Advance Directives
Provider Type
- Physicians
- Participating Physician Groups (PPG)
- Hospitals
- Ancillary
The federal Patient Self-Determination Act (PSDA) applies to all Medicare providers and states that any health care facility that participates in Medicare or Medicaid programs must inquire about a member having completed an advance directive. This law also requires health care providers to educate their staff and community about the importance of advance directives. Providers should consider discussing advance directives during routine office visits with Health Net members, instead of waiting until a member is acutely ill.
Health Net and its participating providers are required to comply with the PSDA for all new and renewing members. Health Net's policy is that any adult member has the right to make an advance directive concerning health issues. Additionally, in accordance with Title 22 of the California Code of Regulations and 422.128(b)(1)(ii)(E) of the Code of Federal Regulations, providers must document in a prominent place in the member's medical records (adult members only), whether the member has been informed of, or has executed, an advance directive.
An advance directive is a written document signed by a member, such as a durable power of attorney for health care (DPAHC), a declaration pursuant to the Natural Death Act, or a living will that explains the member's wish concerning a given course of medical care should a situation arise where they are unable to make these wishes known. The member may specify guidelines for care or delegate the decision-making authority to a family member, close friend, or other representative.
According to AB 2805 (ch.579, 2006), a written advance health care directive is legally sufficient if all the following requirements are satisfied:
- The advance directive contains the date of its execution
- The advance directive is signed either by the member or in the member's name by another adult in the member's presence and at the member's direction
- The advance directive is either acknowledged before a notary public or signed by at least two witnesses who satisfy the requirements of Sections 4674 and 4675 of the California Probate Code
- If the advance directive is acknowledged before a notary public, and a digital signature is used, the digital signature must meet all of the following requirements:
- It either meets the requirements of Section 16.5 of the Government Code and Chapter 10 (commencing with Section 22000) of Division 7 of Title 2 of the California Code of Regulations, or the digital signature uses an algorithm approved by the National Institute of Standards and Technology
- It is unique to the person using it
- It is capable of verification
- It is under the sole control of the person using it
- It is linked to data in such a manner that if the data are changed, the digital signature is invalidated
- It persists with the document and not by association in separate files
- It is bound to a digital certificate
For additional information on Advance Directive, refer to the member's Evidence of Coverage (EOC).
Medicare Advantage Responsibilities and Procedures
Health Net Medicare Advantage (MA) responsibilities for advance directives include:
- Providing written information to all adult members (both Medicare and non-Medicare) at the time of enrollment concerning their rights under California 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, such as living wills or durable powers of attorney for health care (DPAHC)
- If a member is incapacitated at the time of initial enrollment and is unable to receive information (due to the incapacitating condition, a mental disorder, or inability to articulate whether the member has executed an advance directive), Health Net MA may give advance directive information to the member's family or surrogate. Follow-up must be performed to ensure that once the member is no longer incapacitated, the information is delivered directly to the member in a timely manner
- If a member submits an advance directive directly to Health Net MA, it must be forwarded to the member's participating physician group (PPG), primary care physician (PCP), or attending physician
- Health Net MA must not condition the provision of care, or otherwise discriminate, on the basis of whether a member has executed an advance directive
- Health Net monitors PPGs to ensure compliance with requirements of state law respecting advance directives
- Health Net is a Medicare Advantage Organization (MAO) and is not required to provide care that conflicts with advance directives
- Health Net provides or arranges for education of Health Net staff, PPG or PCP office staff, and the community regarding advance directives:
- Education materials should define what constitutes an advance directive and emphasize that an advance directive is designed to enhance an incapacitated individual's control over medical treatment
- Education materials should describe applicable state laws concerning advance directives
- Community education efforts must be documented
Health Net informs individuals that complaints concerning non-compliance with advance directive requirements may be filed with the state survey and certification agency.
For additional information on Advance Directive, refer to the member's Evidence of Coverage (EOC).
Provider Responsibilities and Procedures
Participating providers are required to:
- Adopt procedures ensuring that any advance directive executed by a member is brought to the immediate attention of the attending physician
- Document in a prominent place of the member's medical records whether they executed an advance directive
- Ensure that the advance directive is filed in a uniform place in the medical record
- Ensure that each physician honor advance directives to the fullest extent permitted under California law. Physicians are not required to provide care that conflicts with an advance directive
- Ensure that the member's primary care physician (PCP), attending physician or health care facility discusses with and provides medical advice to a member regarding advance directives
- Ensure that physicians do not condition the provision of care, or otherwise discriminate, on the basis of whether an individual has executed an advance directive
- Provide or arrange education for participating providers and the community on advance directives:
- Educational materials should define what constitutes an advance directive and emphasize that an advance directive is designed to enhance an incapacitated individual's control over medical treatment
- Educational materials should describe applicable state laws concerning advance directives
- Community education efforts must be documented
- Inform individuals that complaints concerning non-compliance with the advance directive requirements may be filed with the California Department of Health Care Services (DHCS) for Cal MediConnect members and the State Survey and Certification Agency for Medicare Advantage (MA) members
Hospitals or other health care facilities are required to:
- Ask if the Health Net member has completed an advance directive and if the member has a copy
- If the Health Net member has not signed an advance directive form, the hospital should have an advance directive form available and ask the member if they wishes to sign it. It is the member's choice whether or not to sign
- Ensure that the advance directive is filed in a prominent and uniform place in the medical record (or if the member chooses not sign the advance directive, make a note of that in the medical record)
- If the member decides not to sign an advance directive form, the care cannot be denied, nor should the member incur discrimination
- Inform individuals that complaints concerning non-compliance with the advance directive requirements may be filed with the DHCS for Cal MediConnect members and the State Survey and Certification Agency for Medicare Advantage (MA) members
In no event may participating providers refuse to treat a member or otherwise discriminate against a member because the member has or has not completed an advance directive. For additional information on Advance Directive, refer to the member's Evidence of Coverage (EOC).