SURROGATE DOCUMENTS...• Types: General, Healthcare, Financial • Execution: (1) signed (when principal is of sound mind); (2) dated; (3) signed by two witnesses; and (4) notarized

SURROGATE DOCUMENTS

Honoring the rights and wishes

of residents with diminished

decision-making abilities

© 2016 Husch B lack we l l LLP

INTRODUCTION

Purpose of Surrogate Documents: ensure

wishes are carried out, appropriate care and

treatments are given, peace of mind and sense of

security for residents and family, avoid need for

the appointment of a guardian, compliance by

facilities with applicable laws and regulations

Patient Self-Determination Act & F-Tag #155

42 U.S.C § 1395cc(f) & 42 C.F.R. § 483.10(b)

Starting the conversation . . . https://www.youtube.com/watch?v=1B3otefmrjA

https://www.youtube.com/watch?v=1B3otefmrjA


OVERVIEW

• Patient Self-Determination Act and Survey Implications

• Determining Capacity

• Applicable Standards

• Surrogate decision-making

– Durable Power of Attorney

– Guardianship / Conservatorship

• Advanced Health Care Directives / Living Will

• Privacy Rules & Exceptions

• HIPPA Authorizations

• Emerging Issues & Legislative Changes


PATIENT SELF-DETERMINATION ACT

“Require[s] hospitals, skilled nursing facilities, home health agencies, hospice programs, and health maintenance organizations to: (1) inform patients of their rights under State law to make decisions concerning their medical care; (2) periodically inquire as to whether a patient executed an advanced directive and document the patient's wishes regarding their medical care; (3) not discriminate against persons who have executed an advance directive; (4) ensure that legally valid advance directives and documented medical care wishes are implemented to the extent permitted by State law; and (5) provide educational programs for staff, patients, and the community on ethical issues concerning patient self-determination and advance directives.” Summary of the Congressional Research Service (CRS), Library of Congress


F-TAG #155

483.10(b)(4): “The resident has the right to refuse

treatment, to refuse to participate in experimental

research, and to formulate an advanced directive as

specified in paragraph (8) of this section;” [see below]

483.10(b)(8): “The facility must comply with the

requirements . . . relating to maintaining written policies

and procedures regarding advance directives. These

requirements include provisions to inform and provide

written information to all adult residents concerning the

right to accept or refuse medical or surgical treatment

and, at the individual’s option, to formulate an advanced

directive . . .”


The need for a healthcare

surrogate, such as a DPOA, to

make decisions arises with

loss of capacity . . .


DETERMINING CAPACITY

Observations and Interactions

Mental Status Examinations

Who decides?

What are the implications of that decision?


APPLICABLE STANDARDS

Substituted judgment standard – surrogates must follow

the individual’s known or probable wishes (Quinlan)

Missouri Department of Health and Human services may

require clear and convincing evidence of the individual’s

actual wishes before removing life support (Cruzan)

– Cases involving withdrawal of artificial nutrition and hydration

Surrogates must act in the best interests of the

individual: analyze the benefits and burdens of the

options (fallback in most states, but not in Missouri)


SURROGATE DECISION MAKING

Durable Power of Attorney

Guardianships and Conservatorships


DURABLE POWER OF ATTORNEY

• Types: General, Healthcare, Financial

• Execution: (1) signed (when principal is of sound mind);

(2) dated; (3) signed by two witnesses; and (4) notarized

• Must include a provision that the durable power

remains in effect if principal is disabled/incapacitated

• Effective immediately or after two licensed physicians

certify incapacity (can specify only one physician)

• Authority to withdraw hydration and nutrition must

be expressly granted: RSMo. § 404.820

• Physician Serving as Attorney in Fact: RSMo. § 404.815

• “Conscience” exception: RSMo. § 404.830


GUARDIANSHIPS AND CONSERVATORSHIPS

Guardianships (for personal affairs)

Conservatorships (for financial affairs)

Court ordered or appointed:

– Must file petition in the probate division of circuit court

– Hearing on respondent’s inability to make decisions and need for appointment of guardian/conservator

– Petitioner can nominate him or herself as guardian and/or conservator and has the burden of proof

– Involved and often complex legal process


ADVANCED DIRECTIVES / LIVING WILL

• Specific instructions (directives) for treatment

• Execution: (1) signed; (2) dated; (3) signed by two

witnesses (if a form is used); and (4) notarized

• DNR (Do Not Resuscitate Order)

• POLST (Physician Orders for Life Sustaining

Treatment)


DNR• Do Not Resuscitate Order

• Requirements for an outside the hospital DNR: RSMo. § 190.603

• Executed by the patient or patient’s representative & the patient’s attending physician in the form promulgated by rule of the department

• Maintained as first page of patient’s medical record in facility unless otherwise specified in facility’s policies

• Must be transferred with the patient when the patient is transferred from one health care facility to another; must be provided to any other facility, person, or agency, responsible for the medical care of the patient or to the patient or patient’s representative

• DNR Order should be in the beginning of the resident’s chart

• DNR should follow the resident and DNR status should be included in report


CARDIOPULMONARY RESUSCITATION (CPR)

CPR is required if a resident is found

pulseless unless:

(1) A valid DNR is in place; (2) there are

obvious signs of clinical death (e.g., rigor

mortis); or (3) initiating CPR could cause

injury or peril to the rescuer


POLST

Physician Orders for Life Sustaining Treatment

Documentation of patient’s wishes and advance

care planning decisions that results in

physician’s orders


PRIVACY RULES & EXCEPTIONS

HIPPA

Consent to share information

Emergency Situations


HIPPA AUTHORIZATIONS

HIPPA Release for Medical Information

Who can sign? Patient / Resident,

Guardian, Personal Representative, DPOA,

Plaintiff ad litem


EMERGING ISSUES

Need for greater emphasis on advance care planning and palliative care in the healthcare field

– Enhance palliative care and end of life training

– Medicare coverage of advance care planning as a separate service provided by physicians and other healthcare professionals (e.g., NPs)


LEGISLATIVE CHANGES & PROPOSALS

Death with Dignity bill (HB 307) considered for

the first time in Missouri in 2015: the bill received

no hearings & did not make it out of committee

Nurse Practitioners and Physicians Assistants

may now complete death certificates: RSMo.

§ § 193.015, 193.145 (2015)


SOURCES

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), aff’d sub nom. Cruzan v. Dir., Mo. Dept’ of Health, 497 U.S. 261 (1990); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976 N.J.)

Zehr, Martin, Ph.D, J.D., The Assessment of Capacity in Civil Setting, Journal of the Missouri Bar (March-April 2012)

Benson WF and Aldrich N., Advance Care Planning: Ensuring Your Wishes Are Known and Honored If You Are Unable to Speak for Yourself, Critical Issue Brief, Centers for Disease Control and Prevention (2012), available at: www.cdc.gov/aging

National POLST Paradigm, Physician Orders for Life-Sustaining Treatment Paradigm (2016), available at: www.polst.org/advance-care-planning

U.S. Department of Health & Human Services, Health Information Privacy, available at: http://www.hhs.gov/hipaa/for-professionals/faq

National Hospice and Palliative Care Organization, Missouri Advance Directive, Planning for Important Health Care Decisions (2005, revised 2015), available at: http://www.caringinfo.org/files/public/ad/Missouri.pdf

Missouri Bar, Durable Power of Attorney, Guardians and Conservators Under Missouri Law, available at: www.mobar.org

Leo, Raphael, M.D., Competency and the Capacity to Make Treatment Decisions: A primer for primary Care Physicians, Prim. Care Companion, J. Clin. Psychiatry (Oct. 1999)

Sabatino, Charlie and Wood, Erica, Commission on Law and Aging, American Bar Association, Surrogate Decision-Making and Advance Directives – Nuts & Bolts, National Aging and Law Conference (Dec. 2010)

CMS Memorandum, Cardiopulmonary Resuscitation (CPR) in Nursing Homes (October 2013), available at: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-01.pdf

Kaiser Family Foundation, 10 FAQs: Medicare’s Role in End-of-life-Care (Nov. 2015); available at: http://kff.org/medicare/fact-sheet/10-faqs-medicares-role-in-end-of-life-care/

http://www.cdc.gov/aging

http://www.polst.org/advance-care-planning

http://www.hhs.gov/hipaa/for-professionals/faq

http://www.caringinfo.org/files/public/ad/Missouri.pdf

http://www.mobar.org/

https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-01.pdf

http://kff.org/medicare/fact-sheet/10-faqs-medicares-role-in-end-of-life-care/


CONTACT INFORMATIONHarvey Tettlebaum

Husch Blackwell LLP

235 East High Street

P.O. Box 1251

Jefferson City, MO 65102

Phone: 573-761-1107

E-mail: [email protected]

Liz LaFoe

Husch Blackwell LLP

235 East High Street

P.O. Box 1251

Jefferson City, MO 65102

Phone: 573-761-1118

E-mail: [email protected]