With multiple updates and revisions to the State Operations Manual in November, one of the areas that skilled nursing facilities should be mindful of when it comes to to compliance are those related to Advance Directives and the residents’ rights as they relate to medical treatment.
Per the Manual Updates:
(Rev. 127, Issued: 11-26-14, Effective: 11-26-14, Implementation: 11-26-14)
§483.10(b)(4) – The resident has the right to refuse treatment, to refuse to participate in experimental research, and to formulate an advance directive as specified in paragraph (8) of this section.
§483.10(b)(8) – The facility must comply with the requirements specified in subpart I of part 489 of this chapter relating to maintaining written policies and procedures regarding advance directives. These requirements include provisions to inform and provide written information to all adult residents concerning the right to accept or refuse medical or surgical treatment and, at the individual’s option, formulate an advance directive. This includes a written description of the facility’s policies to implement advance directives and applicable State law.
CMS has made it clear that facilities are responsible for ensuring policies and procedures are in place to protect all resident rights with special attention paid to Advance Directives and that those policies and procedures are enforced. The manual update further provides guidance in relation to how these requirements can be met:
- Establishing and maintaining policies and procedures regarding these rights
- Informing and educating the resident about these rights and the facility’s policies regarding exercising these rights
- Helping the resident to exercise these rights
- Incorporating the resident’s choices regarding these rights into treatment, care and services
- “Advance care planning” is a process used to identify and update the resident’s preferences regarding care and treatment at a future time including a situation in which the resident subsequently lacks capacity to do so. For example, when life-sustaining treatments are a potential option for care and the resident is unable to make his or her choices known.
- “Advance directive” means, according to 42 C.F.R. §489.100, a written instruction, such as a living will or durable power of attorney for health care, recognized under State law (whether statutory or as recognized by the courts of the State), relating to the provision of health care when the individual is incapacitated. Some States also recognize a documented oral instruction.
- “Cardiopulmonary resuscitation (CPR)” refers to any medical intervention used to restore circulatory and/or respiratory function that has ceased.
- “Durable Power of Attorney for Health Care” (a.k.a. “Medical Power of Attorney”) is a document delegating authority to an agent to make health care decisions in case the individual delegating that authority subsequently becomes incapacitated.
- “Experimental research” refers to the development, testing and use of a clinical treatment, such as an investigational drug or therapy that has not yet been approved by the FDA or medical community as effective and conforming to accepted medical practice.
- “Health care decision-making” refers to consent, refusal to consent, or withdrawal of consent to health care, treatment, service, or a procedure to maintain, diagnose, or treat an individual’s physical or mental condition.
- “Health care decision-making capacity” refers to possessing the ability (as defined by State law) to make decisions regarding health care and related treatment choices.
- “Investigational or experimental drugs” refer to new drugs that have not yet been approved by the FDA or approved drugs that have not yet been approved for a new use, and are in the process of being tested for safety and effectiveness.
- “Life-sustaining treatment” is treatment that, based on reasonable medical judgment, sustains an individual’s life and without it the individual will die. The term includes both life-sustaining medications and interventions (e.g. mechanical ventilation, kidney dialysis, and artificial hydration and nutrition). The term does not include the administration of pain medication or other pain management interventions, the performance of a medical procedure related to enhancing comfort, or any other medical care provided to alleviate a resident’s pain.
- “Legal representative” (e.g., “Agent,” “Attorney in fact,” “Proxy,” “Substitute decision-maker,” “Surrogate decision-maker”) is a person designated and authorized by an advance directive or State law to make a treatment decision for another person in the event the other person becomes unable to make necessary health care decisions.
- “Treatment” refers to interventions provided to maintain or restore health and well-being, improve functional level, or relieve symptoms.
With advances in the medical field and recent judicial cases related to the removal of life sustaining treatment, facilities must be mindful of the fact that the traditional way of making health care decisions may no longer be appropriate.
The Federal Patient Self - Determination Act contained in Public Law 101-508 is the authority on an individual’s rights and facility responsibilities related to Advance Directives. The right of an individual to direct his or her own medical treatment, including withholding or withdrawing life-sustaining treatment, is grounded in common law (judge-made law), constitutional law, statutory law (law made by legislatures) and regulatory mandates governing care provided by facilities.
The First Step: Developing Policies and Procedures
The facility is required to establish, maintain, and implement written policies and procedures regarding the residents’ right to formulate an advance directive, refuse medical or surgical treatment and right to refuse to participate in experimental research.
The facility is responsible to ensure the following areas are detailed in the Policy and Procedure:
- It is imperative that, on admission, the facility determine if the resident has an advance directive and the type – for example, DNR, Health Care Proxy, Living Will or POLST – and, if not, determine what the residents’ wishes are related to completing an advance directive. NOTE: A resident is not required to complete any type of advanced directives if they do not wish to.
- Include periodic assessment of the resident for decision-making capacity in order to determine if the health care agent or legal representative if the resident should be activated if it is determined that the resident does not to have decision-making capacity, typically done with each Comprehensive MDS and Care Plan review.
- Include routine review of the residents’ wishes as they relate to Advanced Directives and make adjustments as indicated, typically done with each Comprehensive MDS and Care Plan review.
- The policy should also include how the primary decision-maker (e.g., assessing the resident’s decision-making capacity) will be identified and how the facility will arrange for an appropriate legal representative for the resident assessed as unable to make relevant health care decisions.
- Define and clarify medical issues and how the information will be presented to the resident or his/her legal representative.
- Identify situations where health care decision-making is needed, such as a significant decline or improvement in the resident's condition and how residents’ wishes will be addressed at those times.
- Establish how documentation and communication of the resident's choices to the interdisciplinary team will be completed.
- Identify the process (as provided by State law) for handling situations in which the facility and/or physician do not believe that they can provide care in accordance with the resident’s advance directives or other wishes on the basis of conscience (per manual update).
The Second Step: Ensuring Staff Know the Policy and Procedure and Policy Enforcement
Per the State Operations Manual, the facility is responsible for ensuring that all facility staff follow policies and procedures.
Education is recommended at the time of hire and at least annually, with all facility staff on all policies and procedures related to Advance Directives. It is also recommended that staff members are tested on their knowledge of these policies based on their discipline specific roles.
The facility is required (by 42 C.F.R. § 489.102 Requirements for Providers) to provide, at the time of a resident’s admission, written information concerning the resident’s rights to make decisions concerning medical care, including the right to refuse medical or surgical treatment, decline to participate in experimental research and the right to formulate advance directives. The resident must also receive a written description of the facility’s policies that govern the exercise of these rights.
The Final Steps: Educating the Resident and Care Plan Development
In order for a resident to exercise his or her right to make knowledgeable choices about care and treatment or to decline treatment, the primary care provider and facility staff should provide information (in a language and terminology that the resident understands) to the resident and/or his/her legal representative regarding the resident’s health status, treatment options, and expected outcomes. Whether or not the resident chooses to execute an advance directive, discussion and documentation of the resident's choices regarding future health care should take place during the development of the initial comprehensive assessment and care plan and periodically thereafter. The process of having such discussions, regardless of when they occur, is sometimes referred to as “advance care planning.”
This process is not a one-time review, but rather ongoing and allows for the resident, family and others on the resident’s interdisciplinary team, the opportunity, on a regular basis, to review the resident’s goals and wishes as the resident’s medical condition changes. This process can be especially important as the resident reaches the time when he or she is unable to make decisions.
Facilities are encouraged to review the details of all the updates related to F155 as there are also clarifications related to:
- Right to refuse medical or surgical treatment; and
- Right to decline to participate in experimental research.
If you need help with understanding or interpreting theses updates, please click here to contact Harmony Healthcare International or call us at (800) 530-4413.