May 11, 2021

Volume XI, Number 131


May 10, 2021

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California’s End of Life Option Act: Key Requirements and Considerations

On June 9, 2016, California’s End of Life Option Act (the “Act”) will go into effect.  The Act authorizes an adult who is suffering from a terminal disease and meets other qualifications to request an aid-in-dying drug that may be prescribed for the purpose of ending his or her life.  California is the fifth state to enact a form of an a id-in-dying law.  Similar laws are in place in Oregon, Washington, Montana, and Vermont.

Key Requirements and Considerations:

  • Self-Administration of the Aid-in-Dying Drug: Although other individuals may assist in the preparation of the aid-in-dying drug, the patient must self-administer the aid-in-dying drug.

  • Responsibilities of the Attending Physician: The patient’s attending physician is required to ensure that the conditions of the Act are satisfied prior to writing a prescription for an aid-in-dying drug. Participation in the Act is voluntary; the attending physician is not obligated to comply with a patient’s request for an aid-in-dying drug.  In the event the attending physician chooses to assist a patient in obtaining an aid-in-dying drug, the attending physician must determine whether the patient making the request is a qualified individual who meets the requirements set forth in the Act, and has the capacity to make medical decisions.  If there are indications that the patient has a mental disorder, the attending physician must refer the patient for a mental health specialist assessment.  In addition, the attending physician must refer the patient to a consulting physician for medical confirmation of the diagnosis and prognosis of the patient, and for a determination that the patient has the capacity to make medical decisions.

  • Documentation Requirements: Under the Act, the patient is required to submit two oral requests for the aid-in-dying drug, a minimum of 15 days apart, and a written request to his or her attending physician.  The attending physician must review the documents submitted by the patient relating to the request, and must complete additional documents demonstrating compliance with the Act.  The California Department of Public Health and California Medical Board are expected to make the requisite forms available on their respective websites.  The Act specifies the information that must be included in the patient’s medical record.

  • Opting Out: Certain health care providers, including licensed hospitals and skilled nursing facilities, may prohibit their employees, independent contractors, or other persons or entities, from participating in activities under the Act while on premises owned or under the management or direct control of the health care provider, or while acting within the course and scope of any employment by, or contract with, the health care provider.  If a health care provider chooses to prohibit participation under the Act, it must provide written notice of this policy to its employees, independent contractors, and other persons or entities.

Even if a health care provider elects to prohibit participation under the Act, it may not prohibit its employees, independent contractors, or other persons or entities from: diagnosing whether a patient has a terminal illness; informing the patient of the medical prognosis, or determining whether a patient has the capacity to make decisions; providing information to a patient about the Act; or providing a patient, upon the patient’s request, with a referral to another health care provider for purposes of participating in the activities authorized by the Act.  Furthermore, a health care provider may not prohibit its employees, independent contractors, or other persons or entities from participating in the Act while on the premises that are not owned or under the management or control of the provider, or while acting outside the course and scope of the participant’s duties as an employee or independent contractor of the health care provider.

  • Immunity from Liability: The Act provides that health care providers that participate in actions taken in compliance with the Act will not be subject to civil, criminal, administrative, disciplinary, employment, credentialing, professional discipline, contractual liability, or medical staff action, sanction, penalty, or other liability in connection with the health care provider’s participation in actions authorized by the Act.  In addition, an individual will not be subject to civil or criminal penalty solely because he or she is present when the patient self-administers the aid-in-dying drug.

Recommended Next Steps:

Physicians and health care facilities should familiarize themselves with the requirements of the Act prior to the June 9 effective date, so that they are able to respond to patient inquiries and requests about their options under the Act.  Licensed health care facilities that permit their employees, independent contractors and other health care providers to engage in activities permitted by the Act should enact policies and procedures to ensure that requests for an aid-in-dying drug are processed in compliance with the Act.  In the event that a licensed health care facility chooses to opt out of the Act, the facility must provide notice to its employees, independent contractors, and other health care providers of its decision to opt out.

© 2021 Foley & Lardner LLPNational Law Review, Volume VI, Number 153



About this Author

Claire Marblestone, health care lawyer, Foley and Lardner, Law firm

Claire Marblestone is a Partner and health care lawyer with Foley & Lardner LLP. Her practice focuses on transactional and health care regulatory matters, with an emphasis on HIPAA compliance, the Anti-Kickback Statute, Stark law, provider enrollment, and licensure and certification. She advises a number of clients, including hospitals, health systems and physician groups on regulatory and compliance issues presented by telemedicine and telehealth.