Health Care Directives

Background

Inpatient hospitals, NFs, SNFs, providers of home health and personal care services, hospice programs, and managed care plans are required by Federal and State law to inform all adult patients about their rights to accept or refuse medical or surgical treatment, and the right to execute a Health Care Directive. Out-of-state providers must comply with all terms of this section and follow laws of the state in which the provider is located.

Requirements

Inpatient hospitals, NFs, SNFs, providers of home health and personal care services, hospice programs, and managed care plans must maintain written policies and procedures and:

  1. Give updated, written information to all patients about their rights under State law to make decisions concerning their medical care, including the right to accept or refuse medical or surgical treatment and to execute a Health Care Directive. Providers may contract with other entities to furnish this information but are still legally responsible for ensuring this requirement;
  2. Give written information to patients regarding the provider’s policies and procedures concerning implementation of these rights, including a clear and precise statement of limitation if the provider cannot implement a Health Care Directive on the basis of conscience. At a minimum, the provider’s statement of limitation should:
  1. Clarify any differences between institution-wide conscientious 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 conscientious objection.
  1. Within limited circumstances, only if allowed under State law, a facility or physician may conscientiously object to a Health Care Directive. If State law is silent regarding conscientious objection, the facility or physician may not conscientiously object to a Health Care Directive that is permissible in that state;
  2. Document in the patient’s medical record whether or not the patient has executed a Health Care Directive;
  3. Shall not condition the provision of care, or otherwise discriminate against the patient, based on whether or not the patient has executed a Health Care Directive, including not conditioning the provision of care on that basis;
  4. Comply with State law governing Health Care Directives; and
  5. Provide for educational campaigns, individually or with other providers and organizations, to educate staff and the community on issues concerning Health Care Directives. This requirement may be met by making copies of the required documents available in reception areas.

Providers are encouraged to work with associations and advocacy groups to further educate the community on these issues. Providers must be able to document their community education efforts.

When Providers Must Inform Patients

In accordance with Federal law, written information on State laws regarding the patient’s right to make decisions and the provider’s policies concerning implementation of those rights must be given by the following providers at the following times:

  1. Inpatient hospitals, at the time of the individual’s admission as an inpatient
  2. NFs, at the time of the individual’s admission as a resident
  3. Home health or personal care services providers, in advance of the individual coming under the care of the provider (this means on or before the initial visit)
  4. Hospice programs, at the time of the individual’s initial receipt of hospice care
  5. MCOs (PrimeWest Health), at the time the individual enrolls with the organization

Patient Incapacity

If a patient is incapacitated at one of the above times, and if the provider issues materials about policies and procedures to families, surrogates, or other concerned persons, the provider must include in those materials the information concerning Health Care Directives. The provider must document in the medical record that the patient was unable to receive the information and/or was unable to articulate whether he/she has executed a Health Care Directive. Once the patient is no longer incapacitated, the provider must give the information on Health Care Directives to the individual. Follow-up procedures must be in place to provide the information to the individual directly at the appropriate time.

Executed Health Care Directives

The provider must document in the patient’s medical record whether or not the patient has executed a Health Care Directive. If the patient has a Health Care Directive, and the provider has been given a copy, the provider must comply with the terms of the Health Care Directive, to the extent allowed under State law.

Objection Based on Conscience

Federal law does not affect the rights a provider may have under State law to object, based on conscience, to the treatment or withdrawal of a Health Care Directive.

Informed Consent

Federal law does not affect a provider’s obligation to obtain informed consent to treatment.

Forms Available

Although providers are not required by law to assist patients in formulating Health Care Directives, providers may wish to have copies of the Minnesota Health Care Declaration (living will) form or the Durable Power of Attorney for Health Care form available for patients who request one. The Minnesota Health Care Directive suggested form is found in MN Stat. Chap. 145C. The Minnesota Health Care Directives form can also be found on our website.

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Updated_02/12/2021