 17. A governmental entity that incurs costs resulting from a qualified patient self-
345345 312administering medical aid in dying medication in a public place while acting pursuant to this
346346 313chapter may submit a claim against the estate of the patient to recover costs and reasonable
347347 314attorney fees related to enforcing the claim.
348348 315 Section 18. If an emergency medical provider finds a patient who has self-administered
349349 316medical aid in dying medication, they shall follow standard resuscitation protocol. If a Medical
350350 317Order for Life-Sustaining Treatment or other legally recognized do-not-resuscitate order is
351351 318found, then the medical provider shall follow the directives of the form.
352352 319 Section 19. Nothing in this chapter may be construed to authorize a physician or any
353353 320other individual to end a patient's life by lethal injection, mercy killing, assisted suicide, or active
354354 321euthanasia. 18 of 18
355355 322 Section 20. If any provision of this chapter or its application to any individual or
356356 323circumstance is held invalid, the remainder of the act or the application of the provision to other
357357 324individuals or circumstances is not affected.