In light of the release of CMS’s Revised ASC Interpretive Guidelines, and to
address several “frequently asked questions,” our original alert of 5/18/2009 is
being reissued with an FAQ section below.
Effective May 17, 2009, ASCs are required by the
Conditions of Coverage (42 CFR § 416.50) to
inquire with all patients about advance directives
and to provide patients with information about their
policies on advance directives and information on
applicable state law. Furthermore, ASCs must provide
patients with official state advance directives
forms, if requested.
Although state laws vary, advance directives
typically come in two forms:
- Designation of an agent (or “proxy” or
“surrogate” or “durable power of attorney for
healthcare”) to specific a decision-maker at any
time a patient cannot speak for himself/herself.
- “Living will” to specify the patient’s
healthcare wishes in the event of a terminal
In addition to the above advance directives, many
patients have “Do Not Resuscitate” (or “Allow
Natural Death”) orders that set forth the type of
care wanted in the event of cardiac and/or
respiratory arrest. In some states, DNR orders are
considered to be advance directives.
Although the procedures performed in ASC
typically do not create situations in which advance
directives or DNRs will be an issue, CMS has
recognized that discussions about advance directives
are becoming a standard practice and are important
in those rare circumstances in which complications
arise. Furthermore, honoring advance directives is
required by the AAAHC accreditation standards
(Rights of Patients Standard F.8), and both the
American College of Surgeons and the
American Society for Anesthesiologists have
professional standards indicating that automatic
suspension or revocation of DNRs for surgery is
In light of the new rules, ASCs should reexamine
any existing advance directives policies and/or
create new ones; document, in a prominent part of
the patient’s record, whether the patient has an
advance directive; ensure that their professional
and support staff are educated on the topic; and
ensure that they have up to date information and
forms available for their patients that are
consistent with applicable state law.
Q: Our ASC has a policy that we will not honor DNR orders. Is this
legal under the revised conditions of coverage?
A: Yes, but you now must provide notice to the patient of this policy.
Providing notice enables the patient to make a fully informed decision whether
to have the procedure performed at the ASC or another facility. If the ASC’s
policies are not made available to the patient, this practice would violate the
new CoCs. Significantly, because DNRs are either just a subcategory of the
broader term “advance directives” or because they are not considered to be
advance directives at all under applicable state law, the ASC should be careful
not to advise patients that they do not honor any advance directives.
Q: Our ASC has limited resources and/or a very narrow scope of services.
we advise patients that we will not honor any advance directive?
A: Probably not. The term “advance directive” covers several potential ways in
which a patient may make his/her health care wishes known: designation of an
agent; living will; organ donation choice; and (in some states) DNR orders. Even
if an ASC’s policy is to suspend DNR orders, other aspects of a patient’s
advance directive may still be followed. For example, regardless of the ASC’s
policy on DNRs, the ASC should comply with the patient’s choice of an authorized
decision maker in the event that a health care decision must be made while the
patient is under anesthesia, or in the event of some adverse event.
Q: Aren’t advance directives limited to end-of-life decisions for terminally
A: No. As described above, the designation of a decision-making agent is a key
element of many advance directives. Furthermore, an increasing number of states
allow advance directives to address psychiatric treatment wishes and other
health care choices. These choices apply whenever a patient is incapable of
speaking for himself/herself—regardless of whether is terminally ill.
Q: Must a patient have an advance directive executed and on file before a
procedure is performed?
A: No. It is the patient’s right to execute an advance directive or not. It is
the ASC’s responsibility to document the patient’s choice either way. If a
patient chooses not to execute an advance directive, the ASC still needs to have
policies and procedures in place to address situations in which a patient cannot
speak for himself/herself. These policies should advise staff on order of
decision makers in the absence of an advance directive under state law.
Q: What happens if a patient has an advance directive, but the
document is at home?
A: The advance directive in this case may still be valid, but it is effectively
useless for the ASC’s purposes. In this circumstance, patients should be given
the option of completing a new advance directive at the ASC, particularly
because advance directive forms are required to be available anyway under the
Q: Is a general power of attorney the same as a durable power of attorney for
A: Not always. A general power of attorney is typically used to give someone
else authority to conduct financial transactions and make decisions about money.
A durable power of attorney for health care (a.k.a., durable power of attorney,
agent, or proxy) is typically only authorized to make health care choices. Often,
the documents are not executed in the same way. General powers of attorney
(financial) are almost always notarized (because banks won’t honor them
otherwise, regardless of state law), while health care power of attorney
documents follow the advance directive execution requirements in each state.
Q: What is meant by the statement,“honoring advance directives is
required by the AAAHC accreditation standards”?
A: AAAHC’s standards with respect to advance directives predate, but are
entirely consistent with, the revised CoCs. The AAAHC standards provide, among
other things: “Patients are [to be] treated with respect, consideration, and
dignity. . . Patients are [to be] given the opportunity to participate in
decisions involving their health care . . . Information is [should be] available
to patients and staff concerning . . . advance directives, as required by state
or federal law and regulations.” Collectively, this language reflects a need to
honor the wishes of the patient. This necessarily requires inquiring about the
patient's wishes, offering information about how to make wishes known, and
advising the patient if the facility is unwilling or unable to honor those
wishes so that the patient may make an informed decision about whether to
proceed with the surgery.
Q: Do the American College of Surgeons and the American Society for
Anesthesiologists prohibit the suspension of DNRs for surgery?
A: No. These professional societies are saying that it is inappropriate to
automatically suspend these orders without providing notice to the patient.
Reconsideration gives the patient the ability to offer fully informed consent
about whether to have the procedure performed by providers who have stated they
will not honor his/her DNR during surgery.
Q: Where can we obtain forms and information on legal formalities of advance
A: Many states have forms in their statutes. Free forms are also often available
from your state hospital association and/or bar association. More details, including links for free forms and information for all 50
states, is available at the
National Healthcare Decisions Day website.