Advance Directive Information. The Contractor must maintain written policies and procedures concerning advance directives which meet the requirements set forth in 42 CFR 422.128(a)-(b) and 42 CFR 489.102(a). Advance directives are defined in 42 CFR 489.100 as “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.” Written policies must include a clear and precise statement of limitation if the Contractor cannot implement an advance directive as a matter of conscience. Such statement must clarify any differences between institution-wide conscientious objections and those that may be raised by individual physicians, identify the state legal authority permitting such objection and describe the range of medical conditions or procedures affected by the conscience objection. Per 42 CFR 438.3(j), the Contractor must provide adult members with written information on advance directive policies, including a description of applicable state law. This information must reflect changes in State law as soon as possible, but no later than 90 days after the effective date of the change. Written information must include their rights under state law to make decisions concerning their medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives. This information must be provided at the time of initial enrollment. If the member is incapacitated at the time of initial enrollment and is unable to receive information or articulate whether or not he or she has executed an advance directive, the information may be given to the member’s family or surrogate. Once the member is no longer incapacitated or unable to receive such information, the Contractor must ensure the information is given to the individual directly at the appropriate time. Members must also be informed that complaints concerning noncompliance with the advance directive requirements may be filed with the State. See 42 CFR 422.128 for further information regarding these requirements. The Contractor is prohibited from conditioning the provision of care or otherwise discriminating against an individual based on whether or not the individual has executed an advance directive per 42 CFR 438.3(j)(1)-(2), 42 CFR 422.128(b)(1)(ii)(F) and 42 CFR 489.102(a)(3).
