One Year In: NH Healthcare Surrogacy Decision-Making LawBy Katherine M. Hanna andJason D. Gregoire

Adults have the right to make theirown health care decisions, unless they areincapacitated. Until 2015, the only peoplewho were able to make health care deci-sions for an incapacitated adult in NewHampshire were an agent appointed undera durable power for attorney for health care(DPOA-H), or a guardian appointed by theCircuit Court-Probate Division.

Given that most New Hampshire resi-dents did not execute DPOA-H documents,providers and families were frequentlyforced to petition the Probate Division toappoint a guardian over the incapacitatedperson, an expensive and time-consumingprocess. Accordingly, during the 2015 leg-islative session, the General Court passedRSA 137-J:34-37, which allows a physicianor nurse practitioner (APRN) to appoint asurrogate decision-maker from a prioritylist of eligible candidates, if they determinethat a patient lacks capacity and: a) the inca-pacitated person lacks a valid DPOA-H andliving will; b) the incapacitated person lacksa legal guardian; and/or c) the incapacitatedperson's authorized agent or guardian is in-capacitated, not available, or refuses to act.

This article describes the operation ofthe New Hampshire surrogacy decision-making law, answers frequently askedquestions, identifies ambiguities in the law,and discusses best practices for health careproviders.

Operation of the LawOnce a physician or APRN has deter-

mined that a person lacks capacity and doesnot have an appointed agent or guardianavailable to make decisions, then the phy-sician or APRN must make a "reasonableinquiry" as to the availability of possiblesurrogates. RSA 137-J:35, I(a)-() containsthe following list of potential surrogates inorder of priority: a) spouse or common lawspouse; b) adult son or daughter; c) eitherparent; d) adult brother or sister; e) adultgrandchildren; f) grandparent; g) adult aunt,uncle, niece or nephew; h) close friend; i)agent with a financial power of attorney orconservator of estate; or j) guardian of theestate.

If more than one person occupies agiven category (e.g., two adult children),all of them must be identified as surrogateswith equal standing to make decisions. Ifthe appointed surrogates disagree about aparticular health care decision, a majorityshall control unless a minority party insti-tutes guardianship proceedings.

Surrogacy does not take effect untilthe physician or APRN documents the sur-rogate's name, address, phone number, andrelationship to the patient in the medicalrecord. The surrogate must make a goodfaith effort to explore all avenues reason-ably available to discern the desires of thepatient.

The surrogacy lasts for 90 days, un-

SURROGACY continued on page 36

NEW HAMPSHIRE BAR NEWS www.nhbar.org JANUARY 20,2016

I Gobeille from page 34

nationwide, and Liberty claims in its re-sponse brief that "Vermont's reportingrequirements concern the core of whatERISA plans do" and "interfere with na-tionally uniform plan administration."

ERISA establishes federal fiducia-ry standards for private pension plans.Congress passed ERISA in 1974 after awave of investigations reported post-wargenerations of employees were enrolledin underfunded pension plans. Industry,however, was reluctant to agree to federalregulation unless free from state interfer-ence. Thus, ERISA includes a very broad"preemption" clause voiding all state lawsto the extent that they "relate to" employ-er-sponsored benefit plans, whether theydo so explicitly or have a substantial fi-nancial or administrative impact on bene-fit plans. See Section 514, 29 USC section1144(a). Although ERISA focuses on pen-sion plans, self-funded employee healthbenefit plans fall under ERISA's jurisdic-tion, leaving states with little say in howself-funded plans are administered.

Liberty lost its original challenge inthe district court, but the Second Circuitreversed, and Vermont appealed to theUnited States Supreme Court. Vermontwas joined by the United States in argu-ing that its claims reporting requirement"enables it to populate a database that isdesigned as a tool to assess and improvehealthcare outcomes for Vermont resi-dents," and the requirements do not havethe requisite "connection" to ERISA plans

to warrant preemption. pendent sources of claims and eligibility"States are uniquely positioned to im- data is critical for health care reform."

prove quality of care and to control coststhrough the collection and publication ofclaims data," the United States arguesin its amicus brief. "If States are unableto acquire such data from self-insuredERISA healthcare plans, their databaseswill be significantly less comprehensiveand thus not as usefulin developing healthpolicy at both thestate and national lev-els."

In one of the nu-merous amicus briefsfiled in support ofVermont's position,the National Asso-ciation of Health DataOrganizations (NAH-DO) casts doubt onLiberty's argumentthat APCD report-ing is "onerous." Na-tional and uniformstandards under theHealth Insurance Por-tability and Account-ability Act (HIPAA)already govern dataaggregation pro-

If Liberty prevails, the impact on statedata collection efforts will be substantial.More than 60 percent of employees whoreceive insurance through their employ-ers are covered by self-funded insuranceplans, and that percentage is growing."Self-insured" means employers pay for

each health claim as

"If States are unableto acquire such datafrom self-insuredERISA healthcareplans, their databaseswill be significantlyless comprehensiveand thus not as usefulin developing healthpolicy at both the stateand national levels."

- United States amicus briefGobeille v. Liberty Mutual

Insurance Company

grams, and data submission is part of theroutine course of business for insurersand third-party administrators, NAHDOargues. Further, NAHDO states, Liberty'sarguments fly in the face of "the long-standing consensus position of employersand business groups... that access to inde-

it is incurred, insteadof paying a fixed pre-mium to an insurancecarrier. Self-insuredemployers typicallyhire a "third partyadministrator," oftenan insurance compa-ny, to administer theplan and claims pro-cess. Employers whochoose to "self-fund"offer health benefitplans regulated byERISA and the USDepartment of Labor,not state insurancedepartments.

During the ar-gument Dec. 2, thejustices seemed uni-versally concerned

about the states' interests in promotinghealth reform. However, Justices SamuelAlito and Antonin Scalia questioned whythe Affordable Care Act amended ERISAby requiring additional health care claimsreporting, but did not clarify whether stateAPCDs were "saved" from preemption.So too, many of the justices struggledwith how each state could adopt a claimsreporting statute, yet not cause "overlyburdensome" regulation of self-insuredbenefit plans.

Justice Elena Kagan noted that thereis value to states being able to considertheir own health care needs, and "all thedata that's being requested is data thatBlue Cross Blue Shield generates any-way."

Justice Stephen Breyer asked wheth-er perhaps the US Department of Laborcould require ERISA plans to make suchsubmissions to the states. When Liberty'scounsel suggested Vermont could simplycollect the data directly from the clinicsand hospitals, however, Justice AnthonyKennedy argued back, noting it wouldcertainly be a lot easier to "ask" health in-surers for the data than "15 doctors in onesmall town..." Dec. 2, 2015, US SupremeCourt Oral Argument Transcript.

The case will be decided by June2016. The State of New Hampshire pleadsthat in passing ERISA, "Congress cannothave intended to eliminate state innova-tions like using transparency and mar-ket competition to control health costs."Health cost transparency is one of the fewtools remaining to states, New Hampshireargued, "but these gains will be lost" if theSupreme Court finds that Vermont's law ispreempted.

Lucy C. Hodder is a professor oflaw at theUNH School of Law and serves as direc-tor of Health Law and Policy at the UNHInstitute for Health Policy and Practice.

I Surrogacyfrom page 35

less the person regains decision-makingcapacity, the Circuit Court-Probate Divi-sion appoints a guardian of the person, orthe patient is determined to be near death,in which case the surrogacy automaticallyextends.

Surrogacy may be extended for suc-cessive 90-day periods, if the physicianor APRN documents the extension in themedical record. Notably, however, theLegislature did not intend for surrogacyto be a long-term, decision-making mea-sure. Therefore, guardianship proceedingsshould be initiated if it appears that the pa-tient is going to lack capacity long-term.

Best Practices forHealth Care Providers

It is important to remember that, likeintestate succession, surrogacy shouldserve as a last resort - a backstop if all elsefails. As a result, providers should encour-age competent adults to execute DPOA-H and living will documents while theyhave capacity to avoid utilization of thesurrogacy system and the appointment of"long lost Aunt Ethel" as a decision-maker.The Foundation for Healthy Communities(FHC) website has a wealth of free infor-mation, including free DPOA-H and livingwill forms, in addition to helpful materi-als on the surrogacy decision-making law,including a form surrogacy policy. Seehttp://www.healthynh.com.

Because most New Hampshire resi-dents have not executed a DPOA-H orliving will, providers and facilities shouldadopt a surrogacy policy and train physi-cians, APRNs, and staff on the operation ofthe policy and RSA 137-J:34-37. The exis-tence of clear policies and procedures willserve to avoid any confusion if a surrogatemust be appointed.

These policies and procedures shouldencourage health care facilities and providersto obtain biographical information upon ad-mission or arrival at your hospital or practice,in order to know whom to contact and how tocontact them should the need for surrogacyarise. These policies should also contain a de-tailed description of how to determine capac-ity and to ensure that a physician or APRNhas actually declared the patient incapaci-tated before designating a surrogate.

The health care surrogacy decision-making law has helped many providers,facilities, and families to avoid the time-consuming and expensive guardianshipprocess and to secure prompt and sounddecision-making in times of emergency orthe need for informed consent.

Although RSA 137-J:34-37 containssome ambiguities that need to be fixed,this surrogacy system beats the old sys-tem under which providers were stuck inlimbo between running to court and incur-ring thousands of dollars in legal fees, orimproperly relying on unauthorized familymembers.

Jason Gregoire advises health care provid-ers on regulatory, corporate, contracting,licensing, risk management, litigation, andpatient care issues. He advises clients, andhas presented on the surrogacy law.

Kate Hanna serves as general and specialcounsel to hospitals, nursing homes, physi-cian andAPRA practices, dental practices,and individual practitioners and has beenactively involved for years in legislative ef-forts to enact the surrogacy law.

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HELPING YOUR CLIENTS'HEALTH CARE NEEDS

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