April 16, 2021 is National Healthcare Decisions Day. The goal of the day is to encourage Americans to think and talk about their health care goals and communicate their health care decisions by executing advance health care directives.

Recent studies have found that most Americans have not executed documents that name a health care decisionmaker or executed a living will declaration to express their wishes for their end-of-life care. As a result, families and health care providers frequently struggle when forced to make difficult health care decisions in a crisis in the absence of guidance from the patient. These stressful moments can be eased if individuals execute advance health care directives or living will declarations and appointments of health care representatives or health care powers of attorney.

Purpose and History of the Initiative

Across the United States, health care providers, professionals, chaplains, attorneys and others will focus attention on the importance of appointing health care decisionmakers and expressing end-of-life care desires. These groups will educate Americans that they have the right to make decisions about their health care in the event they cannot speak for themselves or are incapacitated and cannot make those decisions. These groups will also draw attention to the steps individuals can take to execute advance health care directives, such as appointments of health care representatives, health care powers of attorney and living will declarations, in accordance with applicable state laws.

National Healthcare Decisions Day is a collaborative effort, and many national organizations are participating.

Skilled Nursing Facility Regulatory Requirements

Skilled Nursing Facility (“SNF”) residents:

  • Have the right “to request, refuse, and/or discontinue treatment” and “to formulate an advance directive.” 42 CFR 483.10(c)(6);
  • Do not have the right to receive medical treatment or medical services deemed medically unnecessary or inappropriate 42 CFR. 483.10(c)(8); and
  • Have the right to be informed by the SNF in writing of their right to formulate an advance directive. 42 CFR 483.10(g)(12).

SNF personnel shall provide basic life support, including cardiopulmonary resuscitation to a resident requiring such emergency care prior to the arrival of emergency medical personnel and subject to related physician orders and the resident’s advance directives under 42 CFR 483.24(a)(3).

SNF Advance Care Planning and Citation Tag F-578

The surveyor guidance under F-578, which covers advance directives, in Appendix PP of the State Operations Manual defines and discusses advance care planning as a process of communication between individuals and their health care agents to understand, reflect on, discuss, and plan for future health care decisions for a time when individuals are not able to make their own health care decisions. Essentially, this is a practice to support and understand a resident’s values, goals, and preferences regarding future medical care.

Tag F-578 was cited 715 times in 2020 and 1,513 in 2019.

The State Operations Manual also urges surveyors to interview the resident, resident’s representative and facility staff to determine if: (1) residents are informed in a manner they understand of their right to request or refuse treatment; (2) a resident has an advance directive and if staff are aware of what this directive states; (3) a resident does not have an advance directive and, if so, how the resident was informed of his or her right to develop one and was the resident provided assistance in doing so; and (4) staff periodically assess a resident’s decision making capacity, how often and how and by whom is this done.

Types of Health Care Directives

  • An advance health care directive or living will declaration is a document that allows individuals to continue their personal autonomy and provide instructions for what medical treatments would or would not be wanted in case they become incapacitated and cannot make decisions.
  • An appointment of a health care representative or health care power of attorney is a document that allows individuals to select a person who will make their decisions if they become incapacitated and cannot communicate their wishes directly.
  • Also, many states now have a form that is intended to document your end-of-life treatment and health care preferences into medical orders that health care providers can follow. These forms are called Physician Orders for Scope of Treatment, Physician Orders for Life-Sustaining Treatments or Medical Orders for Life-Sustaining Treatment.

Civil Money Penalties Possible

The Department of Health and Human Services Department Appeals Board Civil Remedies Division upheld a $20,965 per-instance civil money penalty when a SNF was not in substantial compliance with 42 CFR 483.10(c)(6), (c)(8), (g)(12) and 483.24(a)(3) because it failed to ensure that the advance directive information, including code status, for certain residents was clear and accurate for SNF staff to follow.

Integrate Resident Advance Directives into SNF Emergency Preparedness Planning

As the next phase of the COVID-19 virus spreads and creates hot spot parts of the country, it is important to include advance directive planning into a SNF’s emergency preparedness plans to make sure resident intentions are known.

Practical Takeaways

  • SNFs should include advance directive planning into a SNF’s emergency preparedness plans to make sure resident intentions are known.
  • Understand that residents and staff are likely to be interviewed by surveyors to determine if a resident has an advance directive and if staff are aware of what this directive states.
  • Providers, SNFs and caregivers generally benefit when patients have health care directives and documents that appoint health care decisionmakers. Providers, SNFs and caregivers can encourage their patients and remind them of the importance of these decisions, discussions, and documents. Additional information about the day is available here.