What's Wrong with POLST?

Prior to 1991, the only portable medical orders that allowed patients to stipulate their wishes for resuscitation following a cardiac event were called Do Not Resuscitate orders, often abbreviated DNR. Do Not Resuscitate orders are medical orders issued by a physician (in most states) after consultation with the patient. Most often, DNR orders are issued for persons who suffer from one or more health issues such as heart, lung, kidney, or liver disease, but age is also a factor.   A physician typically discusses the risks of CPR and the expected quality of life following CPR, but it’s ultimately the patient’s decision as to whether they want to have a DNR order issued, and a patient has the right to cancel their DNR order at any time.

DNR orders have been around for over fifty years, but the exact way that DNR is administered is controlled at the state level. Some states have gone to great lengths to serve their population while others have not. In one state, DNR’s aren’t issued unless the physician feels the patient is within 6 months of dying. In another state, a church can initiate a request for a church member to have a DNR. And, in another state, a resident can communicate their wishes by simply wearing a bracelet that says ‘NO CPR’. Most states don’t have reciprocal agreements with other states – not even adjoining states. For example, if an individual with a New York DNR order travels to Florida and then experiences a cardiac event, it’s likely that the New York DNR won’t be honored, and the patient’s wishes will be ignored.

One of the biggest failings of the DNR system in America has to do with communication and legal liability. If a patient with a DNR order suffers a cardiac event at a restaurant, for example, and emergency medical personnel aren’t aware that she has a DNR order because she’s unable to communicate that to them, they will resuscitate her. If a paramedic fails to resuscitate a patient following a cardiac event, they can be held personally liable if the patient suffers harm as a result of the resuscitation, and the legal liability doesn’t stop there. If they work for a municipal government, that government entity can also be named in a legal action. If the medical professional is licensed by the state’s Department of Health, the state can be named as well unless the paramedic can be certain that the individual as a valid Do Not Resuscitate order that was signed by a state-licensed physician.

In the early days of DNR, the vast majority of DNR patients were either homebound or institutionalized. Homebound patients were told to post a copy of their DNR order on their refrigerator, and paramedics made it a practice to check there for a DNR as soon as they entered a person’s home. If the individual was institutionalized, the DNR order would be made a part of the patient’s chart, and a wristband might be applied to help identify that they had a DNR. As DNR evolved and the benefits of having advanced directives and DNR orders become top of mind, physicians began having ‘the talk’ with their patients to discuss end of life planning.

In 1990 the Patient Self Determination Act (PSDA) was passed by Congress to ensure that patients could play a role in determining their medical care as they aged. It required medical institutions to document living wills and powers of attorney in a patient’s chart, and to legalize those instruments as valid in each state. Following passage of the PSDA, physicians made it a regular practice to discuss end of life treatment options with their patients. More individuals who were neither homebound nor institutionalized chose to either create an advanced directive and/or request a DNR order to be issued, and that presented a new challenge for EMT’s and paramedics – namely, how to ascertain if a patient ‘out in the community’ has a valid DNR order. Unlike many medical interventions, the decision to employ CPR is one that needs to be made quickly. If a patient is unable to produce their signed DNR order (possibly because they’re unconscious), emergency medical personnel have no choice but to resuscitate to avoid legal liability.

Recognizing this potential shortcoming, several states began enacting statutes that permitted a state-authorized medical id bracelet to substitute for the 8.5” x 11” paper DNR form. Most importantly, the new statutes expanded the relief of liability to the bracelet, so that either the paper DNR order or the state’s official metal id bracelet could be relied upon to determine the existence of a valid DNR.

Why was a statute needed?

Since relieving legal liability was the root problem, a statute was required to achieve that end. So, each state’s legislature had to become involved. There’s still a significant number of states that haven’t enacted bracelet statutes, but each year, more and more states are recognizing that it’s not only in their residents’ best interest to have such legislation, it can also help to avoid costly legal problems as well. Case in point: a few years ago, an older woman who had a DNR order experienced a heart attack while out in public. Because of her condition, she was unable to communicate to EMS that she had a DNR order. A family member who was with her at the time told EMS that she had a DNR, but they couldn’t produce the paper DNR order, and since the state didn’t permit a bracelet to substitute for a paper DNR order, EMS personnel were forced to resuscitate her. The woman spent several painful days in the hospital following the resuscitation and then passed away. Her family sued the state to recover for the pain and suffering of their loved one. Subsequently, the state legislature passed a measure that allowed a state-authorized bracelet to substitute for a paper DNR.

States with some of the best DNR statutes include Wisconsin, Wyoming, California, Texas, Utah, South Carolina, Virginia, Kansas, Georgia, Indiana, Maine, Iowa, Michigan, Missouri, New Hampshire, Oregon, Ohio, and Vermont. If you live in one of those states, consider yourself very fortunate. There is a statute that provides for a state-approved bracelet to be worn to confirm that you have a DNR. In most other states, you’ll need to hope that EMS finds the signed DNR order from your doctor in your purse or wallet before administering CPR (note: Some states don’t allow emergency personnel to search your purse or wallet when you’re unconscious. Others do allow a search, but only if there are two EMT’s present. If you want to know the rules followed in your state, you’ll need to contact the emergency medical services office at your state’s department of health). If you live in a state that doesn’t have a ‘bracelet’ statute, StickyJ Medical ID, a provider of DNR and POLST bracelets, offers bracelets that direct EMS personnel where to look (purse or wallet) to find the DNR or POLST. In this case, the bracelet doesn’t act as a substitute for the physician order, but it does make EMS aware that a DNR or POLST exists, and it provides tacit consent to search their wallet or purse.

What’s the difference between a DNR order and a POLST order?

The acronym POLST was originally intended to identify documents that contained Physician Orders for Life Saving Treatment. In nearly all states, a POLST must be signed by both the physician and the patient (or the patient’s representative). In addition to stipulating the patient’s wishes regarding DNR, POLST forms provide a place for the patient’s primary care physician to communicate medical orders for initial treatment and assisted nutrition to another physician in the event the patient becomes incapacitated. Today, the name associated with POLST orders varies by state (MOLST, POST, MOST, are COLST are just a few), and the umbrella term POLST largely refers to the paradigm described by the national POLST organization aimed at providing patient and physician approved portable medical orders that go far beyond CPR.

Why do we need POLST?

POLST got its start in the early 1990’s when a group of medical professionals in Oregon began considering the benefits and shortcomings of DNR orders. Their conclusion? While DNR gave individuals control over resuscitation following a cardiac event, it didn’t provide for life threatening clinical events that might arise due to other underlying medical conditions such as cancer, liver disease, or advanced frailty. The medical ethicists reasoned that in addition to CPR, a portable medical order should provide a way for a physician to communicate an initial treatment plan to emergency medical personnel, along with instructions for ongoing treatment in accordance with a patient’s wishes even if the patient was no longer able to communicate their wishes. Their goal was to help patients and families facing serious progressive illness and/or frailty due to aging by allowing them to provide advance input on how they should be treated. So, POLST was introduced as a tool that could include DNR as well as medical orders for ongoing treatment.

If POLST is superior to a standalone DNR, why hasn’t it proliferated as widely as DNR?

For one thing, POLST isn't appropriate for everyone.  So, rather than try to introduce POLST through the traditional state Department of Health channel, POLST programs were initiated in each state at the grass roots level in the hope that those programs could more easily explain to physicians when to use POLST and when DNR would be best. Today, nearly every state has a POLST program that’s staffed by individuals who work with physician groups to promote the use of POLST, and it’s caught on in some states because physicians see POLST as superior to having just a DNR for patients at risk for a life-threatening clinical event because they have a serious life-limiting medical condition. But, the roll out has been slow, hampered in part by disagreements over the design of the POLST form and questions surrounding acceptance by emergency medical personnel who may be unsure of whether they’ll be relieved of liability if CPR is to be withheld. If a state passes a statute that covers liability for POLST as well as DNR, paramedics can more readily treat the ‘NO CPR’ designation in a POLST form the same as in a DNR order. But, it has taken more than 30 years for all of the interested parties to simply agree on a standard POLST form that can be adopted (with minor variations) nationally, and how POLST should be rolled out. Most state programs that are trying to implement POLST haven’t yet been successful at managing passage of such a statute.

California, Vermont, Wyoming, and Oregon are examples of states where such legislation exists, and a state-approved POLST bracelet can be accepted in lieu of the physical POLST document, but most other POLST states haven’t been able to get legislation in place to address liability, and that will continue to be a problem for POLST acceptance by the public as well as emergency personnel.

Why is POLST legislation such a challenge?

In most states, it comes down to numbers. Legislators are only allowed to put forth a limited number of bills in each session. In Florida, for example, house rule 5.3 limits house members to 7 bills in any year’s legislative session (which only lasts 60 days). A bill to limit liability for paramedics and EMT’s attempting to follow a patient’s POLST order rather than a DNR order might be viewed as superfluous by legislators who would question why their state needs two statutes to cover the same issue – CPR liability. Absent a time-consuming effort to educate legislators on how POLST can better serve residents, such a bill could face stiff resistance. And, because POLST is managed by independent state POLST programs rather than the state’s department of health, it becomes even more challenging. If nearly half of state legislatures have failed to pass a statute allowing a bracelet to substitute for a paper DNR order, how much more difficult will it be for them to get legislation passed for POLST. Yet, patients want the freedom to be ‘out in the community’ while having the assurance that the treatment plan they worked out with their primary care physician will be followed.

A state-approved bracelet allows patients to feel secure in knowing that EMT’s and Paramedics will (a) know that they have a POLST, (b) immediately identify if NO CPR is specified in their POLST, and (c) have a toll-free number to call 24/7 to get additional information if the patient is no longer able to communicate. In many states, completely new legislation isn’t actually needed – just a revision to the current DNR statute. But, in order for this type of legislation to move successfully through the legislative process, it needs the backing of the state’s department of health. If more POLST programs partnered up with their state’s DOH, the much-needed legislation could probably be passed more quickly and easily.

What do you do if you live in one of the 40-plus states that don’t have a state-approved POLST bracelet alternative? Are there workarounds?

There are always workarounds. For example, a person living in Virginia, which recognizes both POLST and DNR, could ask their primary care physician to create both a POLST and a DNR Order for them. In Virginia, state-approved DNR bracelets are covered in the Do Not Resuscitate legislation, but as of this writing there is no POLST state-approved bracelet. So, a VA resident with both a POLST and a DNR could purchase a Do Not Resuscitate bracelet that will accommodate the CPR portion of their POLST, and they could establish the existence of their POLST by requesting that information be added on the back of their DNR bracelet. It doesn’t, however, elevate the patient’s safety and peace of mind to the same level as states that have approved POLST bracelets because it doesn’t provide a way to access the additional POLST information.

States that have implemented POLST bracelet legislation have all added a requirement that the vendor of the POLST bracelet keep a copy of the full POLST order on file, assign a serial number to each bracelet, and provide a 24/7 toll-free number that can be used by emergency medical personnel to get initial treatment and assisted nutrition information any time day or night. To address the immediacy of the resuscitation issue, if the NO CPR box is checked on the POLST form, then DNR is added to the front engraving on the POLST bracelet (see example to the right). That tells the emergency medical personnel that the individual has a POLST, and that CPR should be withheld.

When that’s present, there’s no need to contact the toll-free number to determine if resuscitation is in order. But, once the patient appears to be stable, a call to the 24/7 service will provide what the EMS personnel need to know about initial treatment and nutrition. This appears to be good for the patient, while also addressing the liability issue for EMS. In addition, states with POLST legislation have limited the number of state approved vendors to just 1 or two making it much simpler to identify a state-approved bracelet.

Why not employ technology to help manage POLST?

Over the past several years, POLST databases have been introduced in California, Oregon, and elsewhere to address the need to make patient-specific CPR, treatment, and nutrition information available online. The potential advantage of having a statewide POLST database is that if it’s kept up to date to reflect any changes agreed upon between the patient and their physician, it can help to ensure that the most up to date medical orders will be followed. The downside of relying exclusively on a database system is there’s no guarantee of immediate access. While we all want to believe that internet access will be available whenever and wherever we need it, medical emergencies don’t always happen in the most convenient places. If a paramedic needs to know if they should administer CPR, they can’t wait for their Wi-Fi connection to become stable, or even available. A POLST bracelet that provides guidance on CPR and a toll-free phone number to get the remaining treatment information may be considered low-tech, but it can help to ensure that the patient is treated in a timely fashion.

What’s the next step for state POLST organizations?

Based on feedback from states that have managed to get needed POLST legislation in place but haven’t yet been able to get a state-approved POLST bracelet substitute approved by their legislature, it’s been suggested that progress can be made more quickly by soliciting support from the state’s attorney general along with the state’s director of EMS. Together, they have the ability to identify potential legislative supporters and influence those legislators to introduce the necessary legislation that will help make POLST achieve its goal of protecting vulnerable patients during end of life.

Barry Torman has been a partner at StickyJ Medical ID in Seminole, Florida, for the past 25 years, and was a contributing member of the National POLST paradigm technology conference. In addition to staying current on DNR and POLST legislation in all 50 states, Torman and his staff regularly solicit feedback from individuals in different states seeking to purchase DNR or POLST bracelets. StickyJ Medical ID is a provider of DNR and POLST bracelets in 33 states, acting as a fiduciary on behalf of each state to ensure that only persons with a valid DNR or POLST are issued a state-approved bracelet.