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In early October, the Centers for Medicare and Medicaid Services (CMS) issued draft revised guidance to surveyors on the responsibility of SNFs to have policies and procedures, and to properly implement and honor advance directives (living wills, health care powers of attorney, the MOST form) of residents. There's good news and bad news in this.

The good news is that the N.C. long term care industry is far ahead of the curve on advance directives information. The N.C. Healthcare Facilities Association, working with our firm, has developed, distributed and trained on policies and procedures governing advance directives in SNFs in the last couple of years. The model policy we developed for the association is consistent with the expectations of CMS regarding end of life care planning and documentation, including advance directives. So, if you have obtained, implemented and are following that policy, you should be in great shape.

The bad news is that this revised guidance seems to signal a heightened focus on advance directives in SNFs. As with all recent CMS survey/enforcement guidance, the CMS October guidance on advance directives not only explains facility obligations regarding end of life care planning and options, but also directs surveyors about what to look for and how to survey for compliance with those obligations. Each facility should obtain this guidance and, in our opinion, train staff on it, paying particular attention to the examples CMS gives surveyors of the various scope and severity levels that should or may be assigned to various failures of the facility to properly educate about, plan for, assist residents with and implement advance directives.

The guidance identifies FTag 155 (entitled Advance Directives) as the primary tag for citations involving advance directives, but also directs surveyors to consider related citations at FTag 154 (right to be fully informed); FTag 242 (self-determination and participation in care); FTag 278 (accuracy of assessments); FTag 279 (care plans); FTag 289 (care plan revision); FTag 282 (care provided by qualified persons in accordance with plans of care); FTag 329 (unnecessary drugs); FTag 285 (physician supervision); FTag 501 (medical director requirements); and FTag 514 (clinical records).

Taken together, the inclusion of these FTags, and their corresponding federal regulations, signals CMS's expectation, as fully described in the October guidance, that end of life care planning and delivery must include:

In directing surveyors on how to select scope and severity classifications for violations of advance directive regulations and FTags, CMS says such violations never qualify as “no actual harm with potential for no more than minimal harm,” or severity level 1 in CMS parlance. So, all deficiencies will be scored at either harm level 2, no actual harm with potential for more than minimal harm (levels D, E or F on the grid); actual harm that is no immediate jeopardy (levels G, H or I on the grid); or immediate jeopardy (levels J, K or L on the grid).

Some examples CMS gives of immediate jeopardy deficiencies based on end of life care planning and delivery include:

Examples of a G level deficiency, or actual harm, include:

A level 2 harm situation would occur where facility staff are unaware of and/or have failed to document a resident's end of life care planning choices but no care inconsistent with those wishes has yet been delivered, or where a resident has expressed a desire to create an advance directive but has been offered no assistance in doing so and has no advance directive in place.

This guidance underscores the importance of incorporating end of life care planning, and ongoing review and updating of clinical records as residents' preferences change over time, into the normal care planning and care delivery process. The American Health Care Association is submitting comments on this draft surveyor guidance. We'll continue to monitor the progress of the guidance and report to you when it's final, and whether any significant changes are included in the final version.

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