CMS Signals Renewed Focus on Advance Directives and Residents’ Rights to Determine End-of-Life Care

by Poyner Spruill LLP

By the time you read this article, if you are a skilled nursing facility (SNF), you will already be subject to new surveyor guidance from the Centers for Medicare and Medicaid Services (CMS) on advance directives and residents’ rights to determine care at the end of life. On September 27, 2012, CMS issued revised surveyor guidance in Appendix PP to the state operations manual, further interpreting F Tag 155, which is based on 42 Code of Federal Regulations section 483.10(b)(4). The revised guidelines became effective on November 30, 2012.

The regulation itself has not changed, nor has the Federal Patient Self-Determination Act on which the regulation and the surveyor guidance are based. However, in this revised guidance in Appendix PP, CMS reaffirms its commitment to 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.
CMS describes four key expectations of SNFs in the revised guidance:

  1. To establish and maintain policies and procedures governing the right of choice in end-of-life health care decision-making;
  2. To inform and educate residents, or their legal surrogate, about end-of-life choices and the facility’s policies regarding how residents exercise these rights;
  3. To help residents exercise these rights by creating advance directives (living wills, health care powers of attorney or other advance directives recognized by state law); and
  4. To incorporate residents’ choices into treatment, care and services, specifically including initial, ongoing and revised care planning as a resident’s health care status changes over time.

CMS also spells out the elements that must be addressed in each SNF’s policies and procedures on end-of-life care. They include:

  1. 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. We occasionally encounter providers who require a Do Not Resuscitate Order at admission. This is illegal.
  2. Providing residents an explanation of state law governing advance directives AND a summary of the facility’s policies and procedures in advance directives.
  3. Determining at admission and periodically thereafter if the resident has the decision-making capacity to make end-of-life choices. In North Carolina, this is defined by statute as the ability to make and communicate end-of-life health care choices. If the resident lacks this capacity, then the facility must have a system for identifying the person or persons who, under state law, can act for the resident. North Carolina has a “family decision tree” statute that answers this question, which we published as a chart in the July 2010 issue of Shorts. If you need a copy, please contact us. We recommend posting this chart in a conspicuous place where all staff has access to it.
  4. 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).
  5. 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.
  6. 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.
  7. Establishing mechanisms for documenting a resident’s end-of-life health care choices AND communicating them to all physicians, nurse practitioners, physician’s assistants and facility staff.
  8. 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 defines the normal survey sample for end-of-life issues as: 1) residents who have an advance directive or a condition where end of life planning is appropriate; 2) residents with medical orders related to life-sustaining care (i.e., care without which the residents would expire in a relatively short period of time); and 3) residents who have refused medical or surgical care.

The CMS guidance to surveyors also contains examples of deficiency categories applicable to violations of these expectations (i.e., immediate jeopardy, actual harm, etc.). For example, CMS states that immediate jeopardy exists where a resident with a 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 (again, please reference North Carolina’s statute that addresses this issue and our chart that provides a “decision tree” for understanding who the appropriate decision-maker is for a resident).

CMS gives 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, or a facility refusal to allow a resident to attend his son’s wedding, insisting that the resident remain in the facility for chest X-rays and blood work. 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 states 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.

Now, the good news. For North Carolina providers, if you have purchased and implemented the North Carolina Healthcare Facilities Association sample policies and procedures on advance directives, you should be in great shape. These sample policies were initially drafted for the association in the 1990s when North Carolina’s first advance directive laws were passed, and were updated for the association by Poyner Spruill in 2008 after advance directives laws were revised. We have trained on these sample policies for several years all over the state – if you train staff on them and follow them, you should be fully compliant with CMS’s revised surveyor guidance.

However, with CMS signaling a renewed focus on this issue, now is a great time to ensure your policies are up to date; your staff actually knows and utilizes them; and your physicians, NPs and PAs also understand them. CMS directs surveyors in the revised guidance to take a number of steps to measure compliance, including talking to residents and/or their surrogates; talking with physicians, NPs and PAs; and talking with staff to ensure that:

  1. Residents are informed of their right to make advance directives and are offered assistance in that process when requested;
  2. Residents are offered the chance to make or revise existing advance directives as their condition changes;
  3. ALL staff and ALL facility records reflect the presence of resident advance directives, especially including care plans; and
  4. ALL staff are aware of resident end-of-life choices, and care is consistent with those expressed choices

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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