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In a highly publicized recent case in California, a registered nurse working in an independent living facility refused to initiate cardiopulmonary resuscitation (CPR) on an elderly resident who was experiencing respiratory distress. The nurse refused to start CPR even when the 911 dispatcher begged her to start CPR or to find someone, even a bystander, who would do so. The nurse still refused, stating that the facility had a no-CPR policy at the time.

This case caused consternation among long term care providers around the country. In our own practice, we’ve had numerous requests to review skilled nursing facility (SNF) Do Not Resuscitate (DNR) and CPR policies because of this case.

On October 1, 2013, the Centers for Medicare & Medicaid Services (CMS) issued new surveyor and provider guidance on CPR/DNR policies and practices in SNFs that leaves no doubt about 1) an SNF’s obligations to provide CPR consistent with residents’ advance directives and 2) the requirement that SNFs have policies and procedures consistent with this requirement.

In the guidance, which is effective immediately, CMS makes clear the following:

  1. The resident has an advance directive declining CPR (including a valid DNR order)
  2. The resident has no advance directive, meaning that the facility should default to full care, including CPR, absent a directive by the resident or his/her legal surrogate declining CPR
  3. The resident evidences obvious signs of clinical death (i.e., rigor mortis, dependent lividity, decapitation, transaction, or decomposition)
  4. Initiating CPR could cause injury to the rescuer;

CMS further states that SNFs may not establish and implement facility-wide “no CPR” policies because this violates residents’ rights to formulate advance directives under FTag 155 and the federal Patient Self-Determination Act. CMS acknowledges that available data shows the rate of success from CPR in the elderly population is low, somewhere between 2% to 11%. However, CMS also notes that the SNF population is changing, with many more younger residents coming to SNFs for short-term therapy and rehabilitation. According to CMS, its 2012 Nursing Home Data Compendium shows that roughly one in seven SNF residents in 2011 were under the age of 65.

What Providers Should Do

In light of this new CMS guidance and the recent attention we’ve noted in surveys on end-of-life issues, SNFs should do the following:

Finally, for SNF providers who also have an adult care home or independent living unit or wing, remember that CMS regulates only those facilities that are certified for Medicare and/or Medicaid. So this new CMS guidance does not apply to noncertified adult care homes or independent living units. The requirements for CPR in those types of facilities are governed solely by state law.

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