Kan. Medical Assistance Program Hospice Fee-for-Service Provider Manual § 8400, Advance Directives

Hospice providers participating in KMAP must comply with federal legislation (OBRA 1990, Sections

4206 and 4751) concerning advance directives.

Specific requirements

1. Each hospice must provide written information to every adult individual receiving medical

care by or through the hospice. This information must contain:

• The individual's right to make decisions concerning his or her own medical care

• The individual's right to accept or refuse medical or surgical treatment

• The individual's right to make advanced directives

• The Kansas Department for Aging and Disability Services (KDADS) "Description of the

Law of Kansas Concerning Advance Directives"

Note: KDADS does not provide copies of the description to providers. It is up to

providers to reproduce the description. Providers are free to supplement this description

as long as they do not misstate Kansas law.

2. Additionally, each hospice must provide written information to every adult individual about

the hospice's policy on implementing these rights.

3. A hospice must document in every individual’s medical record whether the individual has

executed an advanced directive.

4. A hospice may not place any conditions on health care or otherwise discriminate against an

individual based upon whether that individual has executed an advance directive.

5. Each hospice must comply with State law about advance directives.

6. Each hospice must provide for educating staff and the community about advance directives.

This may be accomplished by brochures, newsletters, articles in the local newspapers, local

news reports, or commercials.

Incapacitated individuals

An individual may be admitted to a facility in a comatose or otherwise incapacitated state, and be

unable to receive information or articulate whether he or she has executed an advance directive.

If this is the case, families of, surrogates for, or other concerned persons of the incapacitated

individual must be given the information about advance directives. If the incapacitated individual

is restored to capacity, the hospice must provide the information about advance directives directly

to him or her even though the family, surrogate or other concerned person received the

information initially.

If an individual is incapacitated, otherwise unable to receive information or articulate whether he

or she has executed an advance directive, the hospice must note this in the medical record.

Mandatory compliance with the terms of the advanced directive

When a patient, relative, surrogate, or other concerned/related person presents a copy of the

individual's advance directive to the hospice, the hospice must comply with the terms of the

advance directive to the extent allowed under state law. This includes recognizing powers

of attorney.

DESCRIPTION OF THE LAW OF KANSAS CONCERNING ADVANCE DIRECTIVES

There are two types of "advance directives" in Kansas. One is commonly called a "living will"

and the second is called a "durable power of attorney for health care decisions."

The Kansas Natural Death Act, K.S.A. 65-28,101, et seq.

This law provides that adult persons have the fundamental right to control decisions relating to

their own medical care. This right to control medical care includes the right to withhold

life-sustaining treatment in case of a terminal condition.

Any adult may make a declaration which would direct the withholding of life-sustaining

treatment in case of a terminal condition. Some people call this declaration a "living will."

The declaration must be:

1. In writing

2. Signed by the adult making the declaration

3. Dated and

4. Signed in front of two adult witnesses or notarized

There are specific rules set out in the law about the signature in case of an adult who cannot write.

There are specific rules about the adult witnesses. Relatives by blood or marriage, heirs, or people

who are responsible for paying for the medical care may not serve as witnesses. A declaration has

no effect during pregnancy. The declaration may be revoked in three ways:

1. By destroying the declaration

2. By signing and dating a written revocation and

3. By speaking an intent to revoke in front of an adult witness. The witness must sign and

date a written statement that the declaration was revoked.

Before the declaration becomes effective, two physicians must examine the patient and diagnose

that the patient has a terminal condition.

The desires of a patient shall at all times supersede the declaration. If a patient is incompetent, the

declaration will be presumed to be valid.

The Kansas Natural Death Act imposes duties on physicians and provides penalties for violations

of the laws about declarations.

The Kansas Durable Power of Attorney for Health Care Decisions Law, K.S.A.,

58-625 et seq.

A "durable power of attorney for health care decisions" (Power), is a written document in which

an adult gives another adult (called an "agent") the right to make health care decisions. The

Power applies to health care decisions even when the adult is not in a terminal condition. The

adult may give the agent the power to:

1. Consent or to refuse consent to medical treatment

2. Make decisions about donating organs, autopsies, and disposition of the body

3. Make arrangements for hospital, nursing home, or hospice care

4. Hire or fire physicians and other health care professionals or

5. Sign releases and receive any information about the adult

A Power may give the agent all those five powers or may choose only some of the powers. The

Power may not give the agent the power to revoke the adult's declaration under the Kansas

Natural Death Act ("living will"). The Power only takes effect when the adult is disabled unless

the adult specifies that the Power should take effect earlier.

The adult may not make a health care provider treating the adult the agent except in limited

circumstances.

The Power may be made by two methods:

1. In writing

a. Signed by the adult making the declaration

b. Dated

c. Signed in front of two adult witnesses

OR

2. Written and notarized

Relatives by blood or marriage, heirs, or people who are responsible for paying for the medical

care may not serve as witnesses.

The adult, at the time the Power is written, should specify how the Power may be revoked.

The Patient Self-Determination Act, Section 1902(w) of the Social Security Act

This federal law, codified at 42 U.S.C. Sec. 1396a(w), was effective December 1, 1991. It applies

to all Medicaid and Medicare hospitals, nursing facilities, home health agencies, hospices, and

prepaid health care organizations. It requires these organizations to take certain actions about a

patient's right to decide about health care and to make advance directives.

This law also requires that each state develop a written description of the State law about advance

directives. This description was written by the Health Care Policy Section of the Kansas

Department of Social and Rehabilitation Services to comply with that requirement. If you have

any questions about your rights to decide about health care and to make advance directives,

please consult with your physician or attorney. Third Edition: January 14, 2003