FAQ on Advance Directives in Ambulatory Surgery Centers

May 27, 2009

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 revised CMS 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 condition.

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 inappropriate.

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. Can 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 ill patients?

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 CoCs.

Q: Is a general power of attorney the same as a durable power of attorney for health care?

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 directives?

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.