Advance Directive Update 2011 CMS and The Joint Commission Requirements for Hospitals.

Advance Directive Update 2011

CMS and The Joint Commission Requirements for Hospitals

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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]

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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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

Types of Advance Directives

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Case Law

Related to Advance Directives

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Overview of LawA 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

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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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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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 chart17

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 physician-assisted 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/usc_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 cancer22

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http://www.oregon.gov/DHS/ph/pas/

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

“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

Definition of Advance Directive

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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 199042 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 1990Must 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)

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www.gpoaccess.gov/cfr/index.html

Copies of Federal Regulations

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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 13158

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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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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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,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 hospitals70

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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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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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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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 packet79


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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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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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 Patient-Centered Communication

StandardsVisitation

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/patientsafety/hlc/

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 visit90

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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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

Patient Rights Tracer

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TJC 2011 Advance Directive Standards

What Hospitals Should Know

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

TJC 2011 Standards

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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

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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?

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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

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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

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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

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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

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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

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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

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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

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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

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Recommendation for CompliancePlace 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

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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

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Source: www.caringinfo.org/stateaddownload

List of State Law Advance Directives

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CMS CMS has a standard in the surgery section, tag A-

0951, 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

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

Position Statements

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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-Healthcare-Professionals/Standards-Guidelines-and-Statements.aspx

ASA Position Statement

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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

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ASA Position StatementsAmerican 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

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ASA Position Statements and Guidelines

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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/PolicyStatements2 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_DoNotResuscitate/

123

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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.pdf125

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127

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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.org129

130

Miscellaneous

CMS and TJC Informed Consent and Organ Donation Standards

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)

Informed Consent

132

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

Organ Donation

133

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

CAH

134

The End

Are you up to the challenge?

Additional information on advance directives for freestanding ambulatory surgery centers.

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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]

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

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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 limitations143

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http://www.abanet.org/publiced/practical/directive_whatis.ht

ml

145

http://www.abanet.org/

aging/toolkit/home.html

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

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147

All 50 States Forms

148

http://uslwr.com/

formslist.shtm

Assess to All 50 States AD Forms

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150

http://www.cancer.gov/cancertopics/factsheet/support/advance-directives

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Advance Directive Update 2011 CMS and The Joint Commission Requirements for Hospitals.

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