|
Section 1 - Advanced Directives Law
Federal and State Law on
Advance Directives
A federal law enacted in 1991, the Patient Self-Determination Act
(PSDA), requires health care institutions certified by Medicare
and/or Medicaid to take certain actions to notify all adult patients
and the community of their right to accept or refuse medical care.
To receive reimbursement through the Medicare and Medicaid programs,
organizations must comply with the PSDA.
Specifically, the PSDA requires providers to inform patients of
their rights, under state law, to make decisions about their medical
care and the right to formulate advance directives.
In Washington State, an individual's right to control decisions
involving their health care and to make an advance directive is
codified as the Natural Death Act in chapter 70.122 of the Revised
Code of Washington.
The PSDA defines an advance directive as a "written instruction,
such as a living will or durable power of attorney for health care,
recognized under State law, relating to the provision of health
care when the individual is incapacitated." Washington State
uses both forms of advance directives - a health care directive
(also known as a living will) and a durable power of attorney for
health care.
To ensure compliance with the PSDA, hospitals, including rural
primary care hospitals, nursing facilities, providers of home health
care, health maintenance organizations, competitive medical plans
and hospice programs certified by Medicare and/or Medicaid must:
- maintain written policies and procedures on advance directives
with respect to all adult individuals receiving medical care by
or through the provider or organization;
- provide written information to each such individual concerning:
the individual's rights under state law (whether statutory or
as recognized by the state's courts) to make decisions concerning
medical care, including the right to accept or refuse medical
or surgical treatment; the right to formulate advance directives;
and the hospital's policies respecting the implementation of such
rights;
- document in the individual's medical record whether or not the
person has executed an advance directive;
- not condition the provision of care or otherwise discriminate
against an individual based upon whether or not the individual
has executed an advance directive;
- ensure their written policies on advance directives include
a clear and precise statement of limitation if the provider cannot
implement an advance directive on the basis of conscience, including
the legal authority for such objection (the Natural Death Act)
and whether the objection is institution-wide or may be raised
by an individual physician.
- inform individuals that complaints concerning the advance directives
requirements may be filed with the state survey and certification
agency;
- ensure that the facility complies with state law concerning
advance directives;
- educate staff on hospital's policies and procedures concerning
advance directives; and
- provide for community education. The educational materials must
inform the public of their rights under state law to make decisions
about their medical care, the right to formulate an advance directive,
and the hospital's implementation policies concerning an individual's
advance directive.
The written information concerning advance directives must be
provided to an adult individual:
- by hospitals, at the time of inpatient admission;
- by nursing facilities, at the time of admission;
- by home health care or personal care services, in advance of
the individual coming under the care of the provider;
- by hospices, at the time of initial receipt of hospice care;
and
- by HMOs, at the time of enrollment.
If an individual is incapacitated at the time of admission or is
otherwise unable to articulate whether or not he or she has executed
an advance directive, information about advance directives may be
given to an individuals' family or surrogate.
The law also specifies that the Health and Human Services (HHS)
Secretary must implement a national campaign to inform the public
about advance directives; develop and approve nationwide information
materials to be distributed by providers; and assist the states
in their efforts to develop state-specific documents. The HHS Secretary
is also required to mail information to Social Security recipients
and to add a page about advance directives to the Medicare handbook.
The Federal and State regulations implementing the PSDA, along
with other relevant state statutes and regulations can be found
in section three.
Medicare and Medicaid Conditions
of Participation for Hospitals
Medicare and Medicaid Conditions of Participation for hospitals
are the requirements hospitals must meet to participate in the Medicare
and Medicaid programs. Conditions of Participation are intended
to protect patient health and safety and to assure that high quality
care is provided.
These requirements apply to all Medicare or Medicaid participating
hospitals including, short-term, psychiatric, rehabilitation, long-term,
children's and alcohol-drug, whether or not they are accredited.
This rule does not apply to Critical Access Hospitals (see Social
Security Act Section 1861 (e)).
The Conditions of Participation for advance directives have been
in effect since 1991 and are largely a product of the Patient Self-Determination
Act (PSDA). Therefore, their requirements mirror those of the PSDA
outlined in the Federal and State Law on Advance Directives section
above and will not be duplicated here.
In 1999, a new "Patients' Rights" Conditions of Participation
for hospitals addressing advance directives and end of life care
became effective.
The "Patients' Rights" Conditions of Participation
relevant to end of life care and advance directives state that:
- patients have the right to participate in the development and
implementation of their plan of care;
- patients (or their representatives) have the right to make informed
decisions regarding their care, know their health status, be involved
in their care planning and treatment and be able to refuse or
request treatments;
- patients have the right to formulate advance directives and
to have hospital staff and practitioners comply with these directives
(in accordance with the conditions of participation on advance
directives).
The Centers for Medicare and Medicaid (formerly known as the Health
Care Financing Administration) issued interpretive guidelines regarding
the Conditions of Participation for patients' rights that stressed
whenever possible the hospital should inform a patient of her or
his rights in a language the patient understands. The interpretive
guidelines also state the hospital must be sensitive to the communication
needs of its patients and comply with Civil Rights laws that assure
it will provide interpretation for certain individuals who speak
a language other than English, use alternative communication techniques
or aides for those who are deaf or blind, or take other steps as
needed to effectively communicate with the patient.
Joint Commission on Accreditation
of Healthcare Organizations
The Joint Commission on Accreditation of Healthcare Organizations'
(JCAHO) 2000-01 Accreditation Manual for Hospitals addresses advance
directives, surrogacy standards, end of life care and new pain management
standards. Any JCAHO-accredited-facility, including hospitals, outpatient
clinics and nursing homes must adhere to JCAHO standards in order
to retain its accreditation.
JCAHO addresses advance directives in its Patient Rights and Management
of Information Standards. The hospital must "determine whether
a patient has or wishes to make advance directives" and "provide
assistance to patients who do not have an advance directive but
wish to formulate one." (RI 1.2.4) Evidence of known advance
directives is to be included in a patient's medical record. (IM
7.2) In addition, the American Hospital Association recommends hospitals
advise patients that hospital personnel cannot implement an advance
directive unless they have a copy.
Under JCAHO standards effective January 1, 2001, hospitals must
implement new accreditation standards for monitoring and treating
pain. While the standards are included in the 2000-01 manuals, hospital
compliance is rated beginning 2001.
The following is a list of section numbers and titles from the
JCAHO manual that address advance directives, pain management, surrogacy
and end of life care:
Advance Directives
RI.1.2.4
The hospital addresses advance directives.
IM.7.1 and IM.7.2
The hospital initiates and maintains a medical record for every
individual assessed or treated; the medical record contains sufficient
information to identify the patient, support the diagnosis, justify
the treatment, document the course and results, and promote continuity
of care (including evidence of known advance directives).
Pain Management
RI.1.2.8
Patients have the right to appropriate assessment and management
of pain.
PE.1.4
Pain is assessed in all patients.
TX.3.3
Policies and procedures support safe medication prescription and
ordering (including appropriate use of pain management techniques).
TX.5.4
The patient is monitored during the post-procedure period (including
pain intensity and quality).
PF.1.7
Patients are taught that pain management is a part of treatment.
PF.3.4
Patients are educated about pain and managing pain as part of treatment,
as appropriate.
CC.6.1
The discharge process provides for continuing care based upon the
patient's assessed needs at the time of discharge (including pain
management).
PI.3.1
The organization collects data to monitor its performance (including
effectiveness of pain management).
Surrogate Decision-Making
RI.1.2.2.
The family participates in care decisions.
End of Life Care
RI.1.2.3
Patients are involved in resolving dilemmas about care decisions.
RI.1.2.5
The hospital addresses withholding resuscitative services.
RI.1.2.6
The hospital addresses forgoing or withdrawing life-sustaining treatment.
RI.1.2.7.
The health care organization addresses care at the end of life.
RI.1.3.5
The hospital demonstrates respect for the following patient needs:
pastoral care and other spiritual services.
RI.2
The hospital implements policies and procedures, developed with
the medical staff's participation, for the procuring and donation
of organs and other tissues.
H.R.6.1
The hospital ensures that a patient's care will not be negatively
affected if the hospital grants a staff member's request not to
participate in an aspect of patient care.
HR.6.2
Policies and procedures specify those aspects of patient care that
might conflict with staff members' cultural values or religious
beliefs.
Regulating Nursing Homes
in Washington
Washington state has regulations specifically applicable to nursing
homes. Nursing homes must adhere to these requirements in addition
to the federal and state law on advance directives outlined above.
WAC 388-97-065, entitled "Advance Directives," outlines
requirements for nursing homes similar to those under the Patient
Self-Determination Act (PSDA). The term "advance directive"
in this chapter refers to a durable power of attorney for health
care, a health care directive, a limited or restricted treatment
order, and a code/no code order.
Similar to the PSDA requirements, under WAC 388-97-065, a nursing
home must:
- inquire whether a resident has an advance directive and the
nature of the directive;
- document in the clinical record whether or not the resident
has an advance directive;
- not require that the resident have an advance directive;
- inform the resident in writing and orally at the time of admission
and as necessary thereafter, of the resident's right to make health
care decisions and the nursing home policies and procedures concerning
implementation of advance directives;
- review the resident's advance directive at the resident's request,
when the resident's condition warrants review and when there is
a change in condition.
If a resident's advance directive is in conflict with the nursing
home policies and procedures (which must be consistent with state
and federal law), WAC 388-97-065 requires the nursing home to inform
the resident of the procedure or policy that would preclude the
home from implementing the resident's advance directive. The nursing
home should meet with the resident and discuss this conflict and
implement a plan to carry out the resident's wishes to the fullest
extent possible.
In addition to advance directives, the regulations pertaining to
nursing homes cover informed consent, patient rights, and guardianship.
Nursing home regulations cover-ing these topics can be found in
the following sections of the Washington Administrative Code:
- WAC 388-97-051, Residents Rights
- WAC 388-97-052, Free Choice
- WAC 388-97-055, Resident Decision Making
- WAC 388-97-060, Informed Consent
- WAC 388-97-065, Advance Directives
- WAC 388-97-07005, Notice of Rights and Services
These regulations are reprinted in section three.
Questions & Answers
Regarding the Patient Self-Determination Act (PSDA)
The information below has been extracted from the comment and answer
section of the PSDA regulations, which is included in section three
of this manual.
Q: If an individual is admitted to the hospital
incapacitated, must the hospital meet the PSDA requirement that
it give each individual admitted to the hospital written information
about advance directives?
A: If an individual is incapacitated
at the time of admission and is unable to receive information or
articulate whether or not she or he has an advance directive, the
facility should give advance directive information to the patient's
family or surrogate to the extent that it gives other materials
about policies and procedures to an incapacitated person's family,
surrogate, or other concerned person in compliance with state law.
Q: When an individual is first admitted as
an inpatient to a hospital and later transferred to a nursing home,
are both facilities responsible for providing information on advance
directives to the individual?
A: Yes, both the hospital and
the nursing home would be required to provide information on advance
directives to the individual. The hospital discharge planner may
provide the information on behalf of the nursing home, including
the nursing home's policies regarding advance directives, in the
course of coordinating the transfer, but the nursing home would
still be responsible for ensuring the individual received the information
and to mark in the individual's medical record whether or not she
or he has an advance directive.
Q: Are individuals required to execute an
advance directive?
A: No. In fact, the PSDA specifically
prohibits providers from conditioning care on whether or not an
individual has executed an advance directive. The regulations make
clear that the PSDA's main intent is to ensure patients receive
information about the right to accept or refuse medical or surgical
treatment and about the right to formulate an advance directive.
Q: What constitutes minimally sufficient educational
efforts in meeting the PSDA's community education requirements?
A: The PSDA allows great flexibility
in the level of community education it requires. At a minimum, a
provider must be able to document its community education efforts.
For example, photocopying a brochure or pamphlet that meets the
community education requirements and was distributed to the public
may be sufficient to show the community education requirement was
met. Community education does not necessarily require the distribution
of written materials and may be carried out in a variety of formats
at the provider's discretion (workshops, seminars, etc.).
Q: May a provider exempt itself from the community
education requirement based on conscience?
A: No. A provider must meet
it obligation to provide community education on advance directives.
Under state law, a provider may conscientiously object to implementing
an advance directive. However, a provider's conscientious objection
must be included in the provider's policy and mentioned in both
its community education materials and the materials distributed
to individuals upon their admission to the facility.
next page ›››
|