Advance Directive and resident’s rights related to medical decision making are addressed in the surveyor guidance under F578. Understanding how the guidance defines both advance directives and advanced care planning is critical to complying with the regulations:

Advance care planning is a process of communication between individuals and their healthcare agents to understand, reflect on, discuss, and plan for future healthcare decisions for a time when individuals are not able to make their own healthcare decisions.

Advance directive is a written instruction, such as a living will or durable power of attorney for health care, recognized under State law (whether statutory or as recognized by the courts of the State), relating to the provision of health care when the individual is incapacitated (See §489.100.)

Consider these important factors and best practices:

      • If the resident or the resident’s representative has executed one or more advance directive(s), or chooses to execute one upon admission, copies of these documents must be obtained and maintained in the same section of the resident’s medical record. They should be readily retrievable by any facility staff. Facility staff must communicate the resident’s wishes to the resident’s direct care staff and physician. With the increased use of electronic medical records, consideration should be given to how the paper documents are scanned into the medical record and the most accessible location for these records to be maintained.
      • If the resident does not have an advance directive, facility staff must inform the resident or resident representative of their right to establish one as set forth in the laws of the State. The facility must provide any assistance necessary if the resident wishes to execute advance directive(s). Facility staff must document in the resident’s medical record these discussions and any advance directive(s) that the resident executes.

It is important to note that while the resident has the option to execute advance directives, the facility cannot require the resident to do so.

Policies and Procedures

The facility’s policies and procedures should delineate the various steps necessary to promote and implement these rights, including, but not limited to:

      • Determining on admission whether the resident has an advance directive and, if not, determining whether the resident wishes to formulate an advance directive;
      • Providing information in a manner easily understood by the resident or resident representative about the right to refuse medical or surgical treatment and formulate an advanced directive. This includes a written description of the facility’s policies to implement advance directives and applicable State law regarding advance directives.
      • Determining a process for  facility staff to periodically assess the resident for decision-making capacity, and invoking s involvement of the health care agent or representative if the resident is determined not to have decision-making capacity;
      • Identifying the primary decision-maker (assessing the resident’s decision-making capacity and identifying or arranging for an appropriate representative for the resident when it is assessed that the resident is unable to make relevant health care decisions);
      • Defining and clarifying medical issues and presenting the information regarding relevant health care issues to the resident or his or her representative, as appropriate;
      • Identifying, clarifying, and periodically reviewing, as part of the comprehensive care planning process, the existing care instructions and whether the resident wishes to change or continue these instructions;
      • Identifying situations where health care decision-making is needed, such as a significant decline or improvement in the resident’s condition;
      • Establishing mechanisms for documenting and communicating the resident’s choices to the interdisciplinary team and to the staff responsible for the resident’s care; and
      • Identifying the process (as provided by State law) for handling situations in which the facility staff and/or physician do not believe that they can provide care in accordance with the resident’s advance directives or other wishes on the basis of conscience.

Contact Proactive for assistance in reviewing and updating your clinical and operational policies and procedures. Interested in more industry updates on potential areas of legal risk? Make plans to join us for the May 16, 2023 session LTC Litigation Briefing as part of the You Might Be an Administrator If… series

Written By: Christine Twombly, RN-BC, RAC-MT, RAC-MTA, HCRM, CHC
Clinical Consultant

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