September, 1998

Information Bulletin 98-4
NH-23
HOSP-9
MHC-5

Federal Law Regarding Advance Directives

Note: This Information Bulletin supersedes Information Bulletin 96-2. The document on "Questions and Answers Regarding Minnesota Law on Advance Directives" has been updated and is now available in Regular Print and Large Print versions.

Questions and Answers Regarding Advance Directives--Regular Print Version

Questions and Answers Regarding Advance Directives--Large Print Version

The Patient Self-Determination Act (PSDA) is a federal law passed by Congress in 1990 which requires providers to inform all adult patients about their rights to accept or refuse medical or surgical treatment and the right to execute an "advance directive." An "advance directive" is a written instruction such as a living will or durable power of attorney for health care recognized under state law relating to the provision of health care when the individual is incapacitated.

The PSDA and the final rule require you to:

Give written information to all adults receiving services of their rights under State law to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and to formulate advance directives. In November, 1991, the Minnesota Department of Health (Department) provided a uniform description of Minnesota law on advance directives entitled "Questions and Answers Regarding Minnesota Law on Advance Directives" to be used by providers in meeting the requirement to provide a description of state law concerning advance directives. This mailing includes a revised description based on 1998 Minnesota law.

You must begin using this revised description no later than January 1, 1999. ALL MEDICAID PROVIDERS MUST DISTRIBUTE THIS WRITTEN DESCRIPTION OF STATE LAW. You may reprint or reformat the material and you may supplement it with written material of your own. YOU MAY NOT CHANGE THE CONTENT OF THE WRITTEN DESCRIPTION OF THE WRITTEN DESCRIPTION OF STATE LAW.

The PSDA and the final regulations specifically mandate the use of the State-developed description of state law to be distributed by Medicaid providers. Medicare-only providers are also required to provide a description of state law but may provide their own description instead of the one provided with this bulletin. The Department suggests the use of the State-developed description by Medicare-only providers for uniformity among providers.

The written information must be provided to an individual upon each admission to a medical facility and each time an individual comes under the care of a home health agency, personal care provider, or hospice. If the patient is incapacitated at the time of admission and is unable to receive information or articulate whether he or she has executed an advance directive, the provider should give advance directive information to the patient's family or surrogate. The provider still must provide this information to the patient once he or she is no longer incapacitated or unable to receive such information.

Maintain written policies and procedures concerning advance directives for all adults receiving care or services and inform the individual, in writing, of these policies. The policies must include a clear and precise explanation of any objection a provider or provider's agent may have, on the basis of conscience, to honoring an individual's advance directive. The provider's statement of limitation, if any, should:

1. Clarify any differences between institution-wide conscience objections and those that may be raised by individual physicians;

2. Identify the State legal authority permitting such objection; and

3. Describe the range of medical conditions or procedures affected by the conscience objection.

Only those conscience objections permitted under State law may be included in the policy. The Department is unable to give specific guidance on conscience objections permitted under State law because the law is not clear on the extent to which a provider can object to an advance directive on the basis of conscience. The Minnesota living will statute states that providers must comply with a living will to the fullest extent possible, consistent with reasonable medical practice and other applicable law, or comply with the notice and transfer provisions of sections 145B.06 and 145B.07. The statute allows providers to decline to comply with the terms of a living will but the permissible reasons for declining are not set forth. The health care power of attorney statute requires providers to provide the directed health care to the extent the provider is capable, and if unable or unwilling, to transfer the individual to another health care provider willing to provide the care.

The Minnesota Constitution, Article I, Section 16 provides for the exercise of freedom of conscience. This provision has been construed by Minnesota courts generally to apply to matters of religion. Since this provision has not been construed by the Minnesota Supreme Court in a case involving a conscience objection to advance directives, it is not clear the extent to which a provider could rely on this constitutional provision. The Department suggests that providers consult with their own legal counsel for advice on whether a particular conscience objection is permitted under state law.

Document in the medical record whether or not an individual has executed an advance directive.

Inform individuals that they may file a complaint with the Department concerning a provider's noncompliance with advance directive requirements. Complaints may be directed to the Office of Health Facility Complaints at 651-201-4299 or 1-800-369-7994.

Home health agencies must notify clients that the toll-free home health hotline can be used for complaints regarding advance directives. The hotline number is 1-800-369-7994.

Not discriminate against an individual based on whether he or she has executed an advance directive. This means specifically that the provider cannot condition the provision of care or otherwise discriminate against the individual based on whether an advance directive has been executed.

Ensure compliance with requirements of State law regarding advance directives.

Provide staff and community education on advance directives. This education must minimally include what an advance directive is, 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.

The Patient Self-Determination Act, 42 U.S.C. §§ 1395cc(f)(1), 1396a(w)(1) and the Health Care Financing Administration's final rule, published in the Federal Register, Vol. 60, No. 123, pp. 33262-33294, should be consulted for the exact requirements of the law on advance directives.

Any questions on this bulletin should be directed in writing to:

Health Regulation Division Director
Minnesota Department of Health
85 East Seventh Place
P.O. Box 64900
St. Paul, Minnesota 55164-0900.