The Duty to Counsel

The Patient Self-Determination Act of 1990 requires health care providers to counsel patients about the use of living wills, advance directives, and powers of attorney to consent to medical care.[72]

(1)

...[T]he requirement of this subsection is that a provider of services or prepaid or eligible organization (as the case may be) maintain written policies and procedures with respect to all adult individuals receiving medical care by or through the provider or organization--

(A)

to provide written information to each such individual concerning--

(i)

an individual's rights under State law (whether statutory or as 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 advance directives (as defined in paragraph (3), and

(ii)

the written policies of the provider or organization respecting the implementation of such rights;

(B)

to document in the individual's medical record whether or not the individual has executed an advance directive;

(C)

not to condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive;

(D)

to ensure compliance with requirements of State law (whether statutory or as recognized by the courts of the State) respecting advance directives at facilities of the provider or organization; and

(E)

to provide (individually or with others) for education for staff and the community on issues concerning advance directives. Subparagraph (C) shall not be construed as requiring the provision of care which conflicts with an advance directive.

(2)

The written information described [above] shall be provided to an adult individual--

(A)

in the case of a hospital, at the time of the individual's admission as an inpatient,

(B)

in the case of a skilled nursing facility, at the time of the individual's admission as a resident,

(C)

in the case of a home health agency, in advance of the individual coming under the care of the agency,

(D)

in the case of a hospice program, at the time of initial receipt of hospice care by the individual from the program, and

(E)

in the case of an eligible organization ... [HMOs and certain other managed care providers] at the time of enrollment of the individual with the organization.

(3)

In this subsection, the term "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) and relating to the provision of such care when the individual is incapacitated. (1395cc(f))

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