Download ADVANCED DIRECTIVES 2011 - Arkansas Hospital Association

Advance Directive Update 2011
CMS and The Joint Commission
Requirements for Hospitals
Speaker
 Sue Dill Calloway RN, Esq.
CPHRM
 AD, BA, BSN, MSN, JD
 Medical Legal consultant
 5447 Fawnbrook Lane
 Dublin, Ohio 43017
 614 791-1468
 [email protected]
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Advance Directives
 Know your specific state law on advance directives
 Know the federal law on advance directives
 Know the Joint Commission standards on advance
directives
 Including the TJC Tracer
 Know the CMS hospital CoP on advance directives
 Know what to do if a patient shows up with a
visitation advance directive
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Types of Advance Directives
Living wills
Durable Power of Attorney (DPOA)
DNR
Organ donor card
Declaration of Mental Health Directive
Visitation advance directive
Declaration to dispose of body after death
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Case Law
Related to Advance Directives
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Overview of Law
 A mentally competent adult has the legal right to
refuse treatment even if that refusal would result
in their death
 Both TJC (Joint Commission) and CMS (Center
for Medicare and Medicaid Services) require that
hospitals honor the patient’s right to refuse
treatment
 However, it must be an educated right with
knowledge of risks and benefits
 Estimated that only 15-25% of patients have an
advance directive
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Three Ways a Guardian Makes a Decision
 Limited objective or substitute judgment where
guardian tries to makes same decision as patient
were able to make. Matter of Conroy, 486 A.2d
1209 (N.J. 1985) SC allowed life sustaining
treatment (NG tube) to be removed from 84 YO
incompetent patient
 Best interests test-pure-objective
 Subjective test-where clear and convincing
evidence that is what patient previously expressed
and wanted
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Matter of Quinlan
 This case and the Cruzan case helped to establish
the right to refuse life sustaining treatment,
including the right for non-competent patients
 In earlier cases, the court appointed a guardian to
assert the wishes of the unconscious patient
 Family and patient together would make decisions without
intervention of the court
 First case to mention PVS (permanent vegetative
state)
 Karen took an overdose and arrested at age 21
 348 A.2d 801 (N.J. Super Ct 1975)
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Matter of Quinlan
 Judge found she could never return to a cognitive
or sapient state
 Parents wanted her ventilator removed
 Karen quoted as saying she never wanted to be
kept alive by extraordinary means
 Found the right to privacy
 Court allowed removal of her ET tube
 Interestingly enough she lived nine more years dying
June 11, 1985 of pneumonia
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Nancy Beth Cruzan
 25 year old in single car accident
 Found 35 feet from car in ditch not breathing
 Without oxygen for 15-20 minutes
 Feeding tube inserted
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 Requested tube be removed after five years
($130,000 a year cost in state hospital)
 Spastic quadriplegic, contractures, fingers cut into
her wrists, CT scan severe irreversible brain
damage with brain degenerating, fluid in brain
where there is no more brain tissue
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Nancy Beth Cruzan
 Spastic quadriplegic, contractures, fingers cut into
her wrists, CT scan severe irreversible brain
damage with brain degenerating, fluid in brain
where there is no more brain tissue
 US Supreme Court held that patient’s right to
refuse medical treatment is protected by US
Constitution
 Right to refuse medical treatment is a liberty
interest protected by 14th amendment
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Nancy Beth Cruzan
 However, state’s interest in preserving life and
guarding against abuse of surrogate decision
maker’s powers allows state to regulate in this area
 Right to end life-sustaining treatment must be
established by clear and convincing evidence
 474 U.S, 261, 110 S. Ct. 2841 (1990)
 This is why it is important for every person to have
advance directives so that their wishes are known
and followed
 Patients may end up with a feeding tube in if in a
permanent comatose state so is this what they wanted?
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Matter of Theresa Schiavo
 Suffered cardiac arrest at age 27 from potassium
imbalance
 Was in PVS since Feb 1990
 After waiting for 6 years to recover her husband
petitioned court to remove feeding tube
 Individuals have the right to decide if they want to
be kept alive by artificial hydration and nutrition
 Her parents, Schindler family, fought for nine years
in court
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Matter of Theresa Schiavo
 Evidence supported in court that she had previously
stated that she did not want to live that way
 Court ordered removal of her feeding tube
 Feeding tube removed on March 18, 2005
 There was clear and convincing evidence that this
is what the patient wanted
 Remember a single piece of paper could have
prevented this controversy
 Leaving no written direction left her parents and
husband to argue her fate in the courts
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Matter of Theresa Schiavo
Autopsy Report
 Left: CT scan of normal brain
 Right: Schiavo's 2002 CT scan showing loss of
brain tissue. The black area is liquid, indicating
hydrocephalus ex vacuo. Shows extensive brain
damage. Brain half the weight of a normal brain.
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Linda Scheible vs Morse Geriatric Center
 Florida nursing home found negligent for failing to
honor resident’s advance directive for $150,000 in
2007
 Granddaughter brought the lawsuit
 Resident died at age 92
 Madeline Neuman was competent when she entered the
nursing home
 She completed a living will saying she did not want
CPR and foregoing any life prolonging care or
feeding tubings, surgery or respirators
 Doctor wrote a DNR order in her chart
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Linda Scheible vs Morse Geriatric Center
 When she became unresponsive the LTC facility
called paramedics
 They intubated here and did CPR and sent her to
the hospital
 Patient had history of seizures and Altzheimer’s
 Jurors felt the nursing home lacked procedures for
ensuring that the patient wishes would be followed
in the event the patient was unable to speak for her
or himself
 Did not have a good way to communicate patient was a
DNR
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Assisted Suicide Cases
 In 1996, two federal circuit cases of appeal struck
down laws prohibiting assisted suicide
 US Supreme Court overturned both cases
 No right of the patient to assisted suicide
 The Courts left it up to the states to determine
whether to prohibit physician assisted suicide
 Oregon voters approved Measure 16, Death with
Dignity Act, Injunction issued. Circuit Ct dismissed
challenge to law and SC declined to hear, law will
not be repealed since 60 percent wanted it
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Assisted Suicide Cases
 President Clinton signed into law a bill that prevents
federal government health care programs from
reimbursing the costs associated with physicianassisted suicide
 Signed on April 30, 1997
 Called The Assisted Suicide Funding Restriction Act
of 1997
 Available at Title 42, chapter 138, section 14401 at
http://www.law.cornell.edu/uscode/html/uscode42/u
sc_sec_42_00014401----000-.html
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Assisted Suicide Cases
 Oregon was first state to pass law to legalize
physician assisted suicide
 Voters approved it 1994 and affirmed it 1997
 Physician can prescribe medication to enhance
death, usually barbiturates
 Terminally ill patients with less than six months to
live
 Two physicians have to agree
 Only handful of patients have requested it since law
passed
 Since law written in 1997, 460 patients have died under terms of the law, most had terminal cancer
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http://www.oregon.gov/DHS/ph/pas/
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Last Oregon Report Assisted Suicide 09
 95 Prescriptions written for lethal medication in
2009
 53 patients took these medications
 55 doctors wrote the 95 prescriptions
 Most of the patients were white and well educated
(78%)
 Most have cancer and 91.5% were enrolled in
hospice programs
 http://oregon.gov/DHS/ph/pas/index.shtml and
accessed December 2010
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Washington State
 In 2009, Washington state passed a law
 Oregon and Washington only two states with voter approved
assisted suicide laws
 Montana had a court rule right to physician assisted suicide
 December 2009 Montana Supreme Court rules that the law protects
doctors from prosecution for helping terminally ill patients die
 Robert Baxter dies from complications related to lymphocytic
leukemia at age 76
 Death with dignity law and data again show not used very
often
 September 2009 article reported only 11 patients used the
prescribed drugs to end their lives in the first six months the
law took effect
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Washington v. Glucksberg
 Three patients suffering from terminal illness and
filed wanting the court to declare that they had a
right to assisted suicide to end their lives
 Jane Roe a retired 69 YO pediatrician who suffers
from metastatic cancer and has bed sores,
incontinence, poor appetite
 John Doe a 44 year artist dying of AIDS, grand mal
seizures, two bouts of pneumonia severe skin and
sinus infections, and 70 percent blind
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Washington v. Glucksberg
 James Poe a 69 YO retired sales representative
who suffers from emphysema and takes Morphine
regularly and wishes to commit suicide by taking
physician prescribed drugs
 Dr. Harold Glucksberg refused for fear of
prosecution
 Wanted physician assisted suicide
 US Supreme Court held patients asserted right to
assistance in committing suicide is NOT a
fundamental liberty interest protected by the US
Constitution
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Quill v. Vacco
 Three plaintiffs were suffering from terminal
illnesses
 Wanted physician assisted suicide
 All three died before decision of court was reached
from 7-20-94 to 12-15-94
 80 F.3d 716 (2nd Cir. 1996)
 US Supreme Ct decided this case and the
Washington case on same day
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Quill v. Vacco
 Difference between passive (letting die, taking off
ventilator) and active euthanasia (killing,
deliberately using lethal dose)
 Patient is dying from the disease but if he ingests
legal drugs prescribed by a physician he is killed by
the medication
 No legal right to assisted suicide
 However, the court leaves it up to the states to
decide if physicians can assist
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Dr. Kevorkian
 Assisted patients in committing suicide
 Michigan took away his license
 Represented by counsel he avoided conviction in
several prosecutions
 Defended himself and sentenced to 10-25 years
 People v. Kevorkian, 639 N.W.2d Nov 2001
(affirming second degree murder conviction)
 Cert denied., 537 U.S. 881 (Oct 7 2002)
 No right to euthanasia
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Hargett v Vitas
 Ground breaking action which alleges negligence in
informing a dying patient of end of life options of
palliative sedation
 In September of 2009 43 year old Michelle Hargett
Beebee, mother of 3, was diagnosed with advanced
pancreatic cancer
 Pain escalated quickly and referred to hospice care
 She entered the Vitas Hospice in November 2009 to
bring pain under control and have a peaceful death
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Hargett v Vitas
 Lawsuit states her final weeks she has terrible and
continuous pain
 Claims she was never informed about her pain
management options
 Despite receiving care where the California right to
know end of life option acts requires providers to
inform terminal patients of their end of life options
 Palliative sedation is the use of sedative medications to
relieve extreme suffering by making the patient unaware
and unconscious (as in a deep sleep) while the disease
takes its course, eventually leading to death. Medication is
increased until the patient is comfortable,
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Resources
 List of Legal Cases Involving Right to Die in the
United States at http://www.rbs2.com/rtd.pdf
 Physician assisted suicide website at
www.willamette.edu/wucl/pas
 Information on Schiavo case at
http://www6.miami.edu/ethics/schiavo/timeline.htm
and
http://abstractappeal.com/schiavo/infopage.html
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Federal Laws on Advance
Directive
Patient Self Determination Act or PSDA
Definition of Advance Directive
“Advance directive means a written
instrument, 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),
related to the provision of health care when
the individual is incapacitated.”
 Examples: living will, DPOA, visitation,
DNR, organ donor card, and mental health
declaration
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Patient Self Determination Act of 1990
 Purpose of the federal law (PSDA)
 To inform patients of their rights regarding
decisions toward their own medical care
 To ensure that these rights are communicated by
the health care provider
 Patients should give copies to their physician, hospital when
admitted and family members so they know their wishes
 To provide a written summary of their health care
decision making rights on admission
 These rights ensure that those of the patient dictate
their future care should they become incapacitated
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Patient Self Determination Act of 1990
42 USC Section 1395 (a)(1)(Q) and SSA 1866, Section
4206 (b)(1) of OBRA 90, 42 CFR 489.102
Applies to Medicare certified hospitals, skilled nursing
homes, home health, hospice, and HMO
Passed by Congress in 1990 to require above organizations
to give patients information on state laws regarding advance
directives such as living wills or DPOA
Purpose of law is to ensure patients are informed of their
right to make advance directives and based on principles of
informed consent
Law was effective December 1, 1991 and amended July 27,
1995 (FR Vol 60, June 23, 1995) and copy is available on
website1
1 http://www.findlaw.com/casecode/uscodes/
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Patient Self Determination Act of 1990
 Must provide written information to patients on their decision
making rights
 Provide written information to patients on organization’s
implementation of these rights
 Document in medical record whether patient has one
 Ensure compliance with requirements of state law on
advance directives
 Provide for education of staff concerning its P&P and
community education on advance directives
 Remember the CMS Hospital CoPs on patient rights which
discuss patient’s right to have advance directives followed
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Patient Self Determination Act of 1990
 Need written P&P regarding how the hospital or facility is
implementing each of their rights
 Including clear and precise limitation if the provider cannot
implement an AD on the basis of conscience
 At a minimum, need to clarify any differences between
institution wide (the hospital) and those raided by individual
physicians
 Identify state legal authority permitting such objections and
describe range of medical conditions affected by
conscientious objection
 Can’t discriminate against patient if they have or not
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Federal Laws
 Can get off internet copies of all federal laws at no
expense at www.thomas.gov or federal regulations
at www.regulations.gov
 Can also find copies of federal bills
 Another good resource is www.findlaw.com
 You can sign up to get the federal register sent to
your computer daily at
http://www.gpoaccess.gov/fr/index.html
 CFR is now free off the internet at
http://ecfr.gpoaccess.gov/ (title 42 is public health)
www.gpoaccess.gov/cfr/index.html
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Copies of Federal Regulations
www.regulations.gov/search/Regs/
home.html#home
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Source: www.nrc-pad.org
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CMS HOSPITAL CONDITIONS OF
PARTICIPATION (COPS) 2011
What Hospitals Need to Know about the CMS
provisions on advance directives
CMS Hospital CoP
 CMS hospital CoP effective in 1966 and amended
June 5, 2009 (Appendix A, Standards A) and
continued in 2011
 Has a section on patient rights which contains the
requirements for advance directives
 CAH hospitals have a separate CoP (Appendix W,
Standards C)
 CMS has a section on advance directives in the
hospital CoPs
 All manuals available on the CMS website1
1 www.cms.hhs.gov/manuals/downloads/som107_Appendicestoc.pdf
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Appendix A PPS Hospitals CMS CoP
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Surveyor Conducting Interviews
 CMS CoP also has information on advance
directives in the first section on introduction to the
survey process
 Page 18 directs the surveyor on topics for the
patient or family interview and includes the topic of
advance directives
 Page 19 provides directions to the surveyor during
the document review session and states to review
the medical record for evidence of advance
directives
 CMS has advance directives standards starting with tag 131
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Patient Rights A-0131
 Patient has a right to make informed decisions
regarding his or her care
 This includes the right to be informed of their
status and to request or refuse care
 A patient has the right to delegate decision making
of their care to another person
 If patient is unable to make a decision then the
hospital must consult the advance directives,
medical power of attorney or patient
representative
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Patient Rights A-0131
 The patient may provide guidance to their wishes in
the advance directives
 The patient may delegate decision making to
another in the medical power of attorney as
permitted by state law
 Relevant information should be provided to the
DPOA when the patient is incompetent
 If patient becomes competent then information
must now be provided to the patient
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Patient Rights A-0131
 The right to make informed decisions presumes the
patient has been provided information about their
health status, diagnosis, and prognosis
 Hospitals must assure that each patient or their
representative is given information about their
diagnosis and prognosis
Patient has a right to formulate advance directives
Right to have advance directives consulted when
unconscious or incapacitated
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Patient Rights 0132
Note rights as inpatient and outpatient AD
requirements of TJC
Have practitioners and staff provide care that is
consistent with these directives
 42 CFR 489.102 specifies the rights of the patient
as permitted by state law to formulate advance
directives
 Must disseminate its policies on advance directives
 In your policy should have clear statement of any
limitations such as conscience
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Advance Directives
At a minimum, clarify any difference between facility
wide conscience objections and those raised by
individual doctors
Identify the state legal authority permitting such
objection
Describe the medical conditions or procedures
affected by the conscience objection
You must provide written information to the patient
on their rights under state law
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Advance Directives
Document whether or not they have one
Both inpatients and outpatients have the same
rights but hospital not required to provide written
information on rights to outpatients
Not condition treatment on whether or not they have
one
Ensure compliance with state laws on AD and
inform patients they may file complaints with state
survey and certification agency (like the department
of health)
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Patient Rights Advance Directives A-0132
 Provide for education of staff and on P&P on
advance directives
 Provide community education and document
 Right to formulate advance directives includes right
to make psychiatric AD (PAD) as allowed by state
law
 PAD should be given respect and consideration as
traditional AD
 PAD may apply if subject to involuntary
commitment
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Survey Procedure A-0132
 Surveyor is instructed to review the medical record for
evidence of compliance with AD
 CMS has survey procedures which directs the surveyor what
to ask and what documents to look at
 If patient reported they have an AD, has a copy been placed
in the medical record?
 Is there evidence that the hospital provides written notice to
inpatients on their right to make advance directives?
 Surveyor is suppose to look at what education hospital has
done on AD
 Surveyor is to interview staff to determine their knowledge of
AD
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CMS Visitation Regulations
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Visitation Law in a Nutshell
 Require all hospitals that accept
Medicare or Medicaid
reimbursement
 To allow adult patients to
designate visitors
 Not legally related by marriage or
blood to the patient
 To be given the same visitation
privileges as an immediate family
member of the patient
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Visitation Rights for All Patients
 CMS issued proposed changes to the CAH and
PPS hospital conditions of participation (CoPs)
 Published in the June 28, 2010 Federal Register (FR) with
comments until August 27, 2010
 Had 7,600 comments but 6,300 were form letters
 CMS publishes the final rule in the November 18,
2010 FR
 Regulation effective January 18, 2011
 Applies to all hospitals that accept Medicare and Medicaid
reimbursement
 This includes all critical access hospitals
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Patient Visitation Right
 This rule revises the hospital CoPs to ensure
visitation rights of all patients including same sex
domestic partners
 Hospitals are required to have policies and
procedures (P&P) on this
 P&P must set forth any clinically necessary or
reasonable restrictions or limitations
 Hospitals will have to train all staff
 Hospitals will be required to give a written copy of this
right to all patients in advance of providing treatment
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Final Rule FR Effective January 18, 2011
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Visitation Rights for All Patients
 The new final rule implements the April 15, 2010
Presidential memo1
 The President gave HHS (Health and Human
Services) the task of requiring any hospital that
receives Medicare reimbursement to preserve the
rights of all patients to choose who can visit them
 Patients or their representative have a right to
visitation privileges that are no restrictive than those
for immediate family members
 1 http://www.whitehouse.gov/the-press-office/presidential-memorandum-hospital-visitation
 2 http://www.access.gpo.gov/su_docs/fedreg/a100628c.html (June 28, 2010 Federal Register)
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Visitation Rights for All Patients
 Memo was entitled “Respecting the Rights of
Hospital Patients to Receive Visitors and to
Designate Surrogate Decision Makers for Medical
Emergencies”
 President says there are few moments in our lives
that call for greater compassion and companionship
that when a loved one is admitted to the hospital
 A widow with no children is denied the support and
comfort of a good friend
 Members of religious organizations unable to make
medical decisions for them (can do DPOA)
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Final Language on Patient Visitation Rights
 Standard: Patient visitation rights
 A hospital must have written P&P regarding the
visitation rights of patients
 This includes setting forth any clinically necessary
 Or reasonable restriction or limitation that the
hospital may need to place on such rights
 And the reasons for the clinical restriction or
limitation
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Final Language on Patient Visitation Rights
 A hospital must meet the following 4 requirements:
1. Inform each patient (or support person, where
appropriate) of his or her visitation rights
 Including any clinical restriction or limitation on
such rights
 When he or she is informed of his or her other
rights under this section (previously mentioned)
 For CAH hospitals the last bullet is absent and it
says to do this in advance of furnishing patient care
 Note CAH do not have a pre-exisitng patient rights section
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Final Language on Patient Visitation Rights
2. Inform each patient (or support person, where
appropriate) of the right
 Subject to his or her consent
 To receive the visitors whom he or she
designates
 Including, but not limited to, a spouse, a domestic
partner (including a same sex domestic partner),
 Another family member, or a friend, and his or her
right to withdraw or deny such consent at any
time
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Final Language on Patient Visitation Rights
3. Not restrict, limit, or otherwise deny
visitation privileges on the basis of race,
color, national origin, religion, sex, gender
identity, sexual orientation, or disability
4. Ensure that all visitors enjoy full and equal
visitation privileges consistent with patient
preferences
So what does this mean??
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Patient Visitation Rights
 All hospitals would have to inform all patients of
their visitation rights in writing in advance of care
furnished
 This includes the right to decide who may and may
not visit them
 Some hospitals may give a one page sheet to each
patient upon admission
 Hospitals would want to amend their patient rights
statement to include this information
– Example: written patient rights given to patients on admission and
could have also brochure in admission packet
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Patient Visitation Rights
 Competent patients can verbally give this
information on admission
 There is no requirement that this has to be in writing
if a competent patient gives oral confirmation as to
who he or she would like to visit
 Some patients may sign a written patient visitation
advance directive
 Some patients may add a section to their advance
directive adding a section on who they would like to
visit or deny visitation
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Patient Visitation Rights
 CMS does suggest that this be documented in the
medical record for future reference
 Reading of the Federal Register helps to provide an
understanding of what it means and how to
implement it
 Federal Register (FR) summarizes the comments
and publishes a response
 CMS will eventually add this to the hospital CMS
interpretive guidelines
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Patient Visitation Rights
 Hospitals would need to have written
documentation of patient representatives such as
DPOA or healthcare proxies
– CMS changes name from representative to support
person
– Support person is broader term and could be family,
friend, or any individual who is there to support the
person during the course of the stay
– If patient is not competent then representative gets to
decide who may or may not visit the patient such as a
guardian, parent, or DPOA
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Visitation Rights Federal Register
 For example, if the patient is incompetent then the
guardian, parent, or DPOA steps into the shoes of
the patient
 So in these cases the authorized representative would
make the decision about visitation when patient is
incompetent
 Requires hospitals to have written P&P regarding
visitation rights of patients
 Must inform patients of any clinical restrictions or
limitations of these rights
 Including the right to withdraw consent at any time
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Patient Visitation Right Restrictions
 Can still have restrictions or limitation if based on a
clinically necessary or reasonable restrictions
 These must include these in your P&P
 CMS mention 3 broad examples of where hospitals
may want to impose restrictions
–When the patient is undergoing care interventions
–When there may be infection control issues
–When visitors may interfere with the care of other
patients
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Sample Visitation Authorization
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Joint Commission PatientCentered Communication
Standards
Visitation
Introduction
 Patient-Centered Communication standards were
approved in December 2009
 Surveyors will evaluate compliance with the standards
on January1, 2011
 However, findings will not affect the accreditation
decision
 Information will be use during this pilot phase to
prepare the field for implementation questions and
concerns
 Compliance in the accreditation decision will be no
earlier than January 2012
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http://www.jointcommission.org/patient
safety/hlc/
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TJC Patient-Centered Communication
 Joint Commission has standards in the following
four chapters with two in the Patient Rights chapter;
 Human Resources
– HR.01.02.01
 Provision of Care
– PC.02.01.21
 Patient Rights
– RI.01.01.01 and RI.01.01.03
 Record of Care
– RC.02.01.01
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RI.01.01.01
 Standard: Hospital respects, promotes, and protects
patient rights
 EP28 The hospital allows a family member or friend
to be with patient during the course of stay for
emotional support
 As long as does not infringe on the other patients’ rights
 Does not have to be the patient surrogate or legal
decision maker
 CMS has changes to the hospital CoP regarding visitation
rights
 Patients should be able to define who they want to visit
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So What’s in Your Policy?
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Joint Commission Tracer
Patient Rights includes addressing advance
directives
Patient Rights Tracer
 Staff discussion and observation on communication
between shifts and departments
 Education of patient needs with culture and
language diversity (see TJC Low Health Literacy
Site, under public policy reports on their website)
 Use of R&S (2008 CMS changes and July 1, 2009
TJC and continues in 2011)
 Process when patient refuses care
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Patient Rights Tracer
Surveyor should assess patient and family
understanding of the following:
 Rights including advance directives
 Process and right to register a complaint or
grievance (CMS has grievance standards)
 Patient safety and privacy of health information
94
TJC 2011 Advance Directive
Standards
What Hospitals Should Know
TJC 2011 Standards
TJC Definition (not called JCAHO anymore):
A document or documentation allowing a person to
give directions about future medical care or to
designate another person(s) to make medical
decisions if the individual loses decision-making
capacity
 Advance directives may include living wills, durable
powers of attorney, do-not-resuscitate (DNRs)
orders, right to die, or similar documents listed in
the Patient Self-Determination Act which express
the patient's preferences
96
TJC Advance Directive RI.01.05.01
 The hospital addresses patient decisions about care
and services received at end of life care
 There are 21 elements of performance
 Actually only 16 since two, three, seven, 14 and 18
do not apply to hospitals
 This standard does not have a rationale
 Standard especially important for patients to make
end of life decisions
 This standard was new in 2009 and amended in
2010 and continued in 2011
97
End of Life Decision
The hospital should address the wishes of
the patient relating to end-of-life decisions
P&P address advance directives and are
consistent with the federal and state law
P&P provide the framework for foregoing or
withdrawing life-sustaining resuscitation
services
Do you provide end of life education to staff?
98
TJC Advance Directive RI.01.05.01
EP1 Hospital has written P&P on advance
directives
 Need to include P&P on forgoing or withholding
life sustaining treatment
 And P&P on withholding resuscitation services
 Must in accordance with laws
EP4 Need to specify whether hospital will
honor AD in outpatient setting
 Need written policy on this
99
TJC Advance Directive RI.01.05.01
EP5 Hospital must implement its AD policies
EP6 Hospital provides patients with written
information about AD
 This includes foregoing or withdrawing life
sustaining treatment and withholding
resuscitation services
EP8 Hospital must provide patient with
information on admission if unable or
unwilling to comply with AD
100
TJC Advance Directive RI.01.05.01
EP9 Hospital must document if the patient
has or does not have an AD
EP10 Hospital refers patient for assistance in
drafting AD, upon request
EP11 Staff and LIPs involved in patient’s
care are aware of whether or not patient has
AD
EP12 Hospital honors patient’s right to
review and revise their AD
101
TJC Advance Directive RI.01.05.01
EP13 Hospital needs to honor AD in
accordance with law and regulation and the
hospital’s capabilities
EP15 Document patient wishes concerning
organ donation when they make their wishes
known to the hospital or as required by P&P
or laws and regulations
EP16 Must honor the patient’s wishes
concerning organ donation within limits of
hospital’s capabilities and laws
102
TJC Advance Directive RI.01.05.01
EP17 Access to care is not determined by
fact patient has an AD or doesn’t have one
EP19 The hospital must communicate its
policy upon request or when warranted by
the care provided if their P&P on AD in the
outpatient setting
EP20 Hospital refers patient to resources to
help them draft an AD in the outpatient
setting
103
TJC Advance Directive RI.01.05.01
 EP21 The hospital defines how it obtains and
documents permission to perform an autopsy
 This standard is for hospitals that use the Joint
Commission standard
 The VA and Shriners are TJC accredited but they
do not accept Medicare or Medicaid
reimbursement at this time so they do not have
to follow this standard
 This was added to the TJC standards because it is
a CMS CoP
104
Record of Care RC.02.01.01
In 2009, there was a new documentation
chapter
It is called Record of Care or RC
It has one section regarding advance
directives in 2011
Medical record must contain a copy of the
advance directive
105
Provision of Care PC.03.03.09
 The hospital must determine if the patient has a
behavioral health advance directive
 If so the hospital must inform the physician or the
LIP and staff who are taking care of the patient
 And also staff that participate in the use of R&S of
the directive and its content
 CMS has 50 pages of R&S standards and TJC
amended ten standards effective July 1, 2009 and
continue into 2011
106
107
Recommendation for Compliance
 Place a sticker on the front of the chart that lists the types of
advance directives and mark each one that the patient has
 Comply with standard so that all staff are notified patient has
an AD
 Have a policy and procedure in effect that is amended to
include these provisions
 Complete an advance directive form on every patient upon
admission, get copies on the chart!
 Ask the patient and document if they want any changes to
their advance directives
108
Recommendation for Compliance
Document review by one of your staff to make sure
the patient has not changed their mind
Add this as a check off box on your advance
directive form
Advance directives reviewed with patient or family
members
Policy needs to address what will happen when
patient goes to surgery
 May include information in packet for outpatients
as to your policy
109
List of State Law Advance Directives
Source: www.caringinfo.org/stateaddownload
110
CMS
 CMS has a standard in the surgery section, tag A0951, that requires a policy on DNR status
 Staff should be aware of their facility policy on DNR
in the OR and in the hospital setting
 Policy should consider position statement from
professional organizations
 Policy should reflect state regulations and case law
 For example in Ohio has a statute and rules on DNR
 Rules contain the substantive information on how
personnel should proceed
 Know your state laws (statutes and case law)
111
Position Statements
American College of Surgeons on Advance
Directives and DNR orders in the operating
room1
AORN has policy on perioperative care of
patients with DNR orders, automatically
suspending order during surgery undermines
patient’s right to self determination
Need to discuss and document issues with
patients whether to be continued in OR or
not or partially suspended
1 http://www.facs.org/fellows_info/statements/st-19.html
112
ASA Position Statement
American Society of Anesthesiologist “Ethical
Guidelines for the anesthesia care of patients
with do not resuscitate orders or other
directives that limit treatment1
Policies automatically suspending DNR
orders may not address patient’s rights to self
determination
Administration of anesthesia might involve
some practices seen as resuscitation in other
settings
1 www.asahq.org/publicationsAndServices/sgstoc.htm
2 http://asahq.org/For-Healthcare113
Professionals/Standards-Guidelines-and-Statements.aspx
114
Position
 Full attempt at resuscitation, limited attempts
such as chest compressions or defib or tracheal
intubation, limited attempt with regard to patient
goals and vision (anesthesiologists uses clinical
judgment in which ones to use in light of
patient’s goals)
 One website to access DNR position statements
of many organizations1
1 www.cspsteam.org/resuscitationplan/resuscitationplan.html
115
ASA Position Statements
American Society of Anesthesiologist
“Ethical Guidelines for the anesthesia care of
patients with do not resuscitate orders or
other directives that limit treatment1
Policies automatically suspending DNR
orders may not address patient’s rights to
self determination
Administration of anesthesia might involve
some practices seen as resuscitation in other
settings
1 http://www.asahq.org/publicationsAndServices/standards/09.html
116
ASA Position Statements and Guidelines
117
118
PACU Care ASPAN
Nurse should follow standards of post
anesthesia nursing practice
Position statements are available1
Also has position statement on
perianesthesia patient with DNR
1 http://www.aspan.org/PosStmts.htm
119
Position Statements
ACEP 'Do Not Attempt Resuscitation'
(DNAR) in the Out-of-Hospital Setting
on website1
American College of Surgeons on
Advance Directives and DNR orders in
the operating room on website2
1 http://www.acep.org/webportal/PracticeResources/PolicyStatements
2 http://www.facs.org/fellows_info/statements/st-19.html
120
American College of Surgeons
 Policies that lead either to the automatic
enforcement of all DNR orders and requests or to
disregarding or automatic cancellation of such
orders and requests during the operation and
recovery period may not sufficiently address a
patient's right to self-determination
 An institutional policy of automatic cancellation of the DNR
status in cases where a surgical procedure is to be carried
out removes the patient from appropriate participation in
decision making.
 Automatic enforcement without discussion and clarification
may lead to inappropriate perioperative and anesthetic
management.
121
122
Position Statements
AORN has policy on perioperative care of
patients with DNR orders, automatically
suspending order during surgery
undermines patient’s right to self
determination
Need to discuss and document issues
with patients whether to be continued in
OR or not or partially suspended
Source:
http://www.aorn.org/PracticeResources/AORNPositionStatements/Position_DoNotR
esuscitate/
123
124
Position Statements
ENA RESUSCITATIVE DECISIONS1
AMA based on Universal out-of-hospital DNR
systems, Opinion of the Council of Ethical
and Judicial Affairs, DNR Order, amendment
updated Nov 20052
AMA has model legislation on uniform DNR
laws
Some states have POLST or MOLST
1
http://www.ena.org/about/position/
2
http://www.ama-assn.org/ama1/pub/upload/mm/369/ceja_opinion_2_22.pdf
125
126
127
128
MOLST
To read more about POLST or MOLST
go to website1
POLST stands for physician orders for
life-sustaining treatment
Can see forms for New York, Oregon,
Washington, West Virginia, and
Wisconsin
1
www.polst.org
129
130
Miscellaneous
CMS and TJC Informed Consent and
Organ Donation Standards
Informed Consent
Must include your state law in your informed
consent process
Must include TJC RI.01.03.01 standards on
informed consent if you TJC accredited
If you accept Medicare or Medicaid and you
are a hospital you must comply with CMS
CoP section on consent in patient rights,
medical records (Tag 464) and Surgical
Services (Tag 955)
132
Organ Donation
You must also comply with the CMS
CoP provisions on organ donation
TJC has its organ donation standards
in the chapter on transplant safety
Need to be in compliance and ensure
one call rule on all deaths
133
CAH
 Tag 352 allows patients to formulate an advance
directive
 Page 163 has a long section discussing the federal
law requirements
 Includes requirement to give written information to
patients on advance directives
 To have a policy and procedure
 If patient not competent then surrogate decision
maker decides
 Document in MR if patient has any advance directives
134
The End
Are you up to the challenge?
Additional information on advance directives
for freestanding ambulatory surgery centers.
135
The End
Questions
 Sue Dill Calloway RN, Esq.
CPHRM
 AD, BA, BSN, MSN, JD
 President
 5447 Fawnbrook Lane
 Dublin, Ohio 43017
 614 791-1468
 [email protected]
136
Ambulatory Surgery Centers
(ASC)
Conditions for Coverage (CfC)
138
ASC Interpretive Guidelines
 CMS posted revisions on May 15, 2009 and
revised it December 30, 2009
 Revised the CfCs and changed the interpretive
guidelines
 Added survey procedures
 Renumbered the tag numbers and 167 pages
which include infection control surveyor worksheet
(Q tag numbers 001-267)
 Available on CMS website1
1 http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLetter09_37.pdf
139
140
Conditions for Coverage (CfC)
All CMS manuals found at website1
Appendix L in the State Operations
Manual (not updated yet)
Section 1832 of SSA ASC must meet
quality and safety standards
1 http://www.cms.hhs.gov/manuals/downloads/som107_Appendicestoc.pdf
141
Advance Directives 224
 Must provide the patient with information on P&Ps
on advance directives (living wills, DPOA, DNR,
mental health declaration, etc.)
 If requested, must provide a copy of the official
state advance directive forms
 Must inform the patient of the right to make
informed decisions and educate staff about P&P
 Must document in chart whether or not patient has
an advance directive
142
Advance Directives
Must provide information on advance
directives in advance of the day of the
procedure unless referral made on same
day rule
Provide patients with information on
advance directives, description of state
health and safety laws, if state form, for
advance directives and their right to make
informed decisions
Include any limitations
143
http://www.abanet.o
rg/publiced/practical
/directive_whatis.ht
ml
144
http://www.abane
t.org/aging/toolkit
/home.html
145
Advance Directive Registries
 There are companies that will take a patient’s
advance directives and make it available when it is
needed 24 hours a day
 These companies charge a fee and usually fax a copy to
the hospitals
 Some are no longer in business when hospitals have tried
to access the patient’s advance directives
 Some hospitals have established their own advance
directive registry
 Free service and great for hospital to access these when
a patient is admitted
146
147
All 50 States Forms
http://uslwr.com
/formslist.shtm
148
Assess to All 50 States AD Forms
149
http://www.cancer.gov/cancertopics/facts
heet/support/advance-directives
150