 Good morning. This is the Senate Health and Welfare Committee meeting of January 18. Good morning, everyone. We have some work before us today. Before we begin, I'd just like to comment on the mask requirement bill that we have been looking at. And leadership continues to discuss the path forward for that bill. It was scheduled for this morning, but we're going to postpone our work and hopefully it'll be only until tomorrow morning. We'll keep you posted. And I'm asking ledge council to just go through the draft for spelling or similar changes. So that when we do come back to it, we're ready to go. So that's it on the mask requirement bill, and we're going to move on into our agenda. Let's move on to S 74. And I believe Jen Carby, you are here. Good morning. Good morning. Yeah, it's good to see you and everyone else. You as well. So we, we have had testimony on S 74 and I know that there are folks out who have continued to send emails about the bill. So we're going to just move forward with what we have at this point. I haven't heard for further testimony. To at this time. So Jen, we're going to go through the bill. And I know that you've had conversations with folks who testified on the bill and we'll look and see what that conversation has led to if anything. So are we still at. So I have not actually spoken with anyone. I don't believe I had reached out to the Attorney General's office but did not hear back. And I have reached out to diva to try to get some information about Medicaid coverage but not. As I understand it, the insurance issue is, is fine as taken care of so I so I don't think we need to follow up with that one. The one that I'm most concerned about is charities from the AG's office so let's go through the bill and then we can get to decision points as needed. Senator Cummings. Yeah, the thing I heard the other day that I just like to check on is that there's been some issue with getting the medications, and that some of the medications haven't been working as planned or as people thought they would. And I just thought we might want to. Yeah, I'm going on that. Everything's in line. I've heard that as well. The most of the emails I've gotten about that have been from out of state and from organizations out of state. I think it was grand rounds at UBM so. Oh that one. Yep, I saw that one as well. So what I'm going to suggest is we go through the bill with the technical corrections that have been substantiated with data from the program itself. The medication issue gets into a bigger discussion that I think in some ways falls outside of what we might be able to accomplish. So I understand it's an issue, and perhaps we could suggest to the Department of Health and others that they evaluate those medications. It seems like a medical decision. So let's let's go through the bill and then we'll see where we get to. I don't want me to put the bill up on the screen or do you want to be looking at it? I think so. Yeah, let's put it up on the screen and we're all looking at it the same place the same time. And we can make draw our conclusions as needed. Right. Thank you, Erin has made me co host. All right, so here is the bill. Can you all see that now. Yes. Great. Yes, 74 and act relating to modifications to Vermont's patient choice at end of life loss. And the first changes in our in section one of the bill, it would amend 18 dsa section 52 83, which is the list of items list of actions that must occur in order for physician not to be subject to liability or disciplinary action. So one of those deals with the patient making the oral request to the physician in the physicians physical presence proposal here is to eliminate that. And I think there are a couple of options you had heard about some talk about telemedicine being appropriate. So one option might be to specify that this can be done through telemedicine. Otherwise, it does not require any physical. I'm sorry, any visual contact between the patient and the provider. So I think if you take out the language it would allow telephone call as well as as well as audio video and if you have a preference there that we may want to specify. Madam chair. Go ahead. Jen I think thank you I think that's a good suggestion, particularly given the testimony we received last week from Dr Barnard who described what she does to assess the patient. So if, if you're able to add that and I think that would be helpful. Exactly. What can you just share with us where exactly that goes in the process. The overall process that these requests. This is, well, there are requirements for this process to occur that the patient make two oral requests to the physician, at least 15 days apart for the medication. And then, and there are other things that that occur throughout the process but aren't necessarily happening at the same at that same time. So where it was. So this would add language within number two. Or add language in number, numbers one and two. Okay. Presumably, and then and similarly take out language requiring this physical examination. It's already happened. Well, if so with the language that is proposed here. I believe the entire physician patient. Interaction with respect to this part of the process may happen without a physical examination there is earlier and just in the definition of bona fide physician patient relationship in the chapter. A requirement that the there be a treating or consulting relationship in the course of which a physician has completed a full assessment of the patient's medical history and current medical condition, including a personal physical examination. Yeah, so that's exactly what I was getting at so we're not look, we're looking at that established relationship and then this is at a time when the patient may have difficulty in getting and transporting him or herself to the physician's office, among other things. Okay, right. Yeah. Thank you. Senator coming. Yeah, what we're allowing a teleconferencing not just the telephone call is that correct. Yes, I think that's what that's what you're discussing is so with with the language is proposed. Yeah, I would be uncomfortable with just the phone call. Yeah, give it or Senator Cummings given the testimony we heard last week from Dr Barnard I think specifying that in the physician's physical presence or via video telehealth. I think that's yeah. I will note I just as I'm reading you was reading you this definition of bona fide physician patient relationship that that requires a physical examination that term is actually never used in the chapter I think it's a hold over from earlier drafts of the bill when Act 39 was in process so there may not necessarily have been a person a physical examination of the patient if you eliminate this requirement about the terminal condition being based on a physician's physical examination of the patient. So, in other areas, the decision, you know for other medical procedures the decision is up to the doctor when, when and in what form the telemedicine communication would take place or be appropriate. So I'm thinking maybe that is the better. Maybe that's language that we could use to say, as for other medical procedures. It is up to the doctor to decide when and in what form telemedicine is appropriate. We may want to look at the laws and I'm just pulling up the statutes on our statute in also entitled 1893 61 I believe is where it talks about telemedicine generally. And the duties for healthcare providers. There's oral there's consent required I'm just I don't think it specifies. There was language when you worked on the audio only telephone coverage last year that talked about being clinically appropriate for telemedicine I don't believe that center for for audio only telephone I don't believe that same language exists in your telemedicine law around the healthcare provider side of it may exist in the insurance coverage piece. Okay, so if there's a particular I guess what I'm saying is if there's a particular message that you're wanting to convey about telemedicine then then let's be explicit about it but I wouldn't tie it to other types of to what specified elsewhere in statute because I'm not sure it is specified elsewhere in statute so if you want to say something in here about if you know the provider determining it is clinically appropriate to do this by telemedicine I think that's fine we can certainly put that in there and that might be the right terminology. That that makes sense so what do you think about that committee. Where are you talking about specifically where we were. We're up at one and two I think. And Jen can you tell me which chapter that the medical aid and dying is and entitle 18 I'm trying to find yes it's 113. 113 okay. So I'm looking at section something like website now I went too far. So something like the patient made an oral request to the physician and the physician's physical presence or, or using to or by telemedicine as defined in our other telemedicine statute. If the physician determines telemedicine is clinically appropriate. We do we want to say anything about what form of telemedicine is clinically appropriate. Well we're going to use telemedicine so we're not using telehealth. Yep. Right so telemedicine and I would recommend that we that we tie in the definition from actually title eight that gets carried over into the telemedicine health care provider statute. That's that defines it as the live audio live synchronous audio video. Okay. Okay, so let's do that let's put that in and see how that how that looks to us. Yes, and I want to spend a little time sort of looking at the language and how best to phrase it so. I'm not loving what I'm how I'm saying it now so I'll look at how to phrase it so that I think it captures what you're saying. And we get I did. I am looking now at chapter 113 there is a definition of bona fide physician patient relationship in that there is but that term is then not used again in the chapter. Oh, I see. Okay, so it defines it but it doesn't actually come up so the definition doesn't is sort of irrelevant. So it was just a holdover for there were a lot of different versions and approaches being drafted one act. 39 was was a bill in the legislature. And I think that was just a holdover from an earlier version that did not end up in the final. Okay, so let's try that and then we'll look at the new improved language from ledge counsel Carby. And so what and then we why don't we move up move along. That's a good a good point well made. And I know there was an issue and I think David Englander had had largely addressed this at the time but there was an issue raised about whether there's concern around telemedicine and whether providers are, whether it's an out of state provider. And based on our definition of healthcare provider is somebody who is licensed in the state. And in addition, a provider has to be licensed in the state, except right now during covert word, as you know, there, there is the option for out of state license out of state providers to provide treatment to Vermont patients without being licensed in the state. Otherwise there is a requirement that the provider be licensed in the state where the patient is physically located. So I don't think there's anything additional you need to do there when when we're under normal circumstances unless there's something that you want to specify in this particular covert time. No, I think the place that would be in the covert bill. Right, right. Okay. Okay, so those are the changes in one and two and the other subdivisions wanted to the other change here is is really a technical one from just a grammatical one from no fewer to not fewer. And then in number five, this is removing that requirement that the physician have done a physical examination of the patient to determine that the patient is suffering a terminal condition. That requirement for an examination and a review of the patient's medical relevant medical records but does not require the patient to be physically examined by the this prescribing provider. Well, Jen so there that would take place prior to the other two via telemed or potentially be a via telemed right this would be like the initial exam is that correct. It does not specify the timing in which the provider is making this deter the physician is making this determination. So there are a number of steps that have to occur but other than the 15 at least 15 days between the oral requests. And then we'll look at it in a minute the 48 hours for the for the physician to write the prescription. It doesn't specify the order in which these have to occur so I think arguably you could have the physician or the patient make the first request the physician do to make the determination that the patient is suffering a terminal condition and other things at that, you know, at that time or after that time, but they have to have made this determination before they write the prescription. Okay. And, and they're, you know, and it may be difficult to see some of this out of context and this is this bill is just showing you the. Yeah, that's one of the things that is difficult is that it is out of context so it's helpful. Do you want me to put up the statute. Not right now let's keep going and then we'll get we'll ask. We'll continue to ask questions to clarify. But it might be helpful at some point to go through the process again, the statute. Okay. So that's where the physical other physical examination piece comes in. And then this is, and I know you took a lot of testimony on this number 12 is the requirement that the physician waited at least 48 hours after the last to occur of the patients, and you can't see these this is the last to occur of the physician's written, sorry, the patient's written request for medication, the patient's second oral request, and the physician offering the patient an opportunity to rescind the request. So that's the 48 hour waiting period that you have heard about. The oral request, the patient's second oral request is I think what people have been focusing in on, but eliminate that 48 hours. Yeah, but the 48 hours comes after the 15 days. So they made the request and then there was 15 days. And there are 48 hours after that, after the right and actually at the time of the second oral request under the existing law and this would not change the physician has to offer the patient an opportunity to rescind the request. Okay, that's right. So and it's so this is 48 hours, at least 48 hours after the last to occur of the patient making the written request the patient making the second oral request and the physician offering the patient an opportunity to rescind that request. So the question is, do you want 48 hours to have elapsed after the last of those before the physician writes the prescription, or do you want some lesser amount of time. Jen just to clarify here, I'm looking at the statutes to just because it's hard to track on the bill but it isn't or not an and I think it doesn't I think it doesn't as I've been looking through this I've been thinking oh I wonder why it says or and not yeah I don't think it I don't think it matters. I mean it's still the last to occur of the following events. So it still requires all of them to have I believe to have occurred. I think it's confusing the way it's written. But my recollection of the discussion and the way the process has has works is that it's the last to occur of all of those. I think that the or is there to identify that that only one of them would be the last. Okay. But I agree that it is confusing. Yeah, I read it three times to say, okay, does this make a difference if it's an and or an or should there even be a word there can conjunction. Yes, I think it I think it does not matter. I think the impact the effect is the same, but it would be clear if it's any. Can I make a suggestion for everyone. So we all have our computer screens up if you have your iPad, you're not using that separately. So go to January 12, and under Betsy Walkerman, you click on the graphic graphic act flow flow chart, and it shows the process. So, great. Yeah, but there it is so it's something to look at in addition to looking at the statute that Ruth is looking at. I'm sure that there's not something else that we should clarify. Yeah, make it more clear and that's why I was wondering about the and or the or the and and or the or the and. Yeah. Good catch. So what did you decide, Jen, what did you would Ruth decide on that one. I think it would be clear if it said and I'm not sure if you want to make that, you know if that's something you want to address I'm happy to make a change. I think we did and then we'll see what happens with it. I will. Yes, I'll consult with David England or two and see if he has a sense for. Okay, whether there's a practical effect there I don't believe there is. But I think it is clear with an end. So that is the end of section the changes proposed changes to section one. To this 18 vs a 52 83. Is there anything else you wanted to look at on that section or do you want to move on to section two. Let's just keep going I think. Okay, section two adds to the limitations on action so in the existing law. There are provisions around no provider being under any duty to participate in providing this medication to patient. And that a healthcare facility or healthcare provider cannot subject a healthcare professional to discipline suspension loss of license laws or privileges or other penalty for actions taken in good faith reliance on the provisions of the federal law. And then there are some other proposals to act under the chapter. And then there are, except as otherwise provided in a few other sections, nothing in this chapter shall be construed to limit liability for civil damages, resulting from negligent conduct or intentional misconduct by any person. So that would move down to D and this bill in section two would add that no person shall be subject to civil or criminal liability, or professional disciplinary action for acting in good faith compliance with provisions of the chapter. So, in existing 52 85 be it's really focused on not subjecting a healthcare professional to professional disciplinary action for actions taken in good faith reliance on the provisions of the chapter or refusals to act. So that would add that nobody would be subject to civil or criminal liability or professional disciplinary action, which in some ways overlaps with what's already in there for the healthcare professionals for acting in good faith compliance. Okay. You haven't re contact contacted the AG's office again, regarding this, but they have not heard back from them now haven't heard back from them so a silence is silence. And the concern is if we start listing all the different possibilities here, it gets extremely complex. So, for this, this really is very helpful as far as I'm concerned but I'm open to others. You'd heard from the Attorney General's office and this is the piece I don't have enough information about what their concern is but is it is about this good faith compliance, which they suggested was introducing a new element although I will point out again that 52 85 already has B already has good faith reliance. As far as the professional disciplinary action but not the liability, and then this D does not limit liability for civil damages if somebody is acting negligently or with intentional misconduct and that generally would not, you know, it is incompatible with good faith compliance so if they're acting negligently or with intentional misconduct that is not. And, and the other you know the other the thing that we heard in testimony was that there's one pharmacist who's willing to prescribe because of a concern about liability issues so this right and so one possibility if you were concerned about the breadth of this would be to include or to, I guess, well I guess subscription be includes other person as well but we could name no physician nurse pharmacist, or other person, which I think would keep it would I guess would not narrow the breadth of it, but would specifically name pharmacists if that is part of the concern currently around liability. I think that is a concern so committee I'm just asking what your thoughts are on that phrase medical provider nurse pharmacist. I think that the way the way we, the way it's there is better because if we start listing somebody we might leave somebody out and then if you leave somebody out then they might get worried that they're left out and the existing language and be is physician nurse pharmacist or other person. So it's still so if you use that same language and see a physician nurse pharmacist or other person. I don't think you're leaving anybody out. Okay, there. Okay. So what's wrong with doing that. Yeah, but I mean there's there's no from practical standpoint it's no different from saying no person. You're just specifying some particular people, and the only reason you might want to do that is if it gave more comfort to pharmacists, if that's, you know, one of the Well it does offer clarity. Yeah, does offer clarity. Senator hooker. Thank you. When Dr. Barnard spoke she spoke about the health team, the health care team and I had asked you know who that included. So I don't know if that is something that we might consider, rather than no person, but, well, we'd have to define health team, but I'm not sure that Janice or definition of that anywhere. You know, different health in the industry. She did suggest that it was anyone who was, you know, taking care of. Right. So, and that I think is an important. I'm so that anyone who is in, you know, anyone who's in charge of, yeah, persons health care should be protected if this person is making the decision. Okay, Senator Cummings. Okay, maybe we could do something like health care professionals and pharmacists any person. There's been a concern about potential abuse and any person might be read to include those people that there was concern about might be pressuring people. Any person is pretty broad any professional person might cover it. But I don't think to me the pharmacist isn't part of the health care team. Health care is doctors nurses palliative care people hospice personnel, but the pharmacist is in a shop. 20 miles down the road and isn't part, you know, there's not like he's discussing with them what's the best medication so I think we need to specifically mentioned pharmacists. The language that Jen put forward, and I'm thinking that currently with this language in the, in the act. We haven't seen concerns of abuse, you know, or liability liability issues raised. So by putting that phrase in here, it does offer reassurance for the pharmacists and others and it's consistent with what's in the underlying statute. So the definition in the beginning of the chapter of health care provider, which is, which is a version of one that we often use to. We often use in statute it's a person partnership corporation facility or institution licensed or certified or authorized by law to administer health care or dispense medication in the ordinary course of business or practice of a profession. So we could if you wanted to keep it narrow or we could say a health care provider or no health care provider shall be subject to civil or criminal liability or professional disciplinary action. And I will note this definition of health care provider specifies dispense dispensing medication which is what a pharmacist does although generally in our larger use of the term health care provider typically does include or health care professional does include a pharmacist. In that, in that category so while they may not be physically present or part of what may be contemplated as the health care team, they are delivering the health care service. So we could include health care provider. I think that definition of health care providers actually more broad, because it includes institutions, etc. and I don't necessarily want to do that. I think I understand, and your concerns about the, the other person in be in the current law that's talking about licensure or loss of licensure privilege so that would be only covering licensed people. But I'm just wondering Jen, for example, if a spouse were present. You know, during the whole process which I think is is common with if we didn't include other person, other person in in the list, would the spouse potentially be liable or could because of this previous sections section 5284 is is no duty to aid. Oh, exactly what you're talking about was was raised as a concern during the development of this legislation. And that specifies that that being present, just by being present when somebody self administers or not the medication or not acting to prevent the patient from self administering does not subject them to civil or criminal liability. Okay, so in that case then if we said if we did under see what Senator Cummings I think is suggesting the instead of saying no person saying a physician nurse pharmacist, or other medical professional, I guess, shall be subject to with that. Does that what you're thinking and yeah I think we need just to the issue has been pharmacist and I think we need to read to specifically mention them because they are not generally in my mind I don't see them as healthcare workers. Right but to not leave it open to anybody anybody. Yeah, anybody. Does that make sense Jen, or is that. Yes, I do want to be, you know, I do think I don't want to get into a debate about I do think help pharmacists are typically considered to be a healthcare professional. Not just as opposed to being in some other field. But I certainly think we can specify no physician nurse pharmacist if you want some kind of, or other something I think we're going to need to define what that category is. Yeah, maybe to use healthcare provider. But we don't necessarily I think we can. You know I think we can even tie in or you know or anybody else licensed certified or otherwise authorized by law to deliver healthcare services and we can piggyback on an existing definition of healthcare services, or something like that I mean I think we can. So I think we can accomplish the result. But I think we're going to need to be mindful of how we're doing. Do you. Do you think you have enough direction to do that or do you. So, yeah, yeah, my, I'm, I'm with you on this I still. I'm still thinking that by listing the folks who are already listed in the bill and adding pharmacist accomplishes our goal but I'm. Let's see what you come up with. I'm, I'm open to this and we did get a letter from Steve Hockberg, the pharmacist who dispenses these drugs. And it was a very compelling letter, a very empathetic and his relationship with these patients. So I'm trying to find that letter. And I know I have it. So we'll, I'll, I'll keep looking for it. I don't have it. I don't remember getting that is that isn't and it's not on the website if you haven't, it was not put on the web page. I think it was sent either to one or more of us and it wasn't it was just a letter, you know how we get letters from folks. So if I can find that letter, I will. We'll, we'll get it on the web page and you can see what he has what he says, because I think it will help understand the relationship that Senator Cummings is concerned about. Okay, Jen, where are we at this point effective that no. Yeah, I think we're at the effective date. Unless there are other changes that you're interested in. Let's can we can we do this can we go through the changes that we have made at this point or the language that we're going to look at next. Go through it from the top. And then I'm going to suggest that we take a break and ask you how long it would take to put those changes into language. So we can actually see them. One more time you can share with us what decisions have been made, and then we'll take a break and come back. Okay, so in the first section section 5283 which is the requirements for prescription and documentation. We talked about in this, these two provisions and one and two that require currently require the oral request to be made in the physicians physical presence that instead of striking that we would add, or by telemedicine. And you know as defined in our existing statute as long as the physician determines telemedicine to be clinically appropriate for medication to be self administered, etc. So putting in language to that effect about affirmatively authorizing telemedicine to be used here. So we're doing this language about the physical examination. Five has proposed in 12 I guess I'm not sure if you. Yes, sorry, back to five I think we didn't totally make a decision there was sort of we put a pin in it. I thought we were good. I thought we were good, but go ahead, we because we put it into the. We put it in context with the rest of the program but what were you thinking Ruth. Well, I was trying to figure I was trying to look at statute to see what what the whole process is to see. Seem quite right to me that the whole thing could be done without any physical examination. To make sure that that there is a there is a part that there is a physical examination at and if this is to if taking out physical here means that there's no physical examination and that I think is problematic. No, we went back remember I think Jen went back and I believe that taking physical physical out here would eliminate. I had gotten briefly confused by the definition of bona fide physician patient relationship that includes a physical examination, but then that term is never used in the chapter so that physical examination requirement doesn't come into play. So this is the only place I believe. And again this there were so many changes in the way this, the bill was was approached throughout the process and the way it ultimately turned out was through the physician lens as opposed to the laws and other states which just kind of lay out the process this one is done through liability on the physician if the physician does all of these things. So it does not require a physical examination. As I understand it if you take this language out. Okay, so clarify then, because we went back and looked at the physician patient relationship that must be established before any determination is made it's not there. In the in the beginning of in the very beginning in the definitions there is a definition of bona fide physician patient relationship that is because in earlier iterations of the bill that became at 39, there had been a requirement for a bona fide physician patient relationship of I believe at least six months or something like that, before the physician would be allowed to prescribe medication that was not included in the final version that was enacted. And so this definition of bona fide physician patient relationship that specifies that it includes a personal physical examination, because that term is never used in the chapter it does not pull in that requirement for there to have been a personal physical examination. And so I believe the only place in the law now that requires a physical examination is this reference where the physician determined that the patient was suffering a terminal condition based on the physician's physical examination of the patient. Okay, well, I suppose, leaving it and then is reassuring that there is a physical examination. We have allowed for telemedicine. So, we've allowed for telemedicine sort of later in the process when they're requesting the medication. But if we get rid of this physical then there would be no. There's no physical. Yeah, if we go back to I'm looking again at the summary that Betsy Walkerman sent us. Let's Jen let me know I think so. Madam chair. Well, you go ahead chair. Senator, go ahead. Thank you. Are we talking to different physicians here. You know the person who determines that the person is is terminally ill and then if the patient goes to another physician that physician just has to examine the records and then make that determination I'm confused as to you know how many physicians. Yeah, it may be and it may be helpful for us to look through the whole list of requirements. I think with you getting them piecemeal here it's hard to get a picture for what the whole process looks like. Would it be helpful to look at the language on that. Or I can redo the language on that. Well, I'm, let me make a suggestion that we leave physical examination and because it sounds very problematic in terms of having that relationship, and, and then, and then let's let's keep going through. And then Jen, it would be great to go through the whole thing, the whole process that we have. You know it gives you a fuller picture of what's involved which may help you decide what this is you feel comfortable changing and what pieces you do not. Yeah. This reminds me of going through the toxic chemicals and children's products with all the rules and the two year exemptions timelines. All right so it sounds like we're going to leave. We may be leaving physical in for now. Yeah. In subdivision 12. This is the question of whether you want to take out this 48 hour waiting period after the last to occur and we talked about changing the or to and to be clear about all of the events. But I'm not sure we talked about the order the and that one I was there and but I'm not sure if you had made a decision about taking out the 48 hours committee. Yeah, the 48 hours is okay. Yeah, okay. Yes, okay to take out. Yeah. Yeah. The next one to myself and then in section two, we talked about changing this proposed subsection C to say no physician nurse pharmacist, or other individual who was licensed certified or otherwise authorized by law to deliver healthcare services as defined in such and such in this state shall be subject to civil or criminal liability or professional disciplinary action for acting in good faith compliance with the provisions of this chapter. That works. Okay. Okay, so that's good. Yeah, and then that would take effect on passage. My question for the committee is, do you want to look at the entire process. Now, or would you rather have Jen come back with new language, and then, and then look at the entire process and where this all fits. And what's your preference. I think it may make more sense for you to see what the whole process looks like in case it changes your position on changes that you do or don't want to make. Okay. Yeah, I think that would be helpful I agree. And Jen also thinking about whether or not, since the language on the bona fide relationship is not actually used if we want to either link it in some way or get rid of it, because it's confusing. I don't know which is better but it seems silly to have it in there if it's not serving a purpose. I'm always in favor of getting rid of definitions that aren't being used. Because I agree that it can be confusing. As I mentioned, there are a lot of moving pieces in this throughout the process and I think there are probably a number of tweaks that could be made but happy to look at those with you to the extent we want to do that. Okay, what do you want? Why don't you walk us through very quickly here. Okay. And this is not a quick. No, so I will just just show you sort of hit some of the high points in the chapter as well so there's definitions, we won't necessarily go through those right now. But there is right to receive information and physicians are allowed to provide information about the law and the process. So then these are the requirements. Physician should not be subject to civil or criminal liability or professional disciplinary action. If they prescribe to the patient patient with a terminal condition medication to be self administered for the purpose of hastening the patient's death. And the physician affirms by documenting in the patient's medical record that all of the following occur. The patient made an oral request to the physician in the physician's physical presence and we'll be adding telemedicine here for medication to be self administered for the purpose of hastening the patient's death. Not fewer than 15 days after the first oral request the patient made a second oral request, and the physician's physical presence again will be adding or by telemedicine. At the time of the second oral request the physician offered the patient an opportunity to rescind the request. The patient made a written request for medication to be self administered for the purpose of hastening the patient's death that was signed by the patient in the presence of two or more witnesses who are not interested persons that term is defined in the definition section, who are at least 18 years of age, and who signed and affirm that the patient appeared to understand the nature of the document, and to be free from duress or undue influence at the time the request was signed. The physician determined that the patient was suffering a terminal condition based on the physicians and this is where that physical examination pieces in their physical examination of the patient and review of the patient's relevant medical records. So these are the physician determined that the patient also was capable was making an informed decision had made a voluntary request for medication to hasten their death, and was a Vermont resident. And the physician informed the patient in her. Oh, this one is in person as well so we may have actually noticed that one is why it's going through it. So we may need to add, or by telemedicine there. So that's basically end in writing of all of the following. So the physician informs the patient of the patient's medical diagnosis, the patient's prognosis, including acknowledging that the physician's prediction of the patient's life expectancy was an estimate based on the physician's best medical judgment, and was not a guarantee of the actual time remaining in the patient's life, and the patient could live longer than the time predicted. The treatment options appropriate for the patient and the patient's diagnosis. If the patient was not enrolled in hospice care, all feasible end of life services, including palliative care, comfort care, hospice care and pain control. The pot the range of possible results, including potential risks associated with taking the medication to be prescribed, and the probable result of taking the medication to be prescribed. One is that the physician referred the patient to a second position so here's the second position for medical confirmation of the diagnosis prognosis and a determination that the patient was capable was acting voluntarily and had made an informed decision. Number eight, the physician either verified that the patient did not have impaired judgment, or referred the patient for evaluation by a psychiatrist psychologist or clinical social worker licensed in Vermont for confirmation that the patient was capable and did not have impaired judgment. If applicable, the physician consulted with the patient's primary care physician with the patient's consent. The physician informed the patient that the patient may rescind the request at any time and in any manner, and offered the patient an opportunity to rescind after the patient's second oral request. The physician ensured that all required steps were carried out in accordance with this section and confirmed immediately prior to writing the prescription for medication that the patient was making an informed decision. The physician wrote the prescription no fewer than 48 hours, and that's the piece talking about taking out after the last to occur of the following events. The patient's written request for medication to hasten their own death, the patient's second oral request, or the physicians offering the patient an opportunity to rescind the request. So again, we're talking about changing that or to an end. Jen, sorry to interrupt. Since we're, since we're doing this in an a, I believe you all have a way to make things non gender specific. Yes, I can go through I mean, we can do that in all of these I think it's throughout here that there's a his or her own death, even in the. Yes, anyway. Yes, I can make that gender neutral if you'd like. That's okay with everyone. We might as well since we're good catch. Good catch. Actually, it's not gender neutrality. It's non gender, non gender. Yes, we are making affirmative efforts to remove gendered language throughout the BSA. Number 13, the physician either dispensed the medication directly, provided that at the time the physician dispensed the medication. There's another gendered language. The physician was licensed to dispense medication in Vermont had a current DEA certificate and complied with any applicable administrative rules. So the physician either dispenses it dispensed it directly, or with the patient's written consent, contacted a pharmacist and informed the pharmacist of the prescription. And delivered the written prescription personally or by mail or fax to the pharmacist who dispensed the medication to the patient, the physician or an expressly identified agent of the patient. The physician recorded and filed following in the patient's medical record. Wait, Jen, sorry to interrupt by fax. Does that, would that include through a, you know, a online medical record or however prescriptions are done electronically now. Anyway, it's written. I don't know if there is a need or interest in changing that. Well, I think the idea was to have something. I think the idea was to have a physical paper record delivered, nailed or faxed. I see. Okay, that's fine then. Number 14 is the physician recorded and filed following in the patient's medical record, the date, time and wording of all oral requests of the patient for medication to hasten their death. All written requests. So at the date, time and wording of all the oral requests is a all written requests by the patient for the medication and be the physicians diagnosis prognosis and basis for the determination that the patient was capable was acting voluntarily and made an informed decision. The second physicians diagnosis prognosis and verification that the patient was capable is acting voluntarily and made an informed decision. The physicians attestation that the patient was enrolled in hospice care at the time of the oral and written requests for medication to hasten their death, or that the physician informed the patient of all feasible end of life services. The physicians verification that the patient either did not have impaired judgment, or that the physician referred the patient for an evaluation, and the person conducting the evaluation has determined that the patient did not have impaired judgment. A report of the outcome and determinations made during any evaluation which the patient may have received the date time and wording of the physicians offer to the patient to rescind the request for medication at the time of the second oral request. A note by the physician indicating that all of the requirements under this section were satisfied and describing all of the steps taken to carry out the request, including a notation of the medication prescribed. And finally, after writing the prescription, the physician promptly filed a report with the Department of Health, documenting completion of all of the requirements under this section. And then it specifies that the section shall not be construed to limit civil or criminal liability for gross negligence, breakfastness or intentional misconduct. Then we have that duty to aid that it's okay that somebody who is self administering lethal dose of medication is not a person exposed to great physical harm, and nobody is subject will be subject to liability solely for being present. And then the patient took the medication or for not acting to prevent it. And we have the limitations on actions provision that we talked about, including adding some new language. There is an existing exception that allows a healthcare facility to prohibit a physician for writing a prescription of a medication intended to be lethal for a patient who is a resident on the in the facility and intends to use it on the facilities as long as the facility is notified the physician in writing of its policy. And notwithstanding those limitations on liability. Any physician who violates a policy established by a healthcare facility under the section may be subject to sanctions otherwise allowable. Can I ask a question about that Jen. I don't know if you can answer but was the intent of that. So that if there was, for example, a nursing home that didn't want this law to be used in their nursing home. They could say, we don't do this here basically. Yeah, that is my understanding I can't do intent but that is my understanding is that this language would allow a facility to say, we don't do that here. Got it. Like you can't write that prescription and have it be used here. Got it. Okay, that was actually a, that was actually a wasn't a long conversation but it certainly was a conversation during the development of the bill of the original. Essentially allowing a facility to exempt out of. Yes. Yeah. Right, allowing a facility to opt out. 5287 says nobody can be denied benefits under a life insurance policy for actions taken in accordance with this chapter. And that medical malpractice insurance and and rates cannot be conditioned upon or affected by whether the physician is willing or unwilling to participate in acting under this chapter. There's been concern about palliative sedation. So the chapter shall not limit or otherwise affect providing administering or receiving palliative sedation consistent with accepted medical standards. So palliative sedation is giving somebody palliative. I can't remember if it is defined here, it'd be very helpful is otherwise we're going in my recollection know it's administering palliative medication to make somebody comfortable recognizing that there is a potential that the dosage could be fatal but without that being the primary intent. So the intent is to make the person comfortable intent is not to cause the person's death, but it is always a possibility. And there was concern that people would be reluctant or providers would be reluctant to provide a sufficient amount of palliative medication. If there were concerns that it could be considered a lethal dose of medication. There's a requirement that the Department of Health adopt rules providing for the safe disposal of unused medications, recognizing that these are medications that can have that are intended to have the effect of causing death. And if they were not used, there needed to be a way to dispose of them safely. Then there's language statutory construction language saying nothing in this chapter should be construed to authorize a position or anyone else to end a patient's life by lethal injection. Mercy killing or active euthanasia and then action taken in accordance with this chapter shall not be construed for any purpose to constitute suicide assisted suicide. And it should not be killing or homicide under the law, and it should not be construed to conflict with a provision of the Affordable Care Act that also, as I recall, prohibited those activities. And there was a provision added a couple of years later requiring the Health Department to adopt rules to facilitate collecting information regarding clients with the chapter, including identifying patients who failed prescriptions written pursuant and that information would be confidential and exempt from public inspection and copying under the Public Records Act. And then this subsection B is the requirement that the Health Department generate a biennial statistical report of the information collected under subsection A in a manner that complies with HIPAA. So that is why you get that report that you just gotten this year. That tells how many people use this process, what the underlying conditions were, etc. So that is the language of the existing law. Okay. Questions for Jen. Go ahead, Ruth. Senator Hardy, go ahead. So that, going back to that subsection A under paragraph five, the one that we sort of had up in the air, it's unclear to me, even after going through that the order of steps. You know, one of the things we're trying to do is to, well, with the bill is to make it so that there isn't necessarily a requirement for physical examination when they're prescribing medication. So if, is it your understanding that this determination that a patient is suffering a terminal condition takes place first? First. That's the first step. And then there's the steps of requesting the medication. I think not necessarily. I mean, I think the patient can make the oral request and that can trigger the physician to have to determine that the patient is suffering a terminal condition. I mean, depending on the relationship between the patient and the physician, that may already be information that is known to the physician or it may not, it may be something that they have to determine because that request has been made. Yeah, so that's where it gets complicated because one of the, you know, one of the things we heard in testimony is that by the time a patient requests this medication, they could be already so sick that traveling to see a physician is difficult. And therefore, the need for telemedicine is important. So, if we don't get rid of the physical here, we may be sort of defeating the purpose. But it does seem strange that there would be no physical examination at any point by a physician. So, is there, I mean, presumably they would have had physical examination by their physician who's caring for them for their terminal illness, like if they have cancer, their oncologist, their primary care physician would have. So if I did a physical examination just a second. So, is there a way we could link back to that, you know what I mean, so that that we're not preventing, we're not undoing what we're trying to do at the same time but also ensuring that at some point in the process there has been a physical examination. Yes, I mean, I think you could certainly add something in as part of the, the determination that the patient was suffering a terminal condition that if this physician had not done a physical examination that they have consulted with a physician who has, you know, or something like that effect. Look at look at the I think the summary that Betsy Walkerman has provided is pretty clear. But that's not the logic. Let me finish. Let me finish. Let me finish. And what it reflects is what actually happens within the medical community. So the question is, then on a bona fide physician patient relationship that would that's the question I think that we're asking here is, is there a bona fide physician patient patient relationship has that exam taken place. And is this a person who does who knows the patient. So, given that we understand how physicians work in this situation in particular. Dr Barnard and her testimony. You know, there's no reason why you couldn't put a link in saying that it says before the physician can write the prescription. The following steps must be taken to have to confirm that the physician that the patient meets act 39 requirements. It's in there and perhaps we could use the term bona fide physician patient relationship. And I don't know what else we could say and unless you want to say a physical exam at that point is required. Then you could take the physical exam out later when the person, but we don't know if the person is already at a stage where they can't get in the car and drive to the doctor's office so it's called the paradox. And Senator Cummings has her hand up and Senator Hardy. Okay. Just looking back at my experience. Once you have someone that is terminally ill. There are so many doctors and professionals involved. Dr Barnard's daughter saw. Well, she didn't really have primary care because are the people that have been doing primary care for years said they weren't doing it anymore they were only going to do oncology. So she had seen the nerve her new nurse practitioner I think once before COVID hit. When the original diagnosis came from, then there was the oncologist there was the pulmonologist there was the emergency room doctor. There were the hospitalists when you went in. Then there was the OBGYN surgeon, then when the tissues didn't come back as an OBGYN issue. There were several surgeons, palliative care doctors in the hospital. There were hospice workers from home health, any of whom could say they had a doctor patient relationship. But there's a medical record out there somewhere. I think what we want is that, whichever doctor ends up doing it is a doctor that has a relationship with the patient. I'm concerned. And I think the original concern was you could just do dial a doctor. You know, and you would have one doctor that was known that oh well if you just go in and tell him, you know, he'll write the prescription and so you were trying to remember those discussions something about here and walk down the hall, and the partner in the same office will say yeah your sound mind. I don't have a record I didn't vote for this bill originally. But I don't know that we can define it, because in reality, the way the minute you hit the hospital. Your other doctors are out of it, and you're in the hands of hospitalists to find the old kind of, you know, I could have said for my doctor she's my doctor she was my doctor for 30 years. She would come see you in the hospital that doesn't happen anymore to find a doctor that really knows you in these circumstances. I think would be a rarity. There's just too, too much specialization, and I don't know how you deal with that. You know, I think currently, we have had a good experience in our state with this program. And we did hear from Dr Barnard how the doctor patient relationship is formed. So I'm, I'm very I'm concerned that we don't want to go to we don't want to go backwards or too far into the underlying statute but we do want to be sure that we're clear on what's happening. Go ahead. Thank you, Senator Lyons and thank you Senator Cummings for sharing what I know is a difficult experience. I think, Jen, on that section that we're that we're talking about five a. It might work to just change the to an a. So that it's was suffering a terminal condition based on a physician's physical examination. So that would imply that a previous physical examination that diagnosed the patient had been in person, but the current physician that may be providing the medication wouldn't necessarily have to have done that physical examination. Does that make sense. And it seems like a simple change. Nothing's ever simple, but it sounds really good. Well, I mean, simple in that it's a learning change but it might get to our concerns that there will have been a physical examination but it doesn't necessarily have to be within this really tight process at the end when somebody's really suffering. And I think that given the fact that bona fide physical physician patient relationship is never really used in the statute, it may be best to actually get rid of it so there's not confusion. But I don't want that to become controversial to get rid of that. Yeah, I'm, I'm, I think I agree with you but it's also the last thing you said is it could become another hot issue. We'll think about it center center Cummings. Could we say a physical examination somewhere in this chain and confirmed by the medical record. Right and that's actually in the, I think, in the medical history that determines it, and they, they examine the patient and the medical history to determine the patient's status. That's in there. Okay, so the language of five a currently is is the physician determined that the patient was suffering a terminal condition based on and we might be changing that to based on a physician's physical examination of the patient. Maybe we say and the physicians review of the patient's medical relevant medical records maybe we even flip those so it's clear that it's this physicians who's doing the review of the patients relevant medical records and a physician who did the physical examination. Oh, that is so good. Yeah, good work Senator Hardy. Trying to get to yes here. Okay. Is that the last thing or not, where are we. I think I thought so okay. All right it is, it is, it is 1120. Before Senator Hardy has comment. How long would it take you to put together a new iteration. Like I can probably make it pretty quick. Maybe 1520 minutes. Okay, well let's do that let's let's let's ask for you please to do that. It would be great and then we'll come back and look at it, and then we will. We will vote, but we'll, we'll take a chance we'll take some time overnight to consider it and then perhaps tomorrow, we'll be able to vote on the bill will we'll have some time after we meet with the house. I think, although our schedules and that's great I will bring you an unedited version and I'll get it edited while you're considering. That's great I was just going to say one added benefit of Jen, updating the gender language is that it would, it will have more language in the bill so it will probably be less confusing because they'll be more. It will be less out of context. Yes, are you wanting me to make the changes throughout the chapter or just in the sections were already working with. Let's do the sections were working with if you do it throughout the bill then it opens up the entire bill for scrutiny and amendments and everything else. And I know, frankly, I know that whichever Senator presents us on the floor is going to do a great job. All right, let's let Aaron, let's go off YouTube we're on break for what until 1140 Jen.