CMS SOM App. M, Tag L503

489 of this chapter regarding advance directives. The hospice must inform and

distribute written information to the patient concerning its policies on advance

directives, including a description of applicable State law.

Interpretive Guidelines §418.52(a)(2)

Advance directives generally refer to written statements or instructions, completed in

advance of a serious illness, about how an individual wants medical decisions made. The

two most common forms of advance directives are a living will and a durable medical

power of attorney for health care. It is the patient’s right to formulate an advance

directive should he/she wish to do so. The patient’s desire not to formulate an advance

directive, nor the contents of an advance directive should not affect admission to hospice.

There may be State specific requirements for advance directives that the hospice must

follow.

The hospices’ obligations under 42 CFR 489.102 include the following requirements:

Hospices must maintain written policies and procedures concerning advance directives

with respect to all adult individuals receiving medical care by or through the provider and

are required to:

(1) Provide written information to such individuals concerning:

(i) An individual's rights under State law (whether statutory or recognized by the

courts of the State) to make decisions concerning such 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. Providers are

permitted to contract with other entities to furnish this information but are still

legally responsible for ensuring that the requirements of this section are met.

Providers are to update and disseminate amended information as soon as

possible, but no later than 90 days from the effective date of the changes to

State law; and

(ii) The written policies of the provider or organization respecting the implementation

of such rights, including a clear and precise statement of limitation if the

provider cannot implement an advance directive based on conscience. At a

minimum, a provider's statement of limitation should:

(A) Clarify any differences between institution-wide conscience objections and

those that may be raised by individual physicians;

(B) Identify the state legal authority permitting such objection, and

(C) Describe the range of medical conditions or procedures affected by the

conscience objection.

(2) Document in a prominent part of the individual's current medical record, or patient

care record in the case of an individual in a religious nonmedical health care

institution, whether or not the individual has executed an advance directive;

(3) Not condition the provision of care or otherwise discriminate against an individual

based on whether or not the individual has executed an advance directive;

(4) Ensure compliance with requirements of State law (whether statutory or recognized

by the courts of the State) regarding advance directives. The provider must inform

individuals that complaints concerning the advance directive requirements may be

filed with the State survey and certification agency;

(5) Provide for education of staff concerning its policies and procedures on advance

directives, and

(6) Provide for community education regarding issues concerning advance directives that

may include material required in paragraph (a)(1) of this section, either directly or in

concert with other providers and organizations. Separate community education

materials may be developed and used, at the discretion of providers. The same

written materials do not have to be provided in all settings, but the material should

define what constitutes an advance directive, emphasizing that an advance directive

is designed to enhance an incapacitated individual's control over medical treatment,

and describe applicable State law concerning advance directives. A provider must

be able to document its community education efforts.

Hospices must furnish this information to the patient at the time of initial receipt of

hospice care by the individual from the hospice. Hospices:

1. Are not required to provide care that conflicts with an advance directive; and

2. Are not required to implement an advance directive if, as a matter of conscience, it

cannot implement an advance directive and State law allows the hospice to

conscientiously object.

If an adult individual is incapacitated at the time of admission or at the start of care and is

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, then the hospice

may give advance directive information to the individual's family or surrogate in the

same manner that it issues other materials about policies and procedures to the family of

the incapacitated individual or to a surrogate or other concerned persons in accordance

with State law. The hospice is not relieved of its obligation to provide this information to

the individual once he or she is no longer incapacitated or unable to receive such

information. Follow-up procedures must be in place to provide the information to the

individual directly at the appropriate time.

Compliance with the advance directives requirements is necessary for continued

participation in the Medicare and Medicaid programs.