NOTE: This blog post is written for administrators of Nursing Homes and other long term care facilities. For more information for the general public, see our other blog posts.
It is important that facilities give enough time and attention to make sure that the patient properly understands the care decisions that might need to be made, including the end of life decision making in their advance directives. This article will outline the rules as they apply to Skilled Nursing Facilities and the common ways a facility may violate these rules.
The federal rules provides guidelines regarding end of life decision making in Skilled Nursing Facilities. These rules require that a facility:
“…inform and provide written information to all adult residents concerning the right to accept or refuse medical or surgical treatment and, at the resident’s option, formulate an advance directive.”
Have a “written description of the facility’s policies to implement advance directives and applicable State law.”
-42 CFR 483.10(g)(12)
This means a facility is required by federal and state law to inform the adult resident about accepting or declining care. If the adult desires to formulate an advance directive, the resident must be permitted to do so. In addition, the facility must have a written description of the facility’s policies to implement advance directives and the applicable state law.
Facilities that fail to meet these requirements almost always fail in one of two ways: 1) They don’t have a written plan regarding implementing advance directives, or 2) they fail to follow the plan they have and properly inform the patient regarding their rights and/or fail to give them the opportunity to implement an advance directive.
Another way that a facility can violate these rules is to create a plan for informing patients that is not realistic to implement. A facility that does not follow its own plan may be penalized for not following that plan, even if the failure was for something not explicitly covered by the rules.
The rule DOES NOT REQUIRE that a patient fill out an advance directive or have a POST. Both Idaho law and F-Tag rules allow a patient to determine not to fill out an advance directive. If a patient decides not to make end of life decisions and complete a POST and advance directive, it is vital that the facility appropriately document its efforts to inform the patient and its efforts to give the patient the option of filling out an advance directive and/or POST. If a patient refuses to make end of life care decisions, the facility should proceed exactly as they would otherwise when a patient’s wishes are not known. That is, medically appropriate care should be provided.
If a patient is incapacitated and cannot be informed regarding these issues, a facility is required to do two things: First, give the information to the patient’s representative (either the agent under the person’s health care power of attorney, or the person authorized as the surrogate decision maker under Idaho Code Section 39-4504, which lists the persons who may give consent to care for others). Second, if a patient regains the capacity to receive the information, the facility is still required to inform the patient, even if the surrogate decision maker has already been informed.
