AB1078: Bill Text

LRB-5523/1

SWB:skw&cjs

2021 - 2022 LEGISLATURE

2021 Assembly BILL 1078

March 7, 2022 - Introduced by Representatives Pope, Hesselbein, Subeck, Baldeh, Spreitzer, Conley, Vruwink, Sinicki, Snodgrass, B. Meyers, Ohnstad and Anderson, cosponsored by Senators Agard, Bewley, Carpenter, Smith and Roys. Referred to Committee on Constitution and Ethics.

AB1078,1,3 An Act to create chapter 156 and 979.01 (1j) of the statutes; relating to: permitting certain qualified individuals to make a request for medication for the purpose of ending their lives and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill permits an individual who is at least 18 years of age, mentally capable, and has a terminal disease with a prognosis of less than six months to live to voluntarily request a prescription for medication for the purpose of ending his or her life. Under the bill, “terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. The bill authorizes the individual's attending provider to issue a prescription for the medication if specified requirements are met. Under the bill, an attending or consulting provider must be a licensed physician, an advanced practice registered nurse, or a physician assistant. Death following self-administering medication in accordance with the requirements of the bill does not alone constitute grounds for post-mortem inquiry and such a death may not be designated as suicide or homicide.

The bill requires that the Department of Health Services develop and distribute certain standard forms to be used for reporting by attending providers in the context of requests for medication under the provisions of the bill.

The bill establishes certain requirements that must be met before an attending provider may issue a prescription in response to an individual's request for a prescription for medication to end his or her life. With certain exceptions for an individual who is determined to be within 15 days of death, a qualified individual must make an oral request and a written request, and reiterate the oral request to his or her attending provider no less than 15 days after making the initial oral request. The oral and written requests for medical aid in dying may only be made by the requesting individual and not by any surrogate decision-maker, health care proxy, attorney-in-fact for health care, or through an advance health care directive. The written request must be substantially in the form provided in the bill. It must be signed and dated by the individual and witnessed by at least one individual who meets certain qualifications and attests that the individual is capable, acting voluntarily, and is not being coerced or unduly influenced to sign the request.

The bill requires an attending provider to comply with certain requirements with respect to requests for medication under the bill, including 1) determining whether an individual has a terminal disease with a prognosis of six months or less to live and is mentally capable; 2) confirming that the individual's request does not arise from coercion or undue influence; 3) informing the individual of certain information specified in the bill, including the potential risks, benefits, and probable result of self-administering the prescribed medication; 4) informing the individual that there is no obligation to fill the prescription nor an obligation to self-administer the medication, even if obtained; 6) providing a referral for comfort care, palliative care, hospice care, pain control, or other end-of-life treatment options as requested or as medically indicated; 7) referring the individual to a consulting provider for medical confirmation that the individual requesting medication under the bill both has a terminal disease with a prognosis of six months or less to live and is mentally capable; and 8) before providing a prescription, confirming that the individual has made an informed decision to obtain medication under the bill, offering the individual an opportunity to rescind the request, and educating the individual on the recommended procedure for self-administration of the medication, the safe-keeping and proper disposal of unused medication, the importance of having another person present when the person self-administers the medication, and not taking the medication in a public place. Under the bill, a consulting provider must evaluate an individual making a request for medication under the provisions of the bill and confirm, in writing, to the attending provider that the individual has a terminal disease with a prognosis of six months or less to live; that the individual is mentally capable or that the consulting provider has referred the individual to a licensed mental health provider for further evaluation; and that the individual is acting voluntarily, free from coercion or undue influence. The bill requires that if either the attending provider or the consulting provider is unable to confirm that the individual is capable of making an informed decision, the attending provider or the consulting provider must refer the individual to a licensed mental health provider for determination regarding mental capability.

The bill specifies that a provider may choose whether or not to practice medical aid in dying under the provisions of the bill, but if a provider is unable or unwilling to fulfill an individual's request for medication under the bill, the provider must still document the date of the individual's request in the patient's medical record and, if requested, transfer the individual's medical records to a new provider. The bill also specifies that a health care facility may prohibit providers from qualifying, prescribing, or dispensing medication under the provisions of the bill while performing duties for the facility, but if it does so, it must provide advance notice to providers and staff in writing, and then on a yearly basis. If an individual wishes to transfer to another facility, the facility must coordinate a timely transfer. Finally, no health care facility may prohibit a provider from fulfilling the requirements of informed consent and meeting the medical standard of care, including by allowing a provider to prescribe medication under the provisions of the bill outside of the scope of the provider's employment or contract with the prohibiting facility and off the premises of the the prohibiting facility.

The bill includes immunity for actions taken in good faith, but also includes penalties for intentionally or knowingly 1) altering or forging an individual's request for medication under the bill; 2) concealing or destroying a rescission of a request for medication under the bill; or 3) coercing or exerting undue influence on an individual with a terminal disease to request or use medication under the bill. The bill expressly does not not limit civil liability or damages arising from negligent conduct or intentional misconduct.

Under the bill, insurance, including insurance rates, may not be conditioned on or affected by an individual's act of making or rescinding a request for medication under the provisions of the bill. Further, a qualified individual's act of self-administering medication consistent with the provisions of the bill does not invalidate any part of a life, health, or accident insurance policy, or an annuity policy. Finally, no insurance plan may deny or alter benefits to an individual with a terminal disease who is a covered beneficiary based on the availability of medical aid in dying, the individual's request for medication under the provisions of the bill, or the absence of such a request.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1078,1 Section 1 . Chapter 156 of the statutes is created to read:

AB1078,3,3 Chapter 156 medical aid in dying

AB1078,3,5 156.01 Short title. This chapter shall be known and may cited as the “Our Care, Our Options Act."

AB1078,4,1 156.03 Definitions. In this chapter:

AB1078,4,2 (1) “Adult” means an individual who is 18 years of age or older.

AB1078,4,4 (2) “Attending provider” means the provider who has primary responsibility for the care of an individual and treatment of that individual's terminal disease.

AB1078,4,6 (3) “Coercion or undue influence” means the willful attempt, whether by deception, intimidation, or any other means, to do any of the following:

AB1078,4,8 (a) Cause an individual to request, obtain, or self-administer medication under this chapter with intent to cause the death of the individual.

AB1078,4,10 (b) Prevent a qualified individual from obtaining or self-administering medication under this chapter.

AB1078,4,13 (4) “Consulting provider” means a provider who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding an individual's disease.

AB1078,4,14 (5) “Department” means the department of health services.

AB1078,4,17 (6) “Health care facility” means a general hospital, medical clinic, nursing home, or in-patient hospice facility or any other entity regulated under ch. 50. A health care facility does not include individual providers.

AB1078,4,21 (7) “Informed decision” means a decision by a qualified individual to request and obtain a prescription for medication under this chapter that the qualified individual may self-administer to bring about his or her peaceful death, after being fully informed by the individual's attending provider of all of the following:

AB1078,4,22 (a) The individual's diagnosis and prognosis.

AB1078,4,23 (b) The potential risks associated with taking the medication to be prescribed.

AB1078,4,24 (c) The probable result of taking the medication to be prescribed.

AB1078,5,3 (d) The feasible end-of-life care and treatment options for the individual's terminal disease, including comfort care, palliative care, hospice care and pain control, and the risks and benefits of each.

AB1078,5,5 (e) The individual's right to withdraw a request under this chapter or consent for any other treatment at any time.

AB1078,5,9 (8) Notwithstanding sub. (13), “licensed mental health care provider” means a psychiatrist, psychologist, clinical social worker, psychiatric nurse practitioner, clinical mental health counselor, or clinical professional counselor licensed, certified, or otherwise credentialed in this state.

AB1078,5,12 (9) “Medical aid in dying” means the practice of evaluating a request, determining qualification, and providing a prescription to a qualified individual under this chapter.

AB1078,5,15 (10) “Medically confirmed” means that a consulting provider, after performing a medical evaluation, has confirmed an attending provider's medical opinion that an individual is eligible to receive medication under this chapter.

AB1078,5,19 (11) “Mentally capable” means that in the opinion of an attending provider or consulting provider, or a licensed mental health care provider if a determination is requested under s. 156.17, an individual requesting medication under this chapter has the ability to make and communicate an informed decision.

AB1078,5,22 (12) “Prognosis of six months or less” means an individual's terminal disease will, within reasonable medical judgment, result in the death of that individual within six months.

AB1078,6,2 (13) “Provider” means a person licensed, certified, or otherwise authorized or permitted by this state to diagnose and treat medical conditions and prescribe and dispense medication, including controlled substances, but does not include a health care facility. Provider includes any of the following:

AB1078,6,3 (a) A physician licensed under ch. 448.

AB1078,6,4 (b) An advanced practice registered nurse, as defined in s. 154.01 (1g).

AB1078,6,5 (c) A physician assistant licensed under subch. VIII of ch. 448.

AB1078,6,9 (14) “Qualified individual” means a mentally capable adult who has satisfied the requirements of this chapter in order to obtain a prescription for medication to bring about a peaceful death. No person will be considered a “qualified individual” under this chapter solely because of advanced age or disability.

AB1078,6,13 (15) “Self-administer” means a qualified individual performs an affirmative, conscious, and voluntary act to ingest medication prescribed under this chapter to bring about the individual's peaceful death. Self-administration does not include administration by intravenous or other parenteral injection or infusion.

AB1078,6,16 (16) “Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.

AB1078,6,20 156.05 Informed consent. (1) Nothing in this chapter may be construed to limit the information a provider must provide to an individual in order to comply with the medical standard of care and with informed consent requirements under state law.

AB1078,6,22 (2) If a provider is unable or unwilling to fulfill a request for medication under this chapter, the provider shall proceed as required under s. 156.21 (2).

AB1078,7,2 (3) Failure by a provider to provide information about medical aid in dying to an individual who requests it, or failure to refer the individual to another provider who can provide the information upon request, shall constitute a failure to obtain informed consent for subsequent medical treatments.

AB1078,7,4 156.07 Standard of care. (1) Care that complies with the requirements of this chapter meets the medical standard of care.

AB1078,7,7 (2) Nothing in this chapter exempts a provider or other medical personnel from meeting the medical standard of care for the treatment of individuals with a terminal disease.

AB1078,7,12 156.09 Qualification. (1) A mentally capable adult with a terminal disease and a prognosis of six months or less may request a prescription for medication under this chapter. A qualified individual shall have made an oral request and a written request, and reiterated the oral request to the individual's attending provider no less than 15 days after making the initial oral request.

AB1078,7,15 (2) The attending provider and consulting provider of a qualified individual shall have met each of their respective requirements as set forth in ss. 156.13 and 156.15.

AB1078,7,21 (3) Notwithstanding sub. (1), if an individual's attending provider has medically determined that the individual will, within reasonable medical judgment, die within 15 days after making an initial oral request under sub. (1), the 15-day waiting period set forth in sub. (1) is waived and the individual may reiterate the oral request to the attending provider as required under sub. (1) at any time after making the initial oral request.

AB1078,7,23 (4) At the time an individual makes the second oral request, the individual's attending provider shall offer the individual an opportunity to rescind the request.

AB1078,8,2 (5) Oral and written requests for medical aid in dying may be made only by the requesting individual and may not be made by the individual's surrogate decision-maker, health care proxy, attorney-in-fact for health care, or through an advance health care directive.

AB1078,8,6 (6) If an individual decides to transfer care to another provider, the former provider shall transfer all relevant medical records, including written documentation of the date of the individual's request or requests concerning medical aid in dying.

AB1078,8,12 156.11 Form of written request. (1) A valid written request for medication under this chapter shall be signed and dated by the requesting individual, and witnessed by at least one person who, in the presence of the requesting individual, attests that, to the best of the witness's knowledge and belief, the individual is capable, acting voluntarily, and is not being coerced nor unduly influenced to sign the request.

AB1078,8,14 (2) The witness required under this section must be a person who is not any of the following:

AB1078,8,15 (a) A relative of the requesting individual by blood, marriage, or adoption.

AB1078,8,18 (b) A person who at the time the request is signed would be entitled to any portion of the estate of the requesting individual upon death under any will or by operation of law.

AB1078,8,20 (c) An owner, operator, or employee of a health care facility where the requesting individual is receiving medical treatment or is a resident.

AB1078,8,22 (3) The requesting individual's attending provider at the time the request is signed may not be a witness.

AB1078,8,23 (4) The requesting individual's interpreter may not be a witness.

AB1078,8,25 (5) The written request for medication shall be in substantially the following form:

AB1078,9,1 REQUEST FOR MEDICATION

AB1078,9,2 TO END MY LIFE IN A

AB1078,9,3 PEACEFUL MANNER

AB1078,9,6 I, .... (insert name), am an adult of sound mind. I have been diagnosed with .... (insert description of terminal disease), and given a prognosis of six months or less to live.

AB1078,9,11 I have been fully informed of the feasible alternatives, concurrent or additional treatment opportunities for my terminal disease, including comfort care, palliative care, hospice care, or pain control and the potential risks and benefits of each. I have been offered or received resources or referrals to pursue these alternative, concurrent or additional treatment opportunities for my terminal disease.

AB1078,9,16 I have been fully informed of the nature of the medication to be prescribed and the risks and benefits, including that the likely outcome of self-administering the medication is death. I understand that I can rescind this request at any time, that I am under no obligation to fill the prescription once written nor to self-administer the medication if I obtain it.

AB1078,9,20 I request that my attending provider furnish a prescription for medication that will end my life in a peaceful manner if I choose to self-administer it, and I authorize my attending provider to contact a pharmacist to dispense the prescription at a time of my choosing.

AB1078,9,21 I make this request voluntarily, free from coercion or undue influence.

AB1078,9,22 Signed: ....

AB1078,9,23 Dated: ....

AB1078,9,24 Witness Signature: ....

AB1078,9,25 Dated: ....

AB1078,10,3 156.13 Attending provider responsibilities. (1) The attending provider for an individual shall do all of the following with regard to requests for medication under this chapter: