Advance Directives Laws and Standards for Healthcare Providers: Are You in Compliance?

March 16, 2011

Inquiring of patients and educating the public about advance directives (written instructions that identify people’s healthcare wishes in the event they cannot speak for themselves) is required by federal law for most healthcare facilities, and the key accreditation agencies have corresponding standards. Advance directives frequently benefit patients, their families, and providers, by producing more patient-centered care, reduced conflict, and greater efficiency.

Under the CMS Conditions of Participation (42 CFR § 489.102), “Hospitals, critical access hospitals, skilled nursing facilities, nursing facilities, home health agencies, providers of home healthcare (and for Medicaid purposes, providers of personal care services), hospices, and religious non-medical healthcare institutions must maintain written policies and procedures concerning advance directives with respect to all adult individuals receiving medical care.” Among other things, the above providers must do all of the following:

  • Ensure compliance with requirements of state laws on advance directives.
  • Provide staff education on the facility’s advance directive policies and procedures.
  • Provide community education on advance directives.

Similarly, ambulatory surgery centers (ASCs), under the CMS Conditions of Coverage (42 CFR 416.50), are required to inquire with all patients about advance directives and 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.

Dialysis facilities, under the CMS Conditions of Coverage (42 CFR 494.70), must also ensure patient rights, and among other things, ensure that every patient “be informed about his or her right to execute advance directives, and the facility’s policy regarding advance directives.”

In addition to these regulatory requirements, honoring patient rights – including wishes set forth in advance directives – is required by both the Joint Commission (RI.01.05.01) and AAAHC (Rights of Patients, F.8).

Advance directives are also included in the CMS rule for “Meaningful Use” as part of the Electronic Health Records Incentive Program, such that “more than 50 percent of all unique patients 65 years old or older admitted to the eligible hospital’s or critical access hospital’s inpatient (POS 21) have an indication of an advance directive as structured data.” (42 CFR 495.6)

In light of these rules, all providers should consider using National Healthcare Decisions Day on April 16 to:

  • 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.
  • Ensure that they have up-to-date information and forms available for their patients that are consistent with applicable state law.

National Healthcare Decisions Day, a grassroots collaborative effort of a broad array of organizations and providers across the country, also exists to inspire providers themselves to take personal action with respect to advance care planning. Indeed, all providers are potential patients too. On or before April 16, all Americans are encouraged to discuss and document their healthcare wishes, regardless of what they may be.

For more information on advance directives, including free forms for every state, please consider the materials available on the National Healthcare Decisions Day website. Note: This nationwide advance directives educational event was founded and is chaired by McGuireWoods partner Nathan Kottkamp (contact information above).

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For assistance with advance directives issues, including development of policies and staff education, or any other questions about healthcare ethics, please contact the author.