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Advance Directives Require Important Considerations
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September 19, 2024
Advance directives rank among the most important legal documents in the healthcare setting. They come into use when a patient is incapacitated and cannot provide informed consent for care or cannot actively participate in care planning. Among the various types of advance directives, the most common in the healthcare setting are the living will and the durable power of attorney for health care.
In 1990, Congress enacted the Patient Self-Determination Act that mandated healthcare institutions that receive Medicare and Medicaid funding abide by all requirements concerning patients’ rights (as defined by state law) to allow and encourage patients to participate in decisions regarding their care and to adhere to all requirements specific to advance directives. Advance directives allow patients to preserve autonomy and self-determination for healthcare decisions with assurance of adherence by the healthcare team to the patient’s advance care planning wishes. Patients have a right to develop or change an advance directive, and hospitals have an obligation to honor and abide by the patient’s wishes, as long as those wishes would comply with state law and hospital policy. The focus of this publication is specific to requirements related to advance directives.
- 09.02.04 Information Sharing.
- 15.00.00 Condition of Participation: Patients’ Rights.
- 15.01.00 Notice of Patient Rights.
- 15.01.02 Notice and Promotion of Patient Rights.
- 15.01.05 Advance Directives.
- 15.01.13 Notification of Visitation Rights.
- 21.00.11 Transmission of Patient’s Necessary Medical Information.
- 32.01.01 Resident Rights.
- 32.01.02 Right to Request, Refuse, and/or Discontinue Treatment.
- 01.00.01 Compliance with Federal Laws and Regulations.
- 06.10.00 Condition of Participation: Patient’s Rights.
- 06.10.01 Notice of Patient Rights.
- 06.10.02 Notice and Promotion of Patient Rights.
- 06.10.05 Advance Directives.
- 06.10.13 Notification of Rights.
- 11.01.01 Resident Rights.
- 11.01.05 Right to Request, Refuse, and/or Discontinue Treatment.
- 11.10.01 Quality of Life.
- 11.02.04 Transfer and Discharge: Documentation Requirements.
- 17.02.04 Information Sharing.
Tips for Compliance
Regulatory requirements regarding advance directives are applicable to all inpatients, inpatients under observation status, emergency department patients, same-day surgery patients, and swing bed patients. Hospitals must:
- Provide written information to patients concerning:
- An individual’s rights under state law (whether statutory or recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment, and the right to formulate, at the individual’s option, advance directives.
- Maintain written policies and procedures concerning advance directives. Policies must include:
- The requirement to transfer the patient’s advance directive to a receiving facility when the patient is being transferred at discharge or when the patient is being transferred during an emergency situation.
- The mechanism the hospital has in place to allow patients to formulate or update an advance directive.
- A clear and precise statement of limitation if the hospital cannot implement an advance directive on the basis of conscience.
- The procedures regarding patients who are incapacitated at the time of admission or at the start of care and are unable to receive information (due to the incapacitating conditions or a mental disorder) or articulate whether or not he or she has executed an advance directive.
- Document in a prominent part of the patient’s current medical record whether or not the individual has executed an advance directive.
- Ensure compliance with state law regarding advance directives and inform patients that complaints concerning advance directives may be filed with the state survey or certification agency.
- Provide education to staff concerning policies and procedures regarding advance directives.
- Provide community education regarding issues concerning advance directives. Information regarding what may be included in the community education can be found here: https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-489/subpart-I/section-489.102#p-489.102(a)(1)
Taken together, a living will and a durable power of attorney for health care are important healthcare documents; hospital policies and procedures are required to detail the processes hospitals will follow to establish compliance. Beyond the requirements, though, hospitals are encouraged to diligently provide patient education regarding advance directives to promote knowledge and awareness to patients, families, and the community. Hospitals also should strive to obtain a copy of the advance directive to maintain in the patient’s medical record. This is often a challenge, which is why it is so important to make consistent efforts to obtain a copy.
Here for You
ACHC is more than an accreditor. We are your partners. For more information, or to obtain a copy of ACHC’s Accreditation Requirements for Acute Care Hospitals or Accreditation Requirements for Critical Access Hospitals, contact your Account Advisor, email [email protected], or call (855) 937-2242.
Accreditation Commission for Health Care, Inc.