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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsNovember 2015

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16 DE Admin. Code 4304
Copies of the proposed regulations are available for review in the November 1, 2015 edition of the Delaware Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Division of Public Health at (302) 744-4951.
Purpose: There is a need to update the existing 2003 Pre-Hospital Advance Care Directive (“PACD”) regulations (7 Del. Reg. 85, July 1, 2003) to address the recognition of advance care directives across all health care settings, including, but not limited to, hospitals, long-term care facilities, hospices, emergency medical transport, and home care. As provided in Chapter 25 of Title 16 of the Delaware Code, advance care directives permit individuals to give instructions about their own health care in case they later lack the capacity to do so.
These regulations require the use of a designated form which can be readily recognized and verified during an emergency situation. Since the creation of the PACD form, the practice and use of similar forms has evolved in states across the country. The Medical Orders for Life-Sustaining Treatment (“MOLST”) form reflects the dominant national trend and is being adopted as an updated version of the PACD form.
Delaware’s current PACD loses its authority when a patient changes locations. Patients at the end of life often move from home to hospital to nursing home and with each move, forms and orders must be redone.
Emergency medical services (EMS) personnel work under the license of the State EMS Medical Director. In order for EMS personnel to honor an individual’s request related to end of life decisions, the EMS must have a medical order. The MOLST form serves both as the summary of the individual’s advance care planning decisions and as the medical order.
These MOLST/PACD regulations authorize the Division of Public Health/Office of Emergency Medical Services in conjunction with the Board of Medical Licensure and Discipline, the Delaware Fire Prevention Commission, and other key groups within the State to develop and implement MOLST/PACD protocol. These regulations, protocol, and form standardize the legal advance care directive documentation so that EMS and all health care providers have a readily recognizable form which sets forth the patients’ preferences regarding provision of life-sustaining treatments. The MOLST/PACD forms allow EMS and other health care providers both to identify and to honor an individual’s wishes to the greatest extent possible and to grant individuals the dignity, humanity, and compassion they deserve. Consistent with this intent, other health care providers may choose to honor this form. (Delaware MOLST, Medical Orders for Life-Sustaining Treatment, form is available in PDF format).
“Advance Health Care Directive” shall mean an individual instruction or power of attorney for health care, or both.
“Agent” shall mean an individual designated as power of attorney for health care to make a health care decisions for the individual granting the power.
Artificial Nutrition And Hydration” means supplying food and water through a conduit, such as a tube or intravenous line where the recipient is not required to chew or swallow voluntarily, including, but not limited to, nasogastric tubes, gastrostomies, jejunostomies and intravenous infusions. Artificial nutrition and hydration does not include assisted feeding, such as spoon or bottle-feeding.
“Capacity” shall mean an individual’s ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health care decision.
“Declarant” shall mean an individual who executes an advance health care directive.
“Division” shall mean the Division of Public Health.
DNR” shall mean Do Not Resuscitate.
Emergency Medical Services (EMS) Provider” shall mean individual providers certified by the Delaware State Fire Commission or the Office of Emergency Medical Services, within the Division of Public Health, Department of Health and Social Services or emergency certified medical dispatchers by the National Academy of Emergency Medical Dispatch.
Emergency Medical Services (EMS) Provider Agency” shall mean a provider agency certified by the Delaware State Fire Prevention Commission or the Office of Emergency Medical Services, or an emergency medical dispatch center under contract with the Department of Public Safety.
“EMS Prehospital Advanced Care Directive Order (PACD)” shall mean an advanced health care directive signed by the individual’s physician on forms approved by the Director of the Division of Public Health.
“EMS PACD Program” shall mean the regulations and administrative guidelines promulgated by the Division of Public Health for the administration of this Act.
“Guardian” shall mean a judicially appointed guardian or conservator having authority to make health care decisions for an individual.
“Health Care” shall mean any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual’s physical or mental condition.
“Health Care Decision” shall mean a decision made by an individual or the individual’s agent, surrogate or guardian regarding the individual’s health care, including:
“Health Care Institution” means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of profession.
“Individual” means an individual person, legally adult.
“Individual Instruction” means an individual’s direction concerning a health-care decision for the individual.
Medical Orders for Life-Sustaining Treatment” (“MOLST”) means a specific order set for scope of medical treatment and provided on the MOLST form approved by the Division of Public Health.
“Medically Ineffective Treatment” means that, to a reasonable degree of medical certainty, a medical procedure will not:
“Office” shall mean the Office of Emergency Medical Services (EMS) within the Division of Public Health.
"PACD" means an EMS prehospital advanced care directive signed by the individual and the individual’s physician, on forms approved by the Director of Public Health.
Permanent Unconsciousness” means a medical condition that has existed for at least 4 weeks and that has been diagnosed in accordance with currently accepted medical standards and with reasonable medical certainty as total and irreversible loss of consciousness and capacity for interaction with the environment. The term includes, without limitation, a persistent vegetative state or irreversible coma. This condition must be certified in writing in the patient's medical record by the attending physician and by at least 1 other physician who shall be a board-certified neurologist and/or neurosurgeon.
“Physician” means an individual licensed to practice medicine under Chapter 17 of Title 24 of the Delaware Code.
“Power Of Attorney For Health Care” means the designation of an agent to make health care decisions for the individual granting the power.
“Primary Physician” or “Attending Physician” shall mean a physician designated by an individual or the individual’s agent, surrogate or guardian to have primary responsibility for the individual’s health care or, in the absence of a designation, or if the designated physician is not reasonably available, a physician who undertakes the responsibility for the individual’s health care.
“Reasonably Available” shall mean readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the individual’s health care needs.
“Supervising Health Care Provider or Health Care Provider” shall mean the primary physician, or if there is no primary physician or the primary physician is not reasonably available, the health care provider who has undertaken primary responsibility for an individual’s health care.
“Surrogate” means an adult individual or individuals who (1) have capacity; (2) are reasonably available; (3) are willing to make health care decisions, including decisions to initiate, refuse to initiate, continue or discontinue the use of a life sustaining procedure on behalf of a patient who lacks capacity; and (4) are identified by the attending physician in accordance with 16 Del.C. §2507 as the person or persons who are to make those decisions.
“Terminal Condition” means any disease, illness or condition sustained by any human being for which there is no reasonable medical expectation of recovery and which, as a medical probability will result in the death of such human being regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life or the life processes.
5.1.2.1.2 Existing IV lines may be in place and, if so, shall be monitored to the extent possible according to the provider’s level of certification and licensure.
16 Del.C. §2513(b) makes willful concealment, destruction, falsification or forging of an advance directive, without the individual's or authorized decision maker's consent, a class C felony.
12.1 In addition to other immunity that may be provided for in law, 16 Del.C. §2510 provides specific immunity in cases involving the provision, withdrawal, or withholding of care which may be life sustaining in nature.
These DMOST regulations implement 16 Del.C. Ch. 25A which authorizes the Division of Public Health/Office of Emergency Medical Services, in conjunction with the Board of Medical Licensure and Discipline, the Delaware EMS Oversight Council, the Delaware State Fire Prevention Commission, and other key groups within the State to develop and implement DMOST regulations and protocol. These regulations, protocol, and form standardize documentation so that Emergency Medical Service (EMS) personnel and all health-care providers have a readily recognizable form which sets forth a patient’s preferences regarding the provision of and the scope of treatment. The DMOST form allows EMS personnel and other health-care providers both to identify and to honor an individual’s wishes to the greatest extent possible and to grant individuals the dignity, humanity, and compassion they deserve.
"Advance health-care directive (AHCD)” means an advance health-care directive under 16 Del.C. Ch. 25, a durable power of attorney for health-care decisions, or any individual instruction or power of attorney for health care valid under Delaware law in the state where such document was executed or where the individual executing such document was a resident at the time that such document appointing an agent was executed. Said document must have been executed by the individual authorizing the appointed agent to make decisions about the individual's health care when such individual no longer has decision-making capacity.
Decision-making capacity” means a patient's ability to understand and appreciate the nature and consequences of a particular health-care decision, including the benefits and risks of that decision and alternatives to any proposed health care treatment, and to reach an informed health-care decision.
Delaware Medical Orders for Scope of Treatment (DMOST)” means a clinical process to facilitate communication between health-care professionals and a patient living with serious illness or frailty whose health-care practitioner would not be surprised if the patient died within the next year or, if the patient lacks decision-making capacity, the patient’s authorized representative. The process encourages shared, informed medical decision-making.The decisions are memorialized in a completed DMOST form, which contains portable medical orders that respect the patient’s goals for care with respect to the use of CPR and other life-sustaining treatments and medical interventions. The DMOST form is applicable across health-care settings, is reviewable, and can be voided.
Department” means the Department of Health and Social Services.
DMOST form” means the standardized document created by the Department that is identified as an Attachment to these regulations, which:
Emergency-care provider” means an emergency medical technician, paramedic, or first responder authorized under 16 Del.C. Ch 97.
Health-care institution” means an institution, facility, or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business.
Health-care practitioner” means a physician or an individual licensed and authorized to write medical orders pursuant to 24 Del.C. Ch. 17 and Ch. 19 who is providing care for the patient or overseeing the health care provided to the patient and has completed all training required by the Department for individuals participating in the completion of a DMOST form. Over time, a patient’s health-care practitioner may change.
Health-care provider” means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession. A health-care practitioner is also a health-care provider.
Life-sustaining treatment” includes any medical intervention, including procedures, administration of medication, or use of a medical device, that maintains life by sustaining, restoring, or supplanting a vital function. It does not include care provided for the purpose of keeping a patient comfortable.
Patient” means an individual who is under the care of the health-care practitioner or health-care provider.
Patient’s authorized representative” or “authorized representative” means the individual signing a DMOST form on behalf of a patient without decision-making capacity, who has the highest priority to act for the patient under law, and who has the authority to make decisions with respect to the patient’s health-care preferences being made on the DMOST form. The health-care practitioner shall determine the individual who is the patient’s authorized representative by referencing the documentation giving such individual the required authority under law. Based on the documentation provided by such individual as evidence of his or her authority, the patient’s authorized representative could be an individual designated by a patient under an advance health-care directive, an agent under a medical durable power of attorney for health-care decisions, a guardian of the person appointed pursuant to 12 Del.C. Ch. 39 or Ch. 39A, in accordance with the authority granted by the appointing court, a surrogate appointed under 16 Del.C. Ch. 25, or an individual who is otherwise authorized under applicable law to make the health-care decisions being made by execution of the DMOST form on the patient’s behalf, if the patient lacks decision-making capacity.
Scope of treatment” means those medical interventions, procedures, medications, and treatments that a patient, in consultation with a health-care practitioner, has determined are appropriate, necessary, and desired by and for the patient and will always include the provision of comfort measures. A patient may decline life-sustaining treatment.
Serious illness or frailty” means a condition for which a health-care practitioner would not be surprised if a patient died within the next year.
4.9.2.3 If the there is no Guardian or Agent or if the designated Guardian or Agent is unavailable, or if the patient revoked an Advance Health Care Directive pursuant to 16 Del.C. §2504, the Surrogate Statute applies and will allow either the individual named by the patient prior to losing decision-making capacity or if none, the individual recognized by the Surrogate Statute, 16 Del.C. §2507, to act.
Q. What is DMOST?
A. The Delaware Medical Orders for Scope of Treatment (DMOST) form is a portable medical order form. It allows you to make choices about life-sustaining treatments, including among other treatments, CPR (resuscitation) and artificial nutrition.You may request full treatment, limited treatment, or comfort care only.
Q. Who is it for?
A. A DMOST form can be used by a person with a serious illness or frailty, whose health-care practitioner would not be surprised if they died within the next year.
Q. When should it be discussed and signed? Who signs it?
A. A DMOST form is completed after a conversation you have with a health care practitioner. It is signed by you and a physician (MD or DO), an advanced practice registered nurse (APRN), or a physician assistant (PA). The physician/APRN/PA signature makes the choices into portable medical orders.
Q. Who is required to follow the wishes documented on the DMOST form?
A. These orders will be followed by health care providers in any setting (ambulance, long-term care facility, emergency room, hospital, hospice, home, assisted living facility, etc.). It travels with you and is honored when you move to a new setting.
Q. Can someone else make DMOST decisions for me?
A. You make health-care decisions for yourself as long as you have decision-making capacity. You have the right to change your authorized representative at any time while you have decision-making capacity.
Q. What if I change my mind?
A. If your condition or your choices change, you or your authorized representative should void (cancel) your DMOST form and request a new DMOST be completed with your new choices. You can void a DMOST form if you change your mind but do not want to create a new one. You may not make any changes to the content of the DMOST form. If you want to change your DMOST form you must void your previous form and complete a new one with your health-care practitioner. If your DMOST form does not agree with your advance directive, the most recent document will be followed.
Q. Must I do this?
A. The DMOST form is always voluntary and can be voided at any time. A Health care organization is prohibited from requiring you to complete a DMOST form for any reason, including as part of a person’s admission to a health care facility.
Q. What will happen to my choices if I travel out of state?
A. Many states, including all the states in our region, currently use a form similar to the DMOST form. Forms from those states which are valid under the Delaware Law will be honored in Delaware. DMOST forms will be honored in other states which have reciprocity.
Last Updated: December 31 1969 19:00:00.
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