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1 1 (January 11, 2016)

handle is hein.crs/govccwp0001 and id is 1 raw text is: FF.ri E~$~ & gognpo go g , q 'S a X 11LULANJILiN, Updated January 11, 2016 Federal Laws Concerning Advance Directives An advance directive is a written statement by a competent person indicating his or her wishes regarding medical treatment in the event of future incompetence. In this context, incompetence means that a person cannot express his or her wishes which may be caused by mental infirmity, unconsciousness, or the inability to communicate. Advance directives may be used to address medical questions during any period of incompetence, including those periods associated with terminal illness. In general, there are two types of advance directives: (1) a living will and (2) a health care power of attorney (also referred to as a durable power of attorney). A living will can inform health care providers about the type of medical care that an individual wants provided or withheld. This may include any type of medical treatment, including a life- sustaining procedure. Living wills typically take effect when the patient cannot communicate his or her wishes for medical care. In general, once a physician receives a living will, he or she either must honor its instructions or transfer the patient to another physician who will honor them. A health care power of attorney is a document that identifies a health care proxy or decisionmaker for the patient. This document typically takes effect when a physician decides that a patient is unable to make a health decision. All 50 states and the District of Columbia have laws concerning advance directives and the appointment of a health care proxy. While generally a matter of state law, Congress has passed laws with respect to advance directives and advance care planning. In 1990, Congress passed the Patient Self-Determination Act (PSDA; P.L. 10 1-508), which requires certain Medicare and Medicaid covered providers (hospitals, nursing homes, home health agencies, hospices, and Medicare Advantage plans) to follow specified policies and procedures in regard to advance directives. Covered providers are required to maintain written policies and procedures with respect to * providing adults with written information regarding their rights under state law to make decisions concerning medical care, including formulating advance directives; * documenting an advance directive in the individual's medical record; * not conditioning the provision of care, or otherwise discriminating against an individual, based on whether or not there is an advance directive; * ensuring compliance with requirements of state law respecting advance directives; and * providing education for staff and the community on issues concerning advance directives. The PSDA also mandated that certain covered providers distribute information about advance directives according to the timing of medical or health-related events such as at the time of admission, initial receipt of care, or plan enrollment. Medicare-certified providers that do not comply with these requirements may have payments withheld by the Secretary of Health and Human Services (HHS). Medicaid law does not contain a similar compliance requirement. Furthermore, the PSDA provides for the continued application of state laws that allow health care providers to object, as a matter of conscience, to implementation of an advance directive. To monitor implementation, a 2015 Government Accountability Office (GAO) report found that the Centers for Medicare & Medicaid Services (CMS) provides documentation to inform covered providers and describe agency monitoring activities (GAO- 15-416). In doing so, CMS relies on outside entities such as state survey agencies and accrediting organizations, as well as internal contract review to monitor the advance directive requirement. GAO also found that while approaches to inform individuals about advance directives can vary by provider, similar challenges existed across settings, including provider discomfort in talking about end-of-life issues as well as lack of staff time for such discussions. Two other laws concerning advance directives and advance care planning are the National Defense Authorization Act for Fiscal Year 1996 (§748 of P.L. 104-106; 10 U.S.C. 1044c), which established a federal advance directive for military personnel that explicitly preempts state law, and the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA; P.L. 110-275). Among other things, MIPPA added end-of-life planning to the initial preventive physical exam that Medicare beneficiaries receive upon enrollment. MIPPA defines end-of-life planning to mean verbal or written information regarding an individual's ability to prepare an advance directive in the case that an injury or illness causes the individual to be unable to make health care decisions; and whether or not the physician is willing to follow the individual's wishes as expressed in an advance directive. The characterization of end-of-life or advance care planning as death panels during the health reform debate led policymakers to shy away from proposals to establish a Medicare covered advance care planning (ACP) benefit under the Patient Protection and Affordable Care Act (ACA; P.L. 111-148, as amended). However, some stakeholders saw opportunity to include more limited coverage of ACP under the ACA-established Medicare .O 'T

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