BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.10.101, 37.10.104, 37.10.105, and 37.10.108 pertaining to living wills

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

            1. On August 26, 2022, at 2:00 p.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed amendment of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways: 

            (a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/85636050552?pwd=YUk1T2Y1bENQUmNHVGpPdk5KcnlaQT09, Meeting ID: 856 3605 0552, and Password: 392150; or

            (b) Dial by telephone +1 646 558 8656, Meeting ID: 856 3605 0552, and Password: 392150. Find your local number: https://mt-gov.zoom.us/u/kejaLr2W21.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on August 12, 2022, to advise us of the nature of the accommodation that you need. Please contact Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

37.10.101 DEFINITIONS (1) "Comfort One" means a statewide method withholding resuscitative measures for terminally ill patients for whom a physician has issued a do-not-resuscitate order (DNR) order. The Comfort One program is to be succeeded by "POLST".

(2) "Comfort One card or form" means a uniform statewide identification card or form, issued before January 1, 2010, indicating that a DNR has been issued to the patient.

(3) "Comfort One logo" means a standard, statewide graphic display, including the words "comfort one", approved by the department.

(4) "Comfort One necklace or bracelet" means a necklace or bracelet of uniform statewide design, approved by the department. The Comfort One necklace or bracelet must prominently display the Comfort One logo and may only be issued to patients on verification that they have a Comfort One form, or have been identified as DNR patients on the POLST form.

(5)(1) "POLST" means Provider Orders for Life-Sustaining Treatment, a comprehensive statewide method of identifying a patient's wishes for providing palliative care, medical interventions, or withholding resuscitative measures to terminally ill patients who have declared living wills a declaration governing the withholding or withdrawal of life-sustaining treatment or for whom a do-not-resuscitate (DNR) order has been issued pursuant to 50-10-101, et seq., MCA.

            (6)(2) "POLST form" means a uniform, single form for statewide use, approved by the department and Board of Medical Examiners, indicating either that a valid and current declaration pursuant to 50-9-103, MCA, has been executed and that the declarant is a qualified patient as defined in 50-9-102, MCA, or that a provider has issued a DNR order for the patient pursuant to 50-10-101, et seq., MCA.

            (7) remains the same, but is renumbered (3).

 

AUTH: 50-9-110, MCA

IMP: 50-9-102, 50-9-106, MCA

 

37.10.104 LIVING WILL PROTOCOL FOR EMS PERSONNEL (1) remains the same.

(2) For a patient who has completed a POLST or Comfort One form, emergency medical services personnel must follow the POLST protocol for providing palliative care or withholding life-sustaining procedures from a patient if a patient meets the following criteria:

(a) The identity of the patient has been clearly established and the personnel have been presented with any one of the following:

(i) a POLST form for the patient; or

(ii) a Comfort One card or form for the patient; or

(iii) remains the same, but is renumbered (ii).

(b) An unresponsive person is wearing a Comfort One POLST necklace or bracelet (no further identification is necessary).

 

AUTH: 50-9-110, MCA

IMP: 50-9-102, 50-9-103, MCA

 

37.10.105 SOURCES OF POLST AND COMFORT ONE IDENTIFICATION

(1) POLST forms, Comfort One forms, cards, necklaces, and bracelets may be obtained only through:

(a) through (g) remain the same.

 

AUTH: 50-9-110, MCA

IMP: 50-9-102, MCA

 

37.10.108 DO-NOT-RESUSCITATE PROTOCOL (1) POLST is intended to replace Comfort One as the system used by medical professionals to identify and administer appropriate care, including DNR orders, to terminally ill patients.

(2) When issuing a DNR order for a patient with a terminal condition, medical professionals are encouraged to use the POLST form and follow the DNR/POLST protocol approved by the Board of Medical Examiners and the department. The department adopts and incorporates by reference the DNR/POLST Montana Provider Orders for Life‐Sustaining Treatment (POLST) protocol July, 2008 (last revised September 2019), which can be found at www.mt.gov/dli/bsd/license/bsd_boards/med_board/licenses/med/polst.asp or upon request from the Montana Board of Medical Examiners, P.O. Box 200513, 301 S. Park, 4th Floor, Helena, MT 59620. which is accessible at the Board of Medical Examiner's website. A copy of the POLST protocol may also be obtained by contacting the department's EMS and Trauma System Section, 1400 Broadway, Room C303A, P.O. Box 202951, Helena, MT 59620-2951, 406-444-3895.

(3) All previously issued Comfort One identifying material, including forms, will be considered valid by health care providers.

 

AUTH: 50-10-105, MCA

IMP: 50-10-101, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The department is proposing to amend ARM 37.10.101, 37.10.104, 37.10.105, and 37.10.108 pertaining to living wills by removing references to the COMFORT ONE system. The availability and use of COMFORT ONE no longer exists and has been replaced by the Provider Orders for Life-Sustaining Treatment (POLST) protocol. Maintaining references to COMFORT ONE is unnecessary since it has been replaced by POLST. The proposed rule amendments remove outdated language referencing the former COMFORT ONE system and clarify that the POLST protocol has fully replaced COMFORT ONE.

 

The department is also proposing to amend the rules to adopt and incorporate by reference the most current version of the POLST protocol. The proposed rule amendment is necessary to ensure the rules reference the current POLST protocol that has been approved by the Board of Medical Examiners.

 

Additionally, the department is proposing to amend ARM 37.10.101 to clarify the statutory requirements applicable to issuance of DNRs.

 

Fiscal Impact

 

There is no fiscal impact anticipated due to this rulemaking.

 

5. The proposed rule amendments are intended to be effective upon the day after the date of publication of the adoption notice.

 

6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., September 2, 2022.

 

7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

 

/s/ ROBERT LISHMAN                               /s/ CHARLES T. BRERETON                   

Robert Lishman                                           Charles T. Brereton, Director

Rule Reviewer                                             Department of Public Health and Human Services

 

 

Certified to the Secretary of State July 26, 2022.