This material is provided for informational purposes only and does not constitute legal advice. Readers should consult their own attorneys regarding the application of any legal or regulatory requirements to their specific circumstances. This material was developed in partnership with outside counsel, Epstein Becker & Green, P.C.
Medical aid in dying
and hospice compliance
The accordion below provides general hospice guidance related to medical aid in dying. Requirements and permitted practices vary by state. Scroll down past the accordion for state-specific information and source citations
Yes.
There is nothing in federal law or in the statutory frameworks governing medical aid in dying (MAID) that prohibits bedside hospice staff from providing truthful, non‑directive information when patients express interest in controlling when their life ends using indirect or non‑statutory language. Responding to such expressions with accurate information about what MAID is and whether it is legally available in the patient’s state is consistent with standard goals‑of‑care communication and informed consent principles and does not itself constitute formal participation in the MAID process.
No.
Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
YES.
Federal law does not prohibit hospice attending physicians from serving as prescribers for medical aid in dying. Additionally, under applicable state laws, hospice attending physicians may serve as prescribers for medical aid in dying, provided the hospice attending physicians comply with the requirements of the End of Life Option Act and other relevant statutes and regulations, such as the Assisted Suicide Funding Restriction Act. In the following states where medical aid in dying is legal, hospice attending physicians can serve as prescribers under the specified requirements.
YES. Contingent upon compliance with state laws, hospice attending physicians may serve as the consulting physician in medical aid in dying. Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
YES.
Hospice employees may be physically present in the patient’s room at the point of ingestion in compliance with federal and state laws. Federal and state laws do not require hospice programs to prohibit hospice employees from being present during ingestion of the medical aid in dying medication. Prohibiting employees from being present does not reduce a hospice’s regulatory risk. Below, find state specific statutes and regulations.
Yes.
Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from assisting in preparing the aid in dying medication for a participant who utilizes medical aid in dying. Some states like California specifically include statutory language protecting individuals who assist in the preparation of the medication from civil and/or criminal liability while other states protect individuals acting in good faith under the state’s End of Life Options Act.
No.
Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
No.
CMS prohibits a hospice from involuntarily discharging a patient for seeking information about medical aid in dying or seeking a prescription for medical aid in dying. According to 42 CFR 418.26, a hospice may only discharge a patient if: (1) they move out of the hospice’s service area or transfers to another hospice, (2) it’s determined that the patient is no longer terminally ill, or (3) they are disruptive, abusive, or uncooperative to the extent that hospice staff’s ability to effectively give care is seriously impaired. These federal regulations apply to all Medicare hospice programs and are conditions of participation in the Medicare program. Within the 12 states where medical aid in dying is permitted, the statutes and regulations do not explicitly address whether a hospice may discharge a patient solely for seeking information about medical aid in dying or requesting a prescription for aid-in-dying drugs. That said, we’ve outlined supplemental information regarding discharge policies.
No.
Aid in dying is not suicide under state law. The cause of death is the terminal condition.
No,
not unless the prescribing clinician or clinical staff of the hospice determines that the patient meets the requirement for a psychiatric evaluation under the aid in dying law for a question of competency
State Specific Details
Delaware
Hawaii
Illinois
Maine
New Jersey
New Mexico
New York
Oregon
Vermont
Washington
Washington DC
Individual State Details
California Hospice Legal and Policy State Detail
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. A hospice attending physician in California can serve as a prescriber in medical aid in dying when they meet the criteria for an attending physician. A provider is an attending physician when he/she (A) Is authorized to dispense medicine under California law, (B) Has a current United States Drug Enforcement Administration (USDEA) certificate, and (C) Complies with any applicable administrative rule or regulation. Cal. Health & Safety Code § 443.5(b)(1).
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting provider in medical aid in dying under California law, provided they meet the requirements of a consulting provider. Under California law, the End of Life Option Act defines a consulting provider as one who is independent from the attending physician and is qualified by specialty or experience to make a professional diagnosis and prognosis regarding an individual’s terminal disease. Cal. Health & Safety Code § 443.1.
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. California Health & Safety Code § 1599.1 establishes that residents of hospice facilities have the right to appeal an involuntary transfer or discharge through the appeal process provided under federal regulations (42 C.F.R. § 483.204).
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. California’s End of Life Option Act explicitly states that persons can be present when a qualified individual self-administers the prescribed aid in dying drug. Further, these persons present at the time of ingestion will not be subject to civil or criminal liability for their presence. Cal. Health & Safety Code § 443.14(a), (c). California’s End of Life Option Act does not require hospice programs to prohibit their employees from being present when a patient ingests the aid in dying drug. Cal. Health & Safety Code § 443.5(5).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
YES. Pursuant to Section 443.14, an individual “present” when the qualified individual self-administers is protected from civil and/or criminal liability and may assist by preparing the aid-in-dying medication so long as they do not assist ingestion of the medication. Additionally, a health care provider, entity, or professional organization may not “subject an individual to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating in good faith compliance with the law.” Cal. Health & Safety Code § 443.14(a)-(b).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Pursuant to Section 443.18, death resulting from the self-administration of an aid-in-dying drug is not suicide. Cal. Health & Safety Code § 443.13(a)
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
YES. “Before prescribing an aid-in-dying drug, the attending physician shall do all of the following:
(1) Make the initial determination of all of the following:
(A) (i) Whether the requesting adult has the capacity to make medical decisions.
(ii) If there are indications of a mental disorder, the physician shall refer the individual for a mental health specialist assessment.
(iii) If a mental health specialist assessment referral is made, no aid-in-dying drugs shall be prescribed until the mental health specialist determines that the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.” Cal. Health & Safety Code § 443.5.(a).
Colorado Hospice Legal and Policy State Details
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. A hospice attending physician in Colorado can serve as a prescriber in medical aid in dying when they meet the criteria for an attending physician. An attending physician is one who has primary responsibility for the care of a terminally ill individual and the treatment of the individual’s terminal illness. Colo. Rev. Stat. Ann. § 25-48-102(2).
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under Colorado law, provided they meet the requirements of a consulting physician. Under the Colorado End-of-Life Options Act, a consulting physician is one who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual’s illness. Colo. Rev. Stat. Ann. § 25-48-102(3).
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. The Colorado Administrative Code mirrors the federal rules on discharge of a hospice patient. 10 Colo. Code Regs. § 2505-10:8.550(7)(A).
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. The End-of-Life Options Act does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. That said, the statute requires attending providers to educate the individual about the importance of having another person present when the individual self-administers the medical aid-in-dying medication. Colo. Rev. Stat. Ann. § 25-48-106(1)(h)(I).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. “A person is not subject to civil or criminal liability or professional disciplinary action for acting in good faith under this article, which includes being present when a qualified individual self-administers the prescribed medical aid-in-dying medication” and “a health care provider, professional organization or association may not subject an individual to censure, discipline, suspension, loss of license, privileges, or membership, or any other penalty.” Colo. Rev. Stat. Ann. § 25-48-116(1)-(2) .
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. “…do not, for any purpose, constitute suicide, assisted suicide, mercy killing, homicide, or elder abuse under the “Colorado Criminal Code”… Colo. Rev. Stat. Ann. § 25-48-121 .
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. Per Sec. 25-48-108, “If the attending physician or the consulting physician believes that the individual may not be mentally capable of making an informed decision, the attending physician or consulting physician shall refer the individual to a licensed mental health professional for a determination of whether the individual is mentally capable and making an informed decision.”
Delaware Hospice Legal and Policy State Details
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. A hospice attending physician in Delaware can serve as a prescriber in medical aid in dying so long as he/she meet the criteria for an “attending physician.” An attending physician is designated by an individual to have primary responsibility for the individual’s terminal illness. However, the attending physician cannot provide treatment that is limited to or primarily comprised of prescribing or dispensing end of life medication. 16 Del. Code Ann. § 2502C.
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under Delaware law, so long as they meet the state’s requirements. A consulting physician is a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding an individual’s terminal illness and is not designated by an individual to have primary responsibility for the individual’s health care. 16 D.C. Code § 2502C(5). Note, this role may also be executed by a consulting APRN. 16 D.C. Code § 2502C(11).
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. Hospices in Delaware do not have explicit grounds to discharge a patient solely for seeking information about medical aid in dying or requesting a prescription for such medication. Relatedly, Delaware requires hospice programs to develop written policies pertaining to criteria for discharge from hospice programs and written policies regarding the rights and responsibilities of patients. 16 Del. Admin. Code 3380-5.0(5.1.9),(5.5).
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. Delaware does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. The law does however require attending physicians to educate the individual about the importance of having another person present when the individual self-administers the medical aid-in-dying medication. Del. Laws ch. 35C § 2508C. (8)(b).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
YES. Pursuant to Section 2613C, a person acting in good faith and following accepted health-care standards is protected from liability or disciplinary actions for being present during, prescribing, dispensing, refusing to prescribe, or providing accurate information about medication used to legally end a patient’s life. Del. Laws ch. 35C § 2513C(a).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Act. 12 A request or prescription for or the dispensing of medication under this Act does not constitute elder abuse, suicide, assisted-suicide, homicide, or euthanasia. 16 Del. Code Ann. § 2512C.
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. Delaware requires that “individual must be evaluated by a psychiatrist or a psychologist if either the attending or consulting physicians or APRNs are concerned that the individual lack decision-making capacity.” 16 Del. Code Ann. § 2502C.
District of Columbia Hospice Legal and Policy State Details
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. A hospice attending physician in the District of Columbia can serve as a prescriber in medical aid in dying when they satisfy the criteria for an attending physician. An attending physician is “the physician selected by, or assigned to, the patient who has primary responsibility for the treatment and care of the patient.” D.C. Code § 7–621(1). D.C. code specifies that the attending physician’s practice shall not be primarily or solely composed of patients requesting a covered medication. D.C. Code § 7-661.01(1).
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under the District of Columbia’ Death with Dignity Act, provided they meet the requirements of a consulting physician. The Death with Dignity Act defines a consulting physician as “a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s disease and who is willing to participate in the provision of a covered medication to a qualified patient in accordance with this chapter.” D.C. Code § 7-661.01(3).
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
Adult hospice services under the District of Columbia (District) Medicaid Program follow the rules enumerated in 29 DCMR § 939. The rule provides directives on the appropriateness of discharge.
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. The District of Columbia’s Death with Dignity laws do not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. That said, the statute requires attending providers to educate the individual about the importance of having another person present when the individual self-administers the medical aid-in-dying medication. DC ST § 7-661.03(a)(7).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. Pursuant to Section 12, individuals are protected from civil, criminal, and/or professional liability for acting in good faith under the law, including participating in, refusing to participate in, or being present during the administration of aid-in-dying medication. D.C. Law 21-182 § 12(a).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Actions taken in accordance with this act do not constitute suicide, assisted suicide, mercy killing, or homicide. D.C. Law 21-182 § 16(b).
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. D.C. Code § 7-661.03(a)(4) – “Upon receiving a written request for a covered medication pursuant to 7-661.02(a)(2), the attending physician shall[] refer the patient to counseling if appropriate, pursuant to Sec. 7-661.04”
Hawaii Hospice Legal and Policy State Details
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. Hospice attending physicians may serve as prescribers for medical aid in dying in compliance with federal and state law, provided they meet the requirements outlined in Hawaii’s “Our Care, Our Choice Act.” A hospice provider is an attending provider when the physician licensed pursuant to chapter 453 or an advanced practice registered nurse licensed pursuant to chapter 457 has responsibility for the care of the patient and treatment of the patient’s terminal disease. Haw. Rev. Stat § 327L-1.
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under Hawaii law, provided they meet the requirements of a consulting physician. Under the Our Care, Our Choice Act, a “consulting provider” means a physician licensed pursuant to chapter 453 who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s disease or advanced practice registered nurse licensed pursuant to chapter 457 who is qualified by specialty or experience to diagnose and prescribe medication. Haw. Rev. Stat § 327L-1.
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
N/A
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. Hawaii does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. Also, the attending provider is required to counsel the patient about the importance of having another person present when the patient self-administers the medication and to ensure that the patient does not self-administer the medication in a public place. Haw. Rev. Stat § 327L-4(a)(7).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. A person “shall not be subject to civil or criminal liability or professional disciplinary action for participating or acting in good faith compliance with the law, including being present when a qualified patient self-administers the prescribed medication” and no profession organization, association, health care provider, or health care facility may “subject any person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership, or other penalty for participating or refusing to participate in good faith compliance.” Haw. Rev. Stat § 327L-19(1)-(2).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Nothing in this chapter shall be construed to authorize a health care provider, health care facility, or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia. Actions taken in accordance with this chapter shall not, for any purpose, constitute suicide, assisted suicide, mercy killing, murder, manslaughter, negligent homicide, or any other criminal conduct under the law. Haw. Rev. Stat § 327L-18(a).
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. The attending provider shall refer the patient for counseling. No medication to end a patient’s life pursuant to this chapter shall be prescribed until the person performing the counseling determines that the patient is capable, and does not appear to be suffering from undertreatment or nontreatment of depression or other conditions which may interfere with the patient’s ability to make an informed decision pursuant to this chapter. Haw. Rev. Stat § 327L-6.
Illinois Hospice Legal and Policy State Details
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. A hospice attending physician in Illinois may serve as a prescriber for medical aid in dying when they meet the statutory criteria for an attending physician under the End-of-Life Options for Terminally Ill Patients Act. An attending physician is a physician with primarily responsibility for the care and treatment of the patient and the patient’s terminal disease. A physician is an individual licensed to practice medicine under the Medical Practices Act of 1987. Ill. S.B. 1950, 104th Gen. Assemb. (2025).
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under Illinois law, provided they meet the requirements of a consulting physician. Under the Illinois End-of-Life Options for Terminally Ill Patients Act, a consulting physician is one who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a terminally ill individual’s illness. Colo. Rev. Stat. Ann. § 25-48-102(3). Ill. S.B. 1950, 104th Gen. Assemb. (2025).
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. The Illinois End-of-Life Options for Terminally Ill Patients Act does not include language regarding hospice discharge. Patients must be informed of all feasible end of life care and treatment options for the patient’s terminal disease which includes, but is not limited to “comfort care, palliative care, hospice care, and pain control, and the risks and benefits of each.” Ill. S.B. 1950, 104th Gen. Assemb. (2025).
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. Illinois specifically states that no health care entity can prohibit a health care professional (e.g., a physician, pharmacist, or licensed mental health professional) from “being present. . . when a qualified patient self-administer medication prescribed. . . if requested by the qualified patient or their representative.” Ill. S.B. 1950, 104th Gen. Assemb. (2025).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. A physician who is present at self-administration may, “without civil or criminal liability, assist the qualified patient by preparing the medication prescribed.” Ill. S.B. 1950, 104th Gen. Assemb. (2025).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. A “request by a patient for aid in dying does not along constitute grounds for neglect or elder abuse for any purpose or law,” nor is it the sole reason for appointing a guardian. Ill. S.B. 1950, 104th Gen. Assemb. (2025).
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. A licensed mental health professional must determine whether the patient is suffering from a psychiatric or psychological disorder that is resulting in impaired judgement If the licensed mental professional determines that the patients is suffering from a psychiatric or psychological disorder resulting in impaired judgement, the patient will not be a qualified patient and the attending physician shall not prescribe medication to the patient. Ill. S.B. 1950, 104th Gen. Assemb. (2025).
Maine Hospice Legal and Policy FAQ
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. Hospice attending physicians may serve as prescribers for medical aid in dying in compliance with federal and state law, provided they meet the requirements outlined in the Maine Death with Dignity Act (22 M.R.S.A. § 2140), as an attending physician. An attending physician is on who “has primary responsibility for the care of a patient and the treatment of that patient’s terminal disease.” 22 M.R.S.A. § 2140(2)(C).
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under Maine law, provided they meet the requirements of a consulting physician. “Consulting physician” means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a patient’s disease. 22 M.R.S.A. § 2140(2)(D).
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. The Maine Death with Dignity Act does not explicitly permit a hospice to discharge a patient solely for seeking such information or prescriptions. The emphasis on patient-centered care and informed decision-making in hospice philosophy suggests that discharging a patient for exercising their rights under the Death with Dignity Act may conflict with these principles. See 22 M.R.S.A. § 2140. For example, the statute provides each patient with the right to “information regarding all treatment options reasonably available for the care of the patient,” which includes medical aid in dying. 22 M.R.S.A. § 2140(3).
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. Maine does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. Moreover, state law requires attending providers to educate the individual about the importance of having another person present when the individual self-administers the medical aid-in-dying medication. 22 M.R.S.A. § 2140.
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. While Maine’s Death with Dignity Act does not include an explicit “good faith” clause or an express authorization for hospice employees to assist in the preparation of medical aid in dying medication, the statute also does not have an explicit prohibition against hospice employees assisting in the preparation of aid in dying medication.
● Pursuant to Section 22, there is no prohibition against an employee of a health care provider, independent contractor, or other person or entity, including another health care provider from “[p]articipating, or entering into an agreement to participate, in activities under this Act. . .” The term “participating or entering into an agreement to participate in activities under this Act” is defined as “[d]elivering the prescription for, dispensing or delivering the dispensed medication pursuant to the Act” or “being present when the qualified patient takes the medication prescribed. . .” State licensed psychiatrists, psychologists, clinical social workers, and clinical professional counselors may perform their duties if a referral to one is made under the Act.
● Pursuant to Section 20, any action that is taken “in accordance” with the Maine Death with Dignity Act does not, for any purpose, “constitute suicide, assisted suicide, mercy killing or homicide under the law.” 22 M.R.S.A. §§ 2140(22)(D); 2140(22)(G); 2140(20).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Actions taken in accordance with this Act do not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide under the law. State reports may not refer to acts committed under this Act as “suicide” or “assisted suicide.” Consistent with the provisions of this Act, state reports must refer to acts committed under this Act as obtaining and self administering life-ending medication. A patient’s death certificate, pursuant to section 2842, must list the underlying terminal disease as the cause of death. 22 M.R.S.A. 2140(20).
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. Consulting referral. If, in the opinion of the attending physician or the consulting physician, a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, the physician shall refer the patient for counseling. Medication to end a patient’s life in a humane and dignified manner may not be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment. 22 M.R.S.A. 2140(8).
New Jersey Hospice Legal and Policy FAQ
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. Hospice attending physicians may serve as prescribers for medical aid in dying in compliance with New Jersey law, provided they meet specific s a physician licensed pursuant to Title 45 of the Revised Statutes who has primary responsibility for the treatment and care of a qualified terminally ill patient and treatment of the patient’s illness, disease, or condition.” N.J.S.A. 26:16-3.
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under New Jersey law, provided they meet the requirements of a consulting physician. New Jersey law requires that a consulting physician be a physician licensed pursuant to Title 45 of the Revised Statutes who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a patient’s illness, disease, or condition. N.J.S.A. 26:16-3. The consulting physician must independently confirm the patient’s terminal illness and prognosis and ensure the patient meets all statutory requirements for medical aid in dying. N.J.S.A. 26:16-6(a)(4), N.J.S.A. 26:16-10(d)(4).
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. Under New Jersey Administrative Code 8:42C-5.1, patients in hospice programs have the right to be informed of available treatment options. Discharging a patient for seeking information about medical aid in dying could violate these rights. Additionally, New Jersey’s Hospice Licensing Standards assert that hospices shall adhere to applicable Federal rules, regulations, and requirements, which means hospices must hospices cannot involuntarily discharge a patient for seeking or asking for inform about medical aid in dying. See N.J.A.C. 8:42C–3.1(h); 42 CFR 418.26.
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. New Jersey’s statutes on medical aid in dying do not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. N.J.S.A. 26:16-3.
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. Pursuant to Section 17, a person acting in good faith and in substantial compliance with the provisions of the Medical Aid in Dying for the Terminally Ill Act is protected from civil, criminal, or professional disciplinary action for participating in, or refusing to participate in, a qualified terminally ill patient’s request for medication to end their life. N.J.S.A. 26:16-17(a)(2).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Any action taken in accordance with the provisions of P.L.2019, c. 59 (C.26:16-1 et al.) shall not constitute patient abuse or neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide under any law of this State. N.J.S.A. 26:16-17(a)(2).
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. “C.26:16-6 Responsibilities of attending physician. 6. a. The attending physician shall ensure that all appropriate steps are carried out in accordance with the provisions of P.L.2019, c.59 (C.26:16-1 et al.) before writing a prescription for medication that a qualified terminally ill patient may choose to self administer pursuant to P.L.2019, c.59 (C.26:16-1 et al.), including such actions as are necessary to: … (5) refer the patient to a mental health care professional, if appropriate, pursuant to section 8 of P.L.2019, c.59 (C.26:16-8).” N.J.S.A. 26:16.
New Mexico Hospice Legal and Policy FAQ
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. Under the End-of-Life Options Act, a “prescribing health care provider” is defined as a physician, osteopathic physician, nurse licensed in advance practice, or physician assistant authorized to prescribe medication. See NM Stat § 24-7C-2(D), (G). As physicians, hospice attending physicians meet the criteria to serve as prescribers.
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. In New Mexico, a hospice attending physician may act as the consulting physician if they are licensed under the relevant medical acts and fulfill statutory requirements. In fact, New Mexico’s statutes explicitly highlight hospice providers are potential consulting physicians.
- Section 24-7C-3 states that a prescribing health care provider may provide a prescription for medical aid in dying medication to an individual only after the prescribing health care provider has confirmed in the individual’s health record that at least one physician or osteopathic physician licensed pursuant to the Medical Practice Act [Chapter 61, Article 6 NMSA 1978] or the Osteopathic Medicine Act [Chapter 61, Article 10 NMSA 1978] has determined, after conducting an appropriate examination, that the individual has capacity, a terminal illness and the ability to self-administer the medical aid in dying medication. That physician may be the prescribing health care provider pursuant to this section, the individual’s hospice health care provider or another physician who meets the requirements of this subsection.
- Section 24-7C-2 defines “health care provider” to include physicians licensed under the Medical Practice Act or Osteopathic Medicine Act, among others. This definition encompasses hospice attending physicians who are licensed under these acts.
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal
Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. State law does not authorize a involuntarily discharge a patient for seeking information or a prescription for medical aid in dying. A hospice may refuse to participate in medical aid in dying and transfer to another provider if the hospice/provider objects for reasons of conscience.
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. New Mexico does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. That said, the hospice or hospice employee may invoke a conscience based refusal to being present at time of ingestion. NM Stat § 24-7C-7(A). If a hospice employee refuses to be present based on conscience beliefs, New Mexico protects them from criminal liability, licensing sanctions or other professional disciplinary action. NM Stat § 24-7C-7(A). Additionally, a hospice that refuses to offer medical aid in dying on account of conscience, shall not subject a person to censure, discipline, suspension, loss or denial of license, credential, privileges or membership or other penalty for participating, or refusing to participate, in the provision of medical aid in dying in good faith compliance with the provisions of the End-of-Life Options Act. NM Stat § 24-7C-7(B).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. Pursuant to Section 24-7C-7, a person will not be subject to criminal liability, licensing sanctions, or other professionally disciplinary action for (1) participating in medical aid in dying in good faith compliance with the End of Life Options Act, (2) being present when a qualified patient administers the prescribed medical aid in dying medication, and (3) refusing to participate in medical aid in dying in any way. NM Stat § 24-7C-7.
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Nothing in the End-of-Life Options Act shall be construed to authorize a physician or any other person to end an individual’s life by lethal injection, mercy killing or euthanasia. Actions taken in accordance with the End-of-Life Options Act shall not be construed, for any purpose, to constitute suicide, assisted suicide, euthanasia, mercy killing, homicide or adult abuse under the law. NM Stat § 24-7C-8.
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. “If an individual has a recent history of a mental health disorder or an intellectual disability that could cause impaired judgment with regard to end-of-life medical decision making, or if, in the opinion of the prescribing health care provider or consulting health care provider, an individual currently has a mental health disorder or an intellectual disability that may cause impaired judgment with regard to end-of-life medical decision making, the individual shall not be determined to have capacity to make end-of-life decisions until the:
A. health care provider refers the individual for evaluation by a mental health professional with the training and expertise to assess a person with such a disorder or disability; and
B. mental health professional determines the individual to have capacity to make end-of-life decisions after evaluating the individual during one or more visits with the individual.” NM Stat § 24-7C-4 (2024).
New York Hospice Legal and Policy FAQ
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice staff provide information about medical aid in dying when patients express interest in controlling when their life ends, even when patients do so without using precise or legal language?
YES. Nothing in New York’s Medical Aid in Dying Act or in federal law prohibits hospice staff from providing truthful, non-directive information when a patient expresses interest in controlling the timing of their death, even using indirect or non-statutory language. Responding to such expressions with accurate information about what medical aid in dying is, and whether it is available under New York law, is consistent with standard goals-of-care communication and informed consent principles, and does not itself constitute formal participation in the medical aid in dying process.
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. A hospice attending physician in New York can serve as a prescriber for medical aid in dying under the Medical Aid in Dying Act (herein “Act”) provided they meet the requirement set forth in the Act. An attending physician is defined as “the physician who has primary responsibility for the care of the patient and treatment of the patient’s terminal illness or condition.” N.Y. Pub. Health Law §§ 2899-D(2); 2899-F. Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician for medical aid in dying under New York law, provided they meet the requirements for a consulting physician. Funding for a hospice physician’s time in this role is likewise subject to the Assisted Suicide Funding Restriction Act. As discussed above, CMS’s “prohibited from playing a role” language appears only in non-binding wage index preamble commentary, not the codified conditions of participation; consistent with the compliance approach discussed above, hospices should pay from non-federal funds, and separately report (e.g., cost-report Line 72), any physician time spent exclusively facilitating medical aid in dying, while other consulting-physician functions may otherwise be delivered and billed as part of routine hospice care. New York law defines a consulting physician as “a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding a person’s terminal illness or condition.” N.Y. Pub. Health Law § 2899-D(4).
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. Federal law prohibits a hospice from involuntarily discharging a patient for seeking information about, or a prescription for, medical aid in dying, regardless of whether New York’s Medical Aid in Dying Act separately addresses discharge. Under 42 C.F.R. § 418.26, a Medicare-certified hospice may discharge a patient only if: (1) the patient moves out of the hospice’s service area or transfers to another hospice, (2) the hospice determines the patient is no longer terminally ill, or (3) the patient’s behavior is disruptive, abusive, or uncooperative to the extent that the hospice’s ability to furnish care to the patient or to operate effectively is seriously impaired. These conditions of participation apply to all Medicare-certified hospices, including those operating in New York, and are not displaced by the Act’s silence on involuntary discharge.
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. New York law explicitly provides that if otherwise authorized by law, the attending physician may sign the qualified individual’s death certificate, and the cause of death listed will be the underlying terminal illness or condition. N.Y. Pub. Health Law § 2899-P.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. New York’s Medical Aid in Dying Act protects hospice employees and other persons from liability for being present when a qualified individual self-administers medication. Specifically, a physician, pharmacist, other health care provider or other person shall not be subject to civil, administrative, or criminal liability or penalty or professional disciplinary action by any government entity for taking any reasonable good-faith action under the article, including being present when a qualified individual self-administers medication. Additionally, a health care provider or other person shall not be subject to employment, credentialing, or contractual liability or penalty for being present when a qualified individual self-administers medication. N.Y. Pub. Health Law § 2899-L(1)-(2).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
YES. New York law protects individuals from liability for taking any reasonable good-faith action under the Medical Aid in Dying Act, which may include assisting in preparing the medication, provided the person does not administer the medication to the patient. The patient must self-administer the medication themselves. N.Y. Pub. Health Law §§ 2899-L(1); 2899-F(4).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. New York law explicitly provides that a patient who requests medication under the Medical Aid in Dying Act shall not be considered a person who is suicidal, and self-administering medication under the article shall not be deemed to be suicide for any purpose. Action taken in accordance with the article shall not be construed for any purpose to constitute suicide, assisted suicide, attempted suicide, promoting a suicide attempt, euthanasia, mercy killing, or homicide under the law. N.Y. Pub. Health Law § 2899-N(1).
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
YES. Before a patient who is requesting medication may receive a prescription for medication under this article, a mental health professional must evaluate the patient and report, in writing, to the attending physician and the consulting physician, the mental health professional’s independent conclusions about whether the patient has decision-making capacity to make an informed decision, provided that if, at the time of the report, the patient has not yet been referred to a consulting physician, then upon referral the attending physician shall provide the consulting physician with a copy of the mental health professional’s report.
If the mental health professional determines that the patient lacks decision-making capacity to make an informed decision, the patient shall not be deemed a qualified individual, and the attending physician shall not prescribe medication to the patient. However, a determination made pursuant to this section that an adult patient lacks decision-making capacity shall not be construed as a finding that the patient lacks decision-making capacity for any other purpose. N.Y. Pub. Health Law § 2899-I.
Oregon Hospice Legal and Policy FAQ
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. Hospice attending physicians may serve as prescribers for medical aid in dying in compliance with Oregon law, provided they meet the requirements set forth under the Oregon Death with Dignity Act (herein “Act”). Under the Act, an attending physician is “the physician who has primary responsibility for the care of the patient and treatment of the patient’s terminal disease.” ORS 127.800 §1.01(2).
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. Under the Oregon Revised Statute’s Death with Dignity Act, a hospice attending physician may serve as a consulting physician if the meet its requirements. The Act defines a consulting physician as a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s disease. O.R.S. 127.800 §1.01(4).
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
N/A
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. The Oregon Death with Dignity Act does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. Moreover, employees are protected from civil or criminal liability or professional disciplinary action for being present when a qualified patient takes prescribed medication to end their life. ORS 127.885(1). Additionally, the statute requires attending physicians to counsel the patient about the importance of having another person present when the patient takes the medication prescribed pursuant. ORS 127.815 §3.01(1)(f).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. Pursuant to Section 4.01, no person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with Oregon’s Death with Dignity Act, including being present when the patient takes the prescribed aid in dying medication, and no professional organization, association, or health care provider can subject that a person to censure, discipline, suspension, loss of license, loss of privileges, loss of membership or other penalty for participating or refusing to participate in good faith compliance with the Act. O.R.S. 127.885 §4.01(1)-(2).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Nothing in ORS 127.800 to 127.897 shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with ORS 127.800 to 127.897 shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. [1995 c.3 §3.14]. O.R.S. 127.880 §3.14. C.
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. Under ORS 127.815, “The attending physician shall[] refer the patient for counseling if appropriate pursuant to ORS 127.825 (§3.03. Counseling referral)[.]”
Under, ORS 127.825, “If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient’s life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”
Vermont Hospice Legal and Policy FAQ
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. In Vermont, a physician can prescribe medication to hasten the patient’s death under the requirements of 18 V.S.A. § 5283. Given hospice attending physicians are physicians, they can serve as prescribers.
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under Vermont law, provided they meet the requirements of a consulting physician. A physician is an individual licensed to practice medicine under 26 V.S.A. chapter 23 or 33. 18 V.S.A. § 5281(9). Vermont outlines the required steps a consulting physician must take to help a patient attain medical aid in dying. 18 V.S.A. § 5283.
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. A hospice may discharge a patient only under specific circumstances, such as the patient moving out of the service area, choosing another provider, or failing to pay for services (Vt. Admin. Code 12-4-205:XVI).
- Vermont law explicitly protects the rights of patients to make informed decisions about their care, including end-of-life options. 18 V.S.A. § 1852. Moreover, dying patients their rights or discriminating against them based on their health care decisions is considered unprofessional conduct. 26 V.S.A. § 1354; 3 V.S.A. § 129a.
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. Vermont does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. 18 V.S.A. § 5281.
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. Pursuant to Section 5285, health care facilities and providers may not discipline or penalize medical professionals for acting or refusing to act in good faith under the Patient Choice at End of Life Act, and such professionals are protected from civil, criminal, or disciplinary liability when complying in good faith. 18 V.S.A. § 5285(b)-(c).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Nothing in this chapter shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia. Action taken in accordance with this chapter shall not be construed for any purpose to constitute suicide, assisted suicide, mercy killing, or homicide under the law. This section shall not be construed to conflict with section 1553 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152. (Added 2013, No. 39, § 1, eff. May 20, 2013.) 18 V.S.A. § 5292.
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. “The physician either verified that the patient did not have impaired judgment or referred the patient for an 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.” 18 V.S.A. § 5283(a)(8).
Washington Hospice Legal and Policy FAQ
Frequently asked questions on medical aid in dying and hospice compliance
- May hospice attending physicians serve as a prescriber for medical aid in dying in compliance with federal and state law?
YES. Under the Washington Death with Dignity Act, a “qualified medical provider” includes physicians licensed under RCW 18.57 or 18.71, physician assistants licensed under RCW 18.71A, and advanced registered nurse practitioners licensed under RCW 18.79. Hospice attending physicians who are licensed under these chapters may be prescribers. RCW § 70.245.010.
- May a hospice attending physician serve as the consulting physician in medical aid in dying?
YES. A hospice attending physician may serve as a consulting physician in medical aid in dying under Washington law, provided they meet the requirements of a consulting physician. RCW § 70.245.010.
Physicians providing this service should also be mindful of the federal Assisted Suicide Funding Restriction Act, 42 U.S.C. § 14402. CMS’s hospice wage index rulemaking has repeatedly stated, in preamble commentary rather than in the codified hospice conditions of participation at 42 C.F.R. Part 418, that hospices are “prohibited from playing a role” in medical aid in dying; reconciling that non-binding statement with the per diem’s coverage of routine palliative, consultative, and prescribing services is addressed at length in Malone & Walters in the Journal of Aid-in-Dying Medicine, 2023. The article’s recommended approach is to pay for the aid-in-dying medication and any staff time exclusively dedicated to facilitating medical aid in dying from non-federal sources and separately report those costs (e.g., cost-report Line 72), while delivering and billing routine consultation, assessment, and prescribing time as part of ordinary hospice care. Because CMS has not codified this line-drawing in binding regulation, hospices should treat it as a considered compliance position rather than a guaranteed safe harbor.
- May a hospice attending physician take custody of aid in dying medication from the pharmacy on behalf of the patient?
No. Pursuant to chain of custody requirements for controlled substances under the Federal Drug Enforcement Administration (DEA), prescribers may not take custody of the aid in dying medication at any time and doing so may expose them to severe civil and even criminal penalties. Although certain state laws may reference prescribing physicians taking custody of the aid in dying medications from the pharmacy, federal DEA regulations preempt any contrary state laws. The DEA has a strict system for tracking the chain of custody of controlled substances between registered entities, and generally prohibits the distribution of controlled substances from one Practitioner to another outside of a few specific circumstances. The DEA’s tracking system does not track controlled substances once dispensed to a patient or patient representative. Also, note that the Controlled Substances Act and regulations are clear that Practitioners may not dispose of controlled substances without a specific registration to expressly allow it so neither the pharmacy nor any of the Prescribers should ever be in the chain of custody for unused medications.
- May a hospice involuntarily discharge a patient for seeking information about medical aid in dying or seeking a prescription for medical aide in dying?
No. Health care providers are explicitly protected under RCW 70.03.020 from discrimination or adverse actions for providing medically accurate and comprehensive information about Washington’s Death with Dignity Act, including information about relevant resources and how to access them. RCW § 70.03.020.
- Must a hospice prohibit its clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying?
No. Nothing in Medicare hospice regulations or the Assisted Suicide Funding Restriction Act requires hospices to prohibit clinical staff from pronouncing death, certifying the cause of death, or signing a death certificate for a participant who utilizes medical aid in dying. Further, doing so may be required under applicable state hospice regulations.
- May hospice employees be physically present in the patient’s room at the point of ingestion in compliance with federal and state law?
YES. The Washington Death with Dignity Act does not require hospice programs to prohibit hospice employees from being present at time of ingestion of medical aid in dying medication. RCWA 70.245.040(1)(g). In fact, the statute provides immunity from civil or criminal liability or professional disciplinary action for individuals who elect to be present when a qualified patient takes the prescribed medication to end their life. RCW § 70.245.190(1)(a).
- May hospice employees assist in preparing the aid in dying medication in compliance with federal and state law?
Yes. Pursuant to Section 70.245.190, a person who participates in good faith compliance with the Death with Dignity Act, including being present when a qualified patient takes prescribed medication to end their life in a humane and dignified manner, shall not be subject to civil or criminal liability or professional disciplinary action, and no professional organization, association, or health care provider may impose penalties such as censure, suspension, loss of license or privileges, or any other disciplinary action for either participating in or refusing to participate in such compliance. RCWA § 70.245.190(1)(a)-(b).
- Are hospice programs required to report medical aid in dying as suicide under elder abuse statutes?
No. Nothing in this chapter authorizes an attending qualified medical provider, consulting qualified medical provider, or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia. Actions taken in accordance with this chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. State reports shall not refer to practice under this chapter as “suicide” or “assisted suicide.” Consistent with RCW 70.245.010 (7), (11), and (12), 70.245.020(1), 70.245.040(1)(k), 70.245.060, 70.245.070, 70.245.090, 70.245.120 (1) and (2), 70.245.160 (1) and (2), 70.245.170, 70.245.190(1) (a) and (d), and 70.245.200(2), state reports shall refer to practice under this chapter as obtaining and self-administering life-ending medication. RCWA § 70.245.180(1).
- Are hospice programs required to refer patients who ask about medical aid in dying for a psychiatric evaluation?
No. “If, in the opinion of either the attending qualified medical provider or the consulting qualified medical provider, a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, the qualified medical provider shall refer the patient for counseling. Medication to end a patient’s life in a humane and dignified manner shall not be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.” RCW § 70.245.060.