California's New End of Life Option Act Impacts Insurers

Manatt, Phelps & Phillips, LLP

California's "End of Life Option Act" (the Act) went into effect June 9, 2016—making California the fifth state (behind Oregon, Washington, Vermont and Montana) to allow terminally ill adults with fewer than six months to live to receive drugs that will allow them to end their life.1 Under the Act, a physician can prescribe the drug, but it must be self-administered by the patient.2 Physicians who prescribe the drug consistent with the Act are legally protected from charges of assisted suicide, homicide and elder abuse.3 Although the law is supported by the vast majority (76%) of California residents,4 it has raised issues of concern from physicians who may be asked to prescribe these drugs.

Specifically, some physicians have asserted that the Act raises ethical challenges because they believe that actively assisting a patient's death violates their professional oath.5 Dr. Neil Wenger, an internal medicine doctor and director of the UCLA Health Ethics Center, noted that the Hippocratic Oath specifically forbids providing poison to kill someone.6 Dr. James Hinsdale, chief of staff at Good Samaritan Hospital in San Jose, states: "There is no circumstance upon which I would sign a lethal prescription."7

Other physicians point out that, based on the experience in other states that allow physician-assisted suicide, the number of patients requesting aid-in-dying drugs is low, and the number of patients who actually take the drugs after receiving them is even lower. As noted by Dr. Kurt Wharton, an obstetrician-gynecologist, "[i]f you look at Oregon, it's not an option that is highly utilized—it's very infrequent … a number of people who sign up for the medication never take it."8 This sentiment is shared by Dr. Jay Lee, head of the California Academy of Family Physicians, who noted that "[f]or most of us this may be a once or twice in a lifetime, or in a career, situation."9 Oregon records show that between 1998 to 2015, 1,545 prescriptions were issued, but only 991 were used. In the state of Washington in 2014, prescriptions were given to 176 patients, but the drugs were taken by only 126 of those patients.10 Based on these numbers, California analysts estimate that 1,476 Californians will obtain prescriptions in the first year.11

In June 2015, the California Medical Association (CMA), which had previously opposed the enactment of any law that would require a physician to aid in the death of a patient, changed its position to neutral. CMA President Dr. Luther F. Cobb wrote, "[t]he decision to participate in the End of Life Option Act is a very personal one between a doctor and their patient, which is why CMA has removed policy that outright objects to physicians aiding terminally ill patients in end-of-life options…. [w]e believe it is up to the individual physician and their patient to decide voluntarily whether the End of Life Option Act is something in which they want to engage."12

On a similar note, Governor Jerry Brown, a former Jesuit seminary student, explained his decision to approve the bill in a letter to members of the California State Assembly: "In the end, I was left to reflect on what I would want in the face of my own death. I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I wouldn't deny that right to others."13

Opt-Out Provisions for Healthcare Providers

Taking into account the opposition received from religious-affiliated healthcare systems and other medical providers, compliance with the law is strictly voluntary and healthcare providers, including hospitals and physician groups, may choose not to participate without risk of liability or other penalties. Upon notice, healthcare providers may also prohibit employees, independent contractors or other persons or entities, including other healthcare providers, from participating in the Act while on premises owned, managed or controlled by the prohibiting healthcare provider.14 Providers may also prohibit employees and independent contractors from participating in the Act, regardless of location, while acting within the course and scope of their employment with the prohibiting healthcare provider.15 If the provider fails to provide notice, however, the provider cannot enforce the prohibition.16

If an individual or entity violates a properly noticed prohibition, those persons may be penalized in accordance with the rules, policies and practices of the provider, including loss of privileges, loss of membership, suspension, loss of employment or termination of lease or contract.17 However, the Act precludes a provider from prohibiting any other provider, employee or independent contractor from participating in the Act while on premises that are not owned, managed or controlled by the prohibiting provider—or while acting outside the scope of their employment or contract with the prohibiting provider.18

California's 48 Catholic or Catholic-affiliated hospitals and hospices have already announced that neither those facilities nor the physicians who practice there will participate in the Act. Lori Dangberg, vice president of the Alliance of Catholic Health Care explained: "[t]hough we do not participate in activities intended to hasten the end of life, we respect the personal nature of end of life decisions and make no obligation for patients to begin or continue life-sustaining treatment if it is not their wish to do so."19 Similarly, in declining to participate in the Act, Dignity Health issued the following statement: "In alignment with 'Our Statement of Common Values' written 20 years ago, physician aid-in-dying is not part of our mission. There is no obligation to begin or continue treatment, even life-sustaining treatment, if from the patient's perspective it is an excessive burden or offers no reasonable hope of benefit. Death is a sacred part of life's journey; we will intentionally neither hasten nor delay it. For this reason, physician-assisted suicide is not part of Dignity Health's mission."20

In addition to Catholic-affiliated medical systems, neither Medicare nor Veterans Affairs will participate in the Act because the federal government is prohibited from funding aid in dying. However, California Department of Health Care Services spokeswoman Katharine Weir reports that Medi-Cal—California's version of the federal Medicaid program for low-income residents—will cover the cost of the drugs without relying on any federal money.21 The state has allocated $2.3 million for an estimated 443 Medi-Cal patients who are expected to request the drugs within the fiscal year.22

Institutions that will permit physicians to participate in the Act include University of California San Francisco (UCSF) Medical Center, Sutter Health and Kaiser Permanente.23 Most recently, the board of directors of Pasadena's Huntington Hospital—which has more than 800 affiliated physicians—voted to participate in the Act.24 The board did so over the recommendation of the facility's medical leadership, who had approved an amendment to the hospital's rules in late April saying that "Huntington Hospital has chosen not to participate in the Act." In a press release, the hospital explained the change in position: "After careful evaluation of the law, its consequences, what is right for our community and — most important — what is consistent with our vision to serve our community with kindness and dignity, our board of directors determined that Huntington Hospital will continue to participate in the End of Life Option Act."25 Although the hospital has decided to participate in the Act, individual doctors will remain able to opt out.

Impact on Health and Life Insurers

Although healthcare providers may opt out of the Act, life and health insurers may not discriminate against qualifying individuals who elect to take an aid-in-dying drug. Health and Safety Code Section 443.13(a)(1) provides:

"The sale, procurement, or issuance of a life, health, or annuity policy, health care service plan contract, or health benefit plan, or the rate charged for a policy or plan contract may not be conditioned upon or affected by a person making or rescinding a request for an aid-in-dying drug."26

The Act also provides that death resulting from the self-administration of an aid-in-dying drug is not a suicide, therefore a claim for life insurance benefits cannot be denied based upon the suicide exclusion in a life insurance policy.27 Health and Safety Code Section 443.13(b) provides:

"Notwithstanding any other law, a qualified individual's act of self-administering an aid-in-dying drug shall not have an effect upon a life, health, or annuity policy other than that of a natural death from the underlying disease."

Accordingly, death from the administration of an aid-in-dying drug in compliance with the Act will be classified as a "natural death" on the individual's death certificate, and it must be treated as such with respect to the administration of insurance.28

An insurer is prohibited from providing any information to an individual about the availability of an aid-in-dying drug unless the individual or his or her attending physician requests such information. A communication from an insurer must not include both the denial of treatment and information as to the availability of aid-in-dying drug coverage.

The Act does not specifically require that the prescription aid-in-dying drugs, which can cost between $3,000 and $5,000, be covered by an individual's health insurance. However, Anthem Blue Cross, Blue Shield of California, Kaiser Permanente and Health Net have all confirmed that their plans will pay for the drugs.29

1. Only "qualified individuals"—meaning those who have the capacity to make medical decisions, who are residents of California and who are able to satisfy all of the statute's requirements—may make the request. The person must have a terminal disease, defined as "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months." In addition, the person must have the "capacity to make medical decisions," must make the request on their own behalf and have the "physical and mental ability to self-administer" the drug. Health & Saf. Code § 443.1(q).

2. Health & Saf. Code § 443.18.

3. Id.

4. According to a poll conducted in August 2015 by the Institute of Governmental Studies at UC Berkeley, 76% of respondents supported the proposed legislation. Similarly, a statewide Field Poll of registered voters in which respondents were read a summary of the law showed that 65% of voters favored the law, 27% opposed and 8% had no opinion. These findings are echoed nationwide: a May 2015 Gallup Poll found that 68% of Americans support physician-assisted "suicide" of terminally ill patients.

5. The Act does not authorize a physician or any other person to perform a mercy killing or active euthanasia—physicians are only authorized to prescribe the drugs that must be self-administered. Health & Saf. Code § 443.18.

6. Soumya Karlamangla, "As California's End of Life act goes into effect, some doctors question where to draw the line," L.A. Times, June 6, 2016.

7. Tracy Seipel, "California's right-to-die law: Why some doctors will refuse to prescribe lethal drugs," Mercury News, May 13, 2016.

8. Id.

9. Soumya Karlamangla, "As California's End of Life act goes into effect, some doctors question where to draw the line," L.A. Times, June 6, 2016.

10. Tracy Seipel, "California's right-to-die law: Why some doctors will refuse to prescribe lethal drugs," Mercury News, May 13, 2016.

11. Soumya Karlamangla, "As California's End of Life act goes into effect, some doctors question where to draw the line," L.A. Times, June 6, 2016.



14. Health & Saf. Code § 443.15(a)-(b).

15. Health & Saf. Code § 443.15(a).

16. Health & Saf. Code § 443.15(b).

17. Health & Saf. Code § 443.15(c).

18. Health & Saf. Code § 443.15(d).

19. Melody Gutierrez, "California beginning era with new options to end life," San Francisco Chronicle, June 4, 2016.


21. Emily Bazar, "A guide to California's new End of Life Option Act for patients and families," LA Daily News, June 4, 2016.

22. Soumya Karlamangla, "How California's Aid-in-Dying Law Will Work," L.A. Times, May 12, 2016. However, the Act prohibits Medi-Cal, insurance companies and health care service plans from notifying individuals about the availability of an aid-in-dying drug, unless an individual (or his or her physician acting on behalf of the individual) specifically requests such information. Health & Saf. Code § 443.13(c).


24. David Lazarus, "Huntington Hospital accepts California's end-of-life law," Los Angeles Times, July 29, 2016.

25. Id.

26. Health & Saf. Code § 443.13(a)(1).

27. Health & Saf. Code § 443.13(a)(1).

28. Health & Saf. Code § 443.13(a)(2), (b).

29. Health & Saf. Code § 443.13(a)(2), (b).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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