[Code of Federal Regulations]
[Title 42, Volume 3, Parts 430 to end]
[Revised as of October 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR489]

[Page 870-872]
TITLE 42--PUBLIC HEALTH

CHAPTER IV--HEALTH CARE
FINANCING ADMINISTRATION,
DEPARTMENT OF HEALTH AND
HUMAN SERVICES--(Continued)

PART 489--PROVIDER AGREEMENTS AND SUPPLIER APPROVAL--Table of Contents

Subpart I--Advance Directives

Source: 57 FR 8203, Mar. 6, 1992, unless otherwise noted.

Sec. 489.100 Definition.

For purposes of this part, advance directive means a written
instruction, such as a living will or durable power of attorney for health care,
recognized under State law (whether statutory or as recognized by the
courts of the State), relating to the provision of health care when the
individual is incapacitated.

Sec. 489.102 Requirements for providers.

(a) Hospitals, critical access hospitals, skilled nursing
facilities, nursing facilities, home health agencies, providers of home
health care (and for Medicaid purposes, providers of personal care
services), and 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 on the basis of 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 non-medical 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.

(b) The information specified in paragraph (a) of this section is
furnished:

(1) In the case of a hospital, at the time of the individual's
admission as an inpatient.

(2) In the case of a skilled nursing facility at the time of the
individual's admission as a resident.

(3)(i) In the case of a home health agency, in advance of the
individual coming under the care of the agency. The HHA may furnish
advance directives information to a patient at the time of the first
home visit, as long as the information is furnished before care is
provided.

(ii) In the case of personal care services, in advance of the
individual coming under the care of the personal care services provider.
The personal care provider may furnish advance directives information to
a patient at the time of the first home visit, as long as the
information is furnished before care is provided.

(4) In the case of a hospice program, at the time of initial receipt
of hospice care by the individual from the program.

(c) The providers listed in paragraph (a) of this section--

(1) Are not required to provide care that conflicts with an advance
directive.

(2) Are not required to implement an advance directive if, as a
matter of conscience, the provider cannot implement an advance directive
and State law allows any health care provider or any agent of such
provider to conscientiously object.

(d) Prepaid or eligible organizations (as specified in sections
1833(a)(1)(A) and 1876(b) of the Act) must meet the requirements
specified in Sec. 417.436 of this chapter.

(e) 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 provider 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 provider 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. 

[57 FR 8203, Mar. 6, 1992, as amended at 59 FR 45403, Sept. 1, 1994; 60
FR 33294, June 27, 1995; 62 FR 46037, Aug. 29, 1997; 64 FR 67052, Nov.
30, 1999]

 

 

 
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