WSR 00-14-065

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Medical Assistance Administration)

[ Filed July 5, 2000, 9:16 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-03-011.

Title of Rule: WAC 388-501-0125 Advance directives.

Purpose: To rewrite according to the principles in the Governor's Executive Order 97-02 on regulatory improvement.

Statutory Authority for Adoption: RCW 74.08.090 and 74.09.035.

Statute Being Implemented: 42 U.S.C. 1396a (w), 42 C.F.R. 417.436, 42 C.F.R. 489 Subpart I, and chapter 70.122 RCW.

Summary: This rule explains the responsibilities of agencies, HMOs, and facilities that provide care for medical assistance clients in regard to advance directives.

Reasons Supporting Proposal: To comply with the Governor's Executive Order 97-02 on regulatory improvement.

Name of Agency Personnel Responsible for Drafting: Leslie Saeger, P.O. Box 45533, Olympia, WA 98504, (360) 725-1347; and Implementation: Phyllis Coolen, P.O. Box 45506, Olympia, WA 98504, (360) 725-1347.

Name of Proponent: Department of Social and Health Services, Medical Assistance Administration, governmental.

Rule is necessary because of federal law, 42 U.S.C. 1396a (w), 42 C.F.R. 417.436, 42 C.F.R. 489 Subpart I.

Explanation of Rule, its Purpose, and Anticipated Effects: This rule implements state and federal law and federal regulations regarding advance directives, and includes requirements for providers to: Have policies and procedures concerning advance directives; provide information to clients; honor advance directives or tell clients or potential clients if their policies would keep them from doing so; educate staff and the community on issues concerning advance directives; and document in the client's file whether or not the client has executed an advance directive.

It also protects a health care practitioner from discrimination by the facility or organization for refusing to withhold or withdraw life-sustaining treatment.

Proposal Changes the Following Existing Rules: Updates and clarifies existing policy.

No small business economic impact statement has been prepared under chapter 19.85 RCW. There are no new requirements in this rule that will financially impact businesses.

RCW 34.05.328 does not apply to this rule adoption. The proposed amendments to not "make significant amendments to a policy or regulatory program" (see RCW 34.05.328 (5)(c)(iii)).

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on August 8, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kelly Cooper, Rules Coordinator, by August 1, 2000, phone (360) 664-6094, TTY (360) 664-6178, e-mail coopeKD@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Kelly Cooper, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by August 8, 2000.

Date of Intended Adoption: No sooner than August 9, 2000.

June 30, 2000

Edith M. Rice, Chief

Office of Legal Affairs

2786.1
AMENDATORY SECTION(Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-501-0125
((Requirements for)) Advance directives.

(((1) Each hospital, nursing facility, provider of home health care or personal care services, hospice program, or health maintenance organization receiving Medicaid funds shall as providers under this section:

(a) Maintain written policies and procedures concerning a person's right to make medical decisions including advance directives;

(b) Provide written information to all adults as defined in RCW 26.28.010 and 26.28.015 receiving medical care by or through the provider or organization to include the person's right to:

(i) Make decisions concerning the person's medical care;

(ii) Accept or refuse surgical or medical treatment; and

(iii) Formulate advance directives.

(c) Provide written information to all adults on policies concerning implementation of these rights;

(d) Document in the person's medical record whether or not the person has executed an advance directive;

(e) Not condition the provision of care or otherwise discriminate against a person based on whether or not the person has executed an advance directive;

(f) Ensure compliance with the requirements of chapters 11.94, 68.50, and 70.122 RCW concerning advance directives.

(g) Provide for educating staff and the community on the requirements for advance directives.

(2) For the purpose of this section, the term "advance directive" means a voluntarily written instruction, such as a living will, durable power of attorney for health care, or anatomical gift recognized under state law (whether statutory or as recognized by the courts of the state) and relating to the provision of such care when the person is incapacitated.

(3) The written material distributed by the providers as defined concerning medical decision making shall summarize state law found in statute and case law and may include the actual law, copies of the statute, case law, or forms.

(4) The provider as defined shall give information concerning these rights to adults as follows:

(a) Hospitals at the time of the person's admission as an inpatient;

(b) Nursing facility at the time of the person's admission as a resident;

(c) Provider of home health care or personal care services before the person comes under the care of the provider;

(d) Hospice program at the time of the initial receipt of hospice care by the person in the program; and

(e) Health maintenance organization at the time of enrollment of the person with the organization.

(5) This section shall not be construed to require any physician to implement an advance directive, when the physician objects on the basis of conscience. When the physician refuses to implement the directive, the physician shall make a good faith effort to transfer the person to another physician who will implement the person's directive.

(6) When a person in a comatose or otherwise incapacitated state, unable to receive information or to say whether an advance directive has been executed, comes under the care of a provider, the provider shall include information concerning advance directives with materials about the provider's policies and procedures to the families or to the surrogates or other concerned persons of the incapacitated person as specified under RCW 7.70.065. The provider shall be obligated to provide this information to the person once the person is no longer incapacitated.

(7) When a person is incapacitated or otherwise unable to receive information or articulate whether such person has executed an advance directive and no one comes forward with a previously executed advance directive, the provider shall document in a person's file that the person was unable to receive information and was unable to communicate whether an advance directive exists.

(8) When the patient or a relative, surrogate, or other interested person presents the provider with a copy of the person's advance directive, the provider shall comply, except as specified under subsection (5) of this section, with the advance directive)) In this section "advance directive" means a written instruction, recognized under state law, relating to the provision of health care when an individual is incapacitated.

(1) All agencies, health maintenance organizations (HMOs), and facilities including hospitals, critical access hospitals, skilled nursing and nursing facilities, and providers of in-home care services that serve medical assistance clients eighteen years of age or older must have written policies and procedures concerning advance directives.

(2) The agencies, HMOs, and facilities must give the following information to each adult client, in writing and orally, and in a language the client understands:

(a) A statement about the client's right to:

(i) Make decisions concerning the client's medical care;

(ii) Accept or refuse surgical or medical treatment;

(iii) Execute an advance directive;

(iv) Revoke an advance directive at any time;

(b) The written policies of the agency, HMO, or facility concerning advance directives, including any policy that would preclude it from honoring the client's advance directive; and

(c) The client's rights under state law.

(3) The agencies, HMOs, and facilities must provide the information described in subsection (2) of this section to adult clients as follows:

(a) Hospitals at the time the client is admitted as an inpatient;

(b) Nursing facilities at the time the client is admitted as a resident;

(c) Providers of in-home care services before the client comes under the care of the provider or at the time of the first home visit so long as it is provided prior to care being rendered;

(d) Hospice programs at the time the client initially receives hospice care from the program; and

(e) HMOs at the time the client enrolls with the organization.

(4) If the client is incapacitated at the time of admittance or enrollment and is unable to receive information or articulate whether or not the client has executed an advance directive, the agencies, HMOs, and facilities:

(a) May give the information described in subsection (2) to the person authorized by RCW 7.70.065 to make decisions regarding the client's health care;

(b) Must document in the client's file that the client was unable to communicate whether an advance directive exists if no one comes forward with a previously executed advance directive; and

(c) Must give the information described in subsection (2) to the client once the client is no longer incapacitated.

(5) The agencies, HMOs, and facilities must:

(a) Review each client's medical record prior to admittance or enrollment to determine if the client has an advance directive;

(b) Honor the directive or follow the process explained in subsection (6); and

(c) Not refuse, put conditions on care, or otherwise discriminate against a client based on whether or not the client has executed an advance directive.

(6) If an agency, HMO, or facility has a policy or practice that would keep it from honoring a client's advance directive, the facility or organization must:

(a) Tell the client prior to admission or enrollment or when the client executes the directive;

(b) Provide the client with a statement clarifying the differences between institution-wide conscience objections and those that may be raised by individual physicians and explaining the range of medical conditions or procedures affected;

(c) Prepare and keep a written plan of intended actions according to the requirements in RCW 70.122.060 if the client still chooses to retain the facility or organization; and

(d) Make a good faith effort to transfer the client to another health care practitioner who will honor the directive if the client chooses not to retain the facility or organization.

(7) A health care practitioner may refuse to implement a directive, and may not be discriminated against by the facility or organization for refusing to withhold or withdraw life-sustaining treatment.

(8) The agencies, HMOs, and facilities must document, in a prominent place in each client's medical record, whether or not the client has executed an advance directive.

(9) The agencies, HMOs, and facilities must educate staff and the community on issues concerning advance directives.

(10) The agencies, HMOs, and facilities must comply with state and federal laws and regulations concerning advance directives, including but not limited to: 42 USC 1396a, subsection (w); 42 CFR 417.436; 42 CFR 489 Subpart I; and chapter 70.122 RCW.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-501-0125, filed 5/3/94, effective 6/3/94. Formerly WAC 388-81-017.]

Washington State Code Reviser's Office