What’s Working Wednesday October 21 & November 11, 2015
Keys to compliance in the absence of advance directives
In contrast to increasing focus on compliance with advance directives, is the dilemma presented when no agent is named and advance directives do not exist. More than two-thirds of Americans do not have advance directives and will require provider intervention to help determine how far end of life treatment will go. We will look into one nursing home’s experience in documenting the process in determining the appropriate decision maker, what decisions they are allowed to make, and when/how that authority is properly used. As a result of interactions with State surveyors, this story will allow your business to check its compliance with current regulators’ expectations.
OUTLINE
ü Story of nursing home’s first meeting with regulators
o Lessons learned on interpreting healthcare agent’s authority
§ Health care agent named in Advance Directive (AD) does not have the power to overrule specific direction contained in AD; (such as: “resident desires no artificial hydration/nutrition”) regardless of how broad the powers granted them in the AD might be.
§ Community cited including penalties
ü Story of nursing home’s second meeting with regulators
o On revisit: Lessons learned regarding MOLSTS and surrogate decision makers (SDM)
§ State regulators entered wanting to see all MOLSTs by surrogate decision makers marked “DNR”.
§ They looked for accompanying certifications of (a) incapacity by 2 physicians; and (b) qualifying condition by 2 physicians.
§ Although all certifications were present, some were found to be improperly assessed. (Dementia is not and end-stage condition). Medical director cited as well as community.
o Determining and documenting SDM’s
§ Surrogate decision makers have equal authority at each tier of authority: Tiers of authority are in order of authority. It must be determined that no one qualifies at the first tier of SDM, before progressing to the next level down.
· 1-spouse/domestic partner
· 2-adult child(ren)
· 3-parent(s)
· 4-adult sibling(s)
· 5-Friend/other (requires specific affidavit)
§ If there is more than one person in a particular tier, they must all be in agreement for life sustaining treatment to be withheld. For example, if there are 3 children and 2 want Mom to be a DNR and the 3rd wants Mom to be a full-code, Mom must remain a full code.
§ UNLESS, each of the decision makers at a particular tier agree that one individual can make the decision alone. Those choosing to waive their right to decide should sign a form indicating the same, and the nursing community should be able to produce such documentation upon request.
o Authority of SDM’s to withhold life-sustaining treatment
§ Surrogate decision makers do not have authority to withhold Life Sustaining Treatments (LST) on MOLSTs, including CPR, until resident has been certified by physicians to lack capacity, and to be in one of 3 qualifying conditions. Residents must remain full-code on MOLSTs by SDM until all certifications are in place and qualifying condition has been met.
o Determining qualifying conditions
§ End-stage condition must include complete mental and physical dependence. Think bed-ridden. Needing cueing to eat does not constitute dependency.
o Physicians’ certifications
§ “End-stage condition” does not include end-stage dementia. End-stage condition must include complete mental and physical dependence. Think bed-ridden. Needing cueing to eat does not constitute dependency.
§ Medically ineffective should be the rare exception, and should not be used as a standard way around requiring a resident be in a qualifying condition in order for a surrogate to have legal authority to withhold CPR and other life sustaining treatments.
ü Training of staff, physicians, community providers and neighboring hospital participation
o Lesson learned on community cooperation in developing improved transitions among care providers
o Under directed plan of correction, nursing community joined with local health care providers and neighboring hospital to share in training from (1) a doctor specializing in MOLST training, and (2) an attorney who helped author the Health Care Decisions Act. Both speakers were approved by the OHCQ for the presentations.
o The state regulator-directed AD/MOLST training resulted in improved patient transitions and inter-provider communication among locations of care through the County. Also, Advanced Directives are more strongly encouraged by health care providers now better understanding the serious limitations placed on surrogates’ decision making authority.
o Part of training included that employees of health care providers MAY act as witnesses to Advance Directives. This includes hospital employees, nursing community employees, and physician’s office employees.
o Two witnesses are required in Maryland (none of which can be the healthcare agent named in the AD). No notary is required.
o BONUS INFO provided during trainings:
§ If an advance directive was executed in another state, and is valid under that state’s laws, it is valid in Maryland.
§ If an advance directive was executed in another state, and is invalid according to that state’s laws, but is valid under Maryland law (2 witnesses, no notary), it is still valid in Maryland.
§ (Source: Ober/Kaler law firm)
ü Other topics suggested for future WWW presentations:
o Legalities of employees acting as witnesses
o Proper use of “Medically Ineffective” certification
o Rules surrounding “Oral advance directives”
Renee Brooksbank, MAgS LNHA
Executive Director
Calvert County Nursing Center,
an Asbury Community