Advance Directives — Health Hippo

US CODE || CFR || CASES || CONGRESSIONAL RECORD || BILLS || FEDERAL REGISTER

Life is short, and Art long; the crisis fleeting; experience perilous, and decision difficult.

Chances are, a government death panel is not going to make end of life
decisions for you. Making your own end of life decisions before you are incapacitated eases the burden
on loved ones and health care providers alike. Advance directives are simple living wills and
powers of attorney, but your plan might also include hospice care, wills, trusts, gifts, reverse mortgages, burial arrangements, viatical settlements and the like.

U.S. Code

The Patient Self-Determination Act
Affordable Care Act
- Sec. 1553. Prohibition against discrimination on assisted suicide.
Balanced Budget Act
- Sec. 4641 Placement of advance directive in medical record.
Health Insurance Portability and Accountability Act
- Sec. 331. Treatment of accelerated death benefits by recipient.
- Sec. 332. Tax treatment of companies issuing qualified accelerated death benefit
  riders.
42 U.S. Code Sec. 1395cc(f)(1)(B) Agreements with providers of services; enrollment processes.
42 U.S. Code Sec. 14406 Clarification with respect to advance directives.
10 U.S. Code Sec. 1044c Advance medical directives of members and dependents: requirement for recognition by States.

Code of Federal Regulations

22 CFR PART 72 DEATHS AND ESTATES
- Sec. 72.30 Provisions in a Will or Advanced Directive Regarding Disposition of Remains.
42 CFR PART 422 SUBPART C, BENEFITS AND BENEFICIARY PROTECTIONS
- Sec. 422.128 Information on advance directives.
42 CFR PART 431 STATE ORGANIZATION AND GENERAL ADMINISTRATION
- Sec. 431.20 Advance directives.
42 CFR PART 489 SUBPART I, ADVANCE DIRECTIVES

Cases

In the Case of Covenant VNA Hospice (MAC 2011) (the medical documentation, overall, indicates a gradual decline in the beneficiary’s condition such that the criteria in Part II and Part III of the applicable LCD were substantially met)
In the Case of Solari Hospice Care, LLC (MAC 2011) (the evidence demonstrates the beneficiary had a serious decline in clinical status, before, during, and after the dates of service at issue, and therefore Medicare coverage is appropriate for the hospice services provided by the appellant)
In the Case of Continuum Hospice Care (MAC 2009) (the provided hospice services did not meet the certification requirements as the receipt of verbal certification from the attending physician was not documented by either a written or electronic signature by the person purported to receive the verbal certification)
In the Case of Innovative Hospice Care (MAC 2009) (while fully favorable determinations for other dates of service do not resolve the coverage issue for the dates of service on appeal, upon review of the applicable local coverage determination, the evidence satisfies the conditions for coverage of hospice services provided to the beneficiary for the dates of service at issue)
Washington v. Glucksberg, 521
U.S. 702 (1997)(Washington’s prohibition against causing or aiding a suicide does not violate the Due
Process Clause)
Quill v. Vacco, 521 U.S.
793 (1997)(NY statute prohibiting physician-assisted suicide violates Equal Protection Clause)
SEC v. Life
Partners Inc, (1996)(SEC cannot regulate viatical settlements – investment
contracts where an investor acquires an interest in the life insurance policy of a terminally ill
person)
Compassion in
Dying v. State of Washington, (1996)(striking down decision barring physician
assisted suicide).
Cruzan v. Director, Mo.
Dept. of Health, 497 U.S. 261 (1990)(U.S. Constitution does not forbid Missouri to require that
evidence of an incompetent’s wishes as to the withdrawal of life-sustaining treatment be proved by
clear and convincing evidence)
In Re
AC 573 A.2d 1235 (1990)(if patient is incompetent or otherwise unable to give an informed
consent to a proposed course of medical treatment, then her decision must be ascertained through
substituted judgment)
Bouvia v. Superior
Court 179 Cal. App. 3d 1127 (1986)(Petitioner has a right to refuse the increased
dehumanizing aspects of her condition created by the insertion of a permanent tube through her
nose and into her stomach)
In Re
Quinlan 355 A.2d 647 (1976)(if there is no reasonable possibility of emerging from a
comatose condition to a cognitive, sapient state, the present life-support system may be
withdrawn and said action shall be without any civil or criminal liability)

Reports

National Suicide Prevention Lifeline 24-hour, toll-free, confidential suicide prevention hotline available to anyone in suicidal crisis or emotional distress. By dialing 1-800-273-TALK (8255), the call is routed to the nearest crisis center in a national network of more than 150 crisis centers.
Palliative Care Articles From the National Center for Biotechnology Information, U.S. National Library of Medicine.
Clinical Trials: Palliative Care Brief overview of clinical research, information for potential clinical study participants, and a glossary of common words.
Palliative Care in Cancer (NCI 2014) Hospitals, cancer centers, and long-term care facilities provide palliative care. Patients may also receive it at home. Physicians and local hospitals can provide the names of palliative care or symptom management specialists.
Last Days of Life (NCI 2014) This summary discusses care during the last days and last hours of life, including treatment of common symptoms and ethical questions that may come up. It may help patients and their families prepare for the kinds of decisions that may be needed during this time.
Pain Control: Support for People with Cancer (NCI 2014) How to work with your doctors, nurses, and others to find the best way to control your pain. Discusses causes of pain, medicines, how to talk to your doctor, and other topics that may help you.
MedPac: Hospice Services Payment System The Medicare hospice benefit covers a broad set of palliative services for beneficiaries who have a life expectancy of six months or less, as determined by their physician. Beneficiaries who elect the Medicare hospice benefit agree to forgo curative treatment for their terminal condition. For conditions unrelated to their terminal illness, Medicare continues to cover items and services outside of hospice. Typically, hospice care is provided in patients’ homes, but hospice services may also be provided in nursing facilities and other inpatient settings.
Medicare Hospice: Use of General Inpatient Care (OIG 2013) Hospice general inpatient care (GIP) is for pain control or symptom management provided in an inpatient facility that cannot be managed in other settings. The care is intended to be short-term and is the second most expensive level of hospice care.
Palliative Care: Conversations Matter (NIH 2013) The National Institute of Nursing Research (NINR), a part of the National Institutes of Health, developed the Palliative Care: Conversations Matter® campaign to raise awareness of pediatric palliative care and to help health care professionals and patients discuss palliative care earlier.
Palliative Care: The Relief You Need When You’re Experiencing the Symptoms of Serious Illness (NIH 2011) The purpose of palliative care is to address distressing symptoms such as pain, breathing difficulties or nausea, among others. Receiving palliative care does not necessarily mean you’re dying.
VA: Geriatrics and Extended Care Hospice is a comfort based form of care for Veterans who have a terminal condition with 6 months or less to live. Palliative care is a form of treatment that emphasizes comfort care but does not require the Veteran have a terminal condition.
FTC: Reverse Mortgages In a “reverse” mortgage, you receive money from the lender, and generally don’t have to pay it back for as long as you live in your home. The loan is repaid when you die, sell your home, or when your home is no longer your primary residence. The proceeds of a reverse mortgage generally are tax-free, and many reverse mortgages have no income restrictions.
SEC: Viatical Settlements A viatical settlement allows you to invest in another person’s life insurance policy. With a viatical settlement, you purchase the policy (or part of it) at a price that is less than the death benefit of the policy. When the seller dies, you collect the death benefit.
Life Insurance Settlements: Regulatory Inconsistencies May
Pose a Number of Challenges (GAO 2010) This report addresses how the life settlement market is organized and regulated, and what challenges policy owners, investors, and others face in connection with life settlements.
Medicare Hospice Care for Beneficiaries in Nursing Facilities: Compliance With Medicare Coverage Requirements (OIG 2009) The Medicare hospice benefit allows a beneficiary with a terminal illness to forgo curative treatment for the illness and instead receive palliative care. The number of beneficiaries receiving hospice care has increased significantly in recent years, and some studies suggest that the use of hospice care has grown most rapidly in nursing facilities.
Medicare Hospice Care: Services Provided to Beneficiaries Residing in Nursing Facilities (OIG 2009) In this evaluation, we found that 31 percent of Medicare hospice beneficiaries resided in nursing facilities in 2006. Medicare paid $2.59 billion for their hospice care, at an average of $960 per week for each hospice beneficiary residing in a nursing facility. Hospices most commonly provided nursing, home health aide, and medical social services. They furnished an average of 4.2 visits per week for these three services combined. They also commonly provided drugs.
Hospice Beneficiaries’ Use of Respite Care (OIG 2008)
We found that 2 percent of all hospice beneficiaries received respite care during 2005. Most of these beneficiaries received respite care for a total of 5 days or less. We also found a number of instances in which the use of respite care may have been inappropriate. Fifty-four beneficiaries received respite care longer than the 5 consecutive days allowed by Federal regulations and 62 beneficiaries received respite care while residing in nursing facilities, contrary to Federal requirements.
End-Of-Life Care: Key Components Provided by Programs in Four States (GAO 2007) Approximately 28 percent of all Medicare spending in 1999 was used to provide care for beneficiaries in the last year of their lives.
Medicare Hospice Care: A Comparison of Beneficiaries in Nursing Facilities and Beneficiaries in Other Settings (OIG 2007) This study describes the characteristics of Medicare hospice beneficiaries who resided in nursing facilities in 2005 and compares this population to Medicare hospice beneficiaries who resided in other settings.
Medicare Hospices: Certification and Centers for Medicare & Medicaid Services Oversight (OIG 2007) Eighty-six percent of hospices were certified within 6 years, as required, while 14 percent averaged 3 years past due. Hospices that were 3 years past due for certification had not been surveyed for
9 years—3 years longer than the CMS standard at the time of our review.
More Beneficiaries Use Hospice; Many Factors Contribute to Shorter Periods of Use (GAO 2000) GAO discussed issues related to the use of Medicare’s hospice benefit, focusing on: (1) the patterns and trends in hospice use by Medicare beneficiaries; (2) factors that affect the use of the hospice benefit; and (3) the availability of hospice providers.
Suicide Prevention: Efforts to Increase Research and Education in Palliative Care (GAO 1998) Report on the extent to which projects under section 781 of the Public Health Service Act have furthered the knowledge and practice of palliative care, particularly with regard to curricula offered and used in medical schools.
Fraud and Abuse In Nursing Home Arrangements with Hospices (OIG 1998) Focuses on the interrelationship between the hospice and nursing home industries and describes some potentially illegal practices the OIG has identified in arrangements between these providers.
Medicare Hospice Beneficiaries: Services and Eligibility (OIG 1998) Hospice services are intended to provide comfort and relief from pain, as opposed to curative care. To elect hospice care under Medicare, a beneficiary must be eligible for Part A Medicare. Beneficiaries must also be certified by a physician as being terminally ill, with a life expectancy of 6 months or less if an illness runs its normal course.
Hospice and Nursing Home Contractual Relationships (OIG 1997) For nursing home patients who are dually entitled to Medicare and Medicaid and who choose the hospice benefit, Medicaid pays the hospice for the patient’s room and board, (no less than 95 percent of the Medicaid daily rate), and Medicare pays the hospice for the hospice benefit. The hospice then pays the nursing home for daily care, and, depending on the arrangement made between the hospice and the nursing home, for other services as well.
Hospice Patients in Nursing Homes (OIG 1997) Nursing home hospice patients received nearly 46 percent fewer nursing and aide services from hospice staff than hospice patients living at home. Three out of four patients received only basic nursing and aide visits. Many of these services were also provided by the nursing home staff when hospice staff were not present. Yet, hospices get paid the same amount for nursing home patients as they receive for patients living at home.
Patient Self-Determination Act: Providers Offer Information on Advance Directives but Effectiveness Uncertain (GAO 1995) GAO provided information on the implementation of the
Patient Self-Determination Act (PSDA), and the effectiveness of Advance directives in ensuring a patient’s desired care.
Patient Advance Directives: Early Implementation Experience (OIG 1993) On November 5, 1990 the Congress enacted advance directive provisions as part of the OBRA-90. These provisions, however, became effective December 1, 1991. The intent of this law is to provide an opportunity for adult patients to express their desires about medical treatment in a variety of settings. An additional intent is to educate the entire population on advance directives such as living wills and the durable power of attorney for health care.
Patient Advance Directives: Facility and Patient Responses (OIG 1993) Concerns have been rased about the impact of the advance diective provisions. Some concerns involve whether the provisions wil result in grter involvement of individuals in heath care decisions. Additional concerns addrssed patient understadig of materials as well as their importce. Finaly, concerns were raed that patients could be incon-ectly inormed of their rights or make unrsoned decisions due to introducing inormation at admission, often a tie of turmoil.