Geriatric Nursing 35 (2014) 308e309

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Legal Column

Howard L. Sollins

Donna J. Senft

Susan A. Turner

Update on advance directives Susan A. Turner, JD Ober/Kaler’s Health Law Practice Group, USA

Numerous studies have suggested that the care patients receive at the end of their lives is often not consistent with their preferences. In addition, despite a federal law that requires that patients be given written notice on admission to certain health care institutions (such as hospitals, nursing facilities, hospices, and home health agencies), communication between patients and providers about end-of-life issues is often less than optimum, and advance directive completion and documentation of health care proxies and preferences for (or against) life-sustaining treatment often similarly could be improved. Some studies reveal that only 19 percent of cancer patients admitted to hospitals had documentation of an advance directive or a surrogate decision-maker in the medical record. Similarly, some data show that less than 7% of patients who received mechanical ventilation had documentation of preferences regarding mechanical ventilation or documentation of why this information was unavailable. Other research has found that a majority of physicians whose patients had advance directives were not aware of them, that having an advance directive did not increase medical record documentation of patient preferences, and that advance directives were often not used in medical care. On the other hand, some studies have shown that patients with advance directives or related documents are more likely to receive care consistent with their preferences (98% of the time for resuscitation and 94% overall). A new study suggests that when patients’ end-oflife preferences are formally documented and entered as instructions to their care providers in their medical record, the patients’ wishes are more likely to be honored. Congress passed the Patient Self-Determination Act almost twenty-five years ago, a law that requires that patients be given written notice upon admission to a variety of health care institutions (such as hospitals, home health agencies, hospices and nursing

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facilities) of their rights to make advance health care decisions and the policies regarding the facility’s obligations to carry out those directives. Advance directives can help document patients’ wishes about life-sustaining treatment (i.e., the living will), choice of a surrogate decision-maker (i.e., the durable power of attorney), or both. Advance directives memorialize the communication between a patient e at a time when she is able to express her wishes clearly and competently e and her family (or decision-making surrogate) and her health care providers, so that if a time comes when the patient cannot direct her own care, her loved ones and care providers can nonetheless act for her, knowing what she would have wanted to be done e or not done e in a given circumstance. The Centers for Medicare & Medicaid Services (CMS) has issued regulations and survey guidance to providers, emphasizing the importance of resident choice in end-of-life care and its direction to surveyors to assess providers’ compliance with that right in annual recertification and complaint surveys. Recently, in an effort to make clear to providers how important compliance with the advance directive rules are, CMS issued guidance that included four key expectations of health care providers related to advance directives policies and procedures:  To establish and maintain policies and procedures governing the right of choice in end-of-life health care decision-making;  To inform and educate patients and residents, or their legal surrogate, about end-of-life choices and the facility’s policies regarding how residents exercise these rights;  To help patients and residents exercise these rights by creating advance directives (living wills, health care powers of attorney or other advance directives recognized by state law); and  To incorporate patients’ and residents’ choices into treatment, care and services, specifically including initial, ongoing and revised care planning as a patient’s or resident’s health care status changes over time.

S.A. Turner / Geriatric Nursing 35 (2014) 308e309

CMS’s guidance also spelled out the elements that must be addressed in each facility’s policies and procedures on end-of-life care. They include:  Determining at admission if the resident has an advance care directive and, if not, whether he or she wishes to create one. Note, a facility may not require an advance directive or condition care on the presence or absence of one.  Providing residents with an explanation of state law governing advance directives, as well as a summary of the facility’s policies and procedures on advance directives.  Determining at admission and periodically thereafter if the resident has the decision-making capacity to make end-of-life choices.  Defining and clarifying a resident’s medical condition and explaining that condition to the resident or legal surrogate as appropriate (i.e., making sure the resident understands when he or she is approaching an end-of-life situation and the choices for care that are available).  Incorporating a resident’s choices into his or her care plan and ensuring that those care plan directions are reflected in all physicians’ orders, medical records and staff instructions.  Reassessing the resident’s choices when there is a significant change of physical or mental condition to ensure that choices previously expressed are still valid in light of the resident’s condition.  Establishing mechanisms for documenting a resident’s end-oflife health care choices as well as communicating them to all physicians, nurse practitioners, physician’s assistants and facility staff.  Identifying and dealing with situations where facility staff and/or treating health care professionals (doctors, NPs or PAs) feel, for whatever reason, that they cannot accommodate a resident’s expressed end-of-life choices. CMS has made it very clear that failure to honor a patient’s advance directive is not only a regulatory violation that will result in a deficiency citation during a survey, but that often the failure to honor an advance directive may be considered to be an immediate jeopardy violation. For example, CMS has stated that immediate jeopardy may be cited where a resident with a Do Not Resucitate


(DNR) order in his or her medical record was resuscitated, or where a resident was hospitalized contrary to wishes expressed in a valid living will or health care power of attorney, or where a resident received treatment based on the consent of an individual who was not the appropriate surrogate under state law. CMS provided as an example of actual harm that is not immediate jeopardy (the “G, H and I” level citations) a facility failure to identify medical orders that detailed a resident’s wishes to forgo lab work, IV antibiotic treatment and IV hydration for her seventh episode of aspiration pneumonia. A level 2 harm outcome (no actual harm with a potential for more than minimal harm) would occur, for example, when a facility failed to inform a resident of her right to make an advance directive, but no negative outcome occurred (i.e., no end-of-life decision was made or required, but it could have been). CMS also stated that the failure to comply with these requirements can never be a level 1 harm situation (no more than minimal harm) because by definition a resident has been denied rights established under federal law, court decisions and CMS requirements. To determine facility compliance, CMS directs surveyors to take a number of steps, including talking to residents and/or their surrogates; talking with physicians, NPs and PAs; and talking with staff to ensure that:  Residents are informed of their right to make advance directives and are offered assistance in that process when requested;  Residents are offered the chance to make or revise existing advance directives as their condition changes;  All staff and all facility records reflect the presence of resident advance directives, especially including care plans; and  All staff are aware of resident end-of-life choices, and care is consistent with those expressed choices. Facilities and care providers are encouraged to review their advance directive policies and procedures, and verify that all staff are appropriately educated and trained on implementing these policies and procedures. Adequate advance directive policies are essential not only for facility compliance with state and federal laws and regulations, but as studies have shown, are effective in ensuring patient choices regarding end of life care are more consistently honored.

Update on advance directives.

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