Governor Markell Signs Delaware Medical Orders for Scope of Treatment Act

 Written By Joanne Ceballos 
On May 28^th Governor Markell signed House Bill No. 64, the Delaware Medical Orders for Scope of Treatment or “DMOST” Act.  The legislation establishes a clinical process to facilitate communication between an adult patient with a “serious illness or frailty” and the patient’s physician (or other health care practitioner licensed to write medical orders under Title 24 of the Delaware Code) who “would not be surprised if [the patient] died within the next year” regarding what life-sustaining treatments, if any, the patient wishes to receive.  Based on that consultation, the legislation allows the physician to complete a DMOST form documenting the patient’s wishes as a medical order intended to be honored by personnel attending the patient in any health care setting, including the patient’s home, a health care institution, or by emergency personnel.

The legislation makes clear that a DMOST form differs from an advance health care directive.  While an advance health care directive may be made by any adult and is intended to express the individual’s preferences with respect to life-sustaining treatment in the event the individual is incapacitated, a medical order is required to give effect to those preferences, and a new order must be issued if the individual is transferred from one health care setting to another.  The DMOST form, on the other hand, is a medical order that is intended to be effective in any health care setting, whether or not the individual is incapacitated, although a patient with decision-making capacity may at any time void the DMOST form or otherwise request treatment different from that specified on the form. The legislation also provides that a DMOST form may be completed after consultation between an individual’s physician and the individual’s authorized representative if the individual lacks capacity. 

Health-care practitioners and providers, institutions, and emergency-care providers (as all defined by the Act) have an obligation to treat a patient who has a completed DMOST form in accordance with the directions and options indicated on such form, except as otherwise provided in the Act.  In addition, the legislation provides guidance regarding how conflicts between health-care practitioners and a patient’s authorized representative may be resolved and how conflicts between an advance health care directive, a DMOST form, a patient’s expressed oral or written directives, or the decisions of a patient’s authorized representative should be resolved in determining the scope of treatment.  The failure to act in accordance with the Act’s requirements can result in professional discipline and civil monetary penalties.

The bill authorizes the Department of Health and Social Services to promulgate regulations regarding the process for completion, modification and revocation of the DMOST form as well as directing the Department to prepare a standard DMOST form.  It also requires Delaware health care providers to honor a medical order form executed in another state if it is valid under the laws of that state or meets the requirements for a valid DMOST form.  A majority of states have enacted legislation similar to the DMOST Act, although they may refer to it as POLST (“Physician’s Orders for Life Sustaining Treatment”), MOLST (“Medical Orders for Life Sustaining Treatment”), or a like term.  In fact, regulations of the Delaware Department of Public Health previously permitted Delaware health care providers to use a MOLST form, but in 2013 the Department directed Delaware health care providers to stop using the form due to concerns that it was being used beyond the parameters specified in the regulation.  The DMOST Act, and regulations promulgated thereto, should provide more clarity about the proper use and function of the DMOST form. 

The DMOST Act takes effect upon the adoption of regulations by DHSS which the bill specifies will occur no later than a year from the legislation’s enactment.  Click here to review the full text of the DMOST Act.