CMS published changes to hospital Conditions of Participation regarding advance directives. The changes expanded patient rights related to advance directives and focused on incapacitated patients designating a representative for healthcare decisions. Hospitals must now provide written notice of advance directive policies to inpatients, emergency patients, and those in observation or having outpatient surgery. The notice must include any limitations where advance directives cannot be followed due to conscience objections, clarifying these objections and citing the relevant state legal authority. Hospitals must also review policies where advance directives are not honored to ensure any limitations are due to legally permitted conscience objections.

1.
CMS AND ADVANCE DIRECTIVES
October 24, 2011 CMS published changes to many of the hospital Conditions of Participation (CoP)
requirements. In March 2012, CMs provided an “Advanced Copy” in a Transmittal of the new
Appendix A. Although no changes were made to the CMS CoP under “Patient Rights-Advance
Directives” §489.102, significant changes were made to the “Interpretive Guidelines” and “Survey
Procedures.” CMS took the opportunity to expand patient’s rights related to advance directives, (AD).
The focus of the changes to advance directives centered on the incapacitated patient and the
designation of a representative for decisions related to healthcare matters. The Interpretive
Guidelines indicate that the decision maker need not be the same person as the designated
representative. Additionally, if the patient does not have an AD designating a “representative for
decision making,” the hospital follows state rules for designation of a decision maker, i.e. spouse,
parents, children, siblings, etc.
Imbedded in the changes to the ADs §489.102 are the following statements requiring the hospital to:
1. Provide written notice of its policies regarding the implementation of patients’ rights to make
decisions concerning medical care, such as the right to formulate advance directives.
2. The guidance concerning the regulation at §482.13(a)(1) governing notice to the patient or
the patient’s representative of the patient’s rights applies to the required provision of notice
concerning the hospital’s advance directive policies. Although both inpatients and outpatients
have the same rights under §482.13(a)(1), §489.102(b)(1) requires that notice of the
hospital’s advance directive policy be provided at the time an individual is admitted as an
inpatient. In view of the broader notice requirements; however, at §482.13(a)(1), the hospital
should also provide the advance directive notice to outpatients (or their representatives) who
are in the emergency department, who are in an observation status, or who are undergoing
same-day surgery. The notice should be presented at the time of registration.
3. The notice must include a clear and precise statement of limitation if the hospital cannot
implement an advance directive on the basis of conscience. At a minimum, a statement of
limitation should:
 Clarify any differences between institution-wide conscience objections and those that
may be raised by individual physicians or other practitioners;
 Identify the State legal authority permitting such an objection; and
 Describe the range of medical conditions or procedures affected by the conscience
objection.
Regarding the requirement for the hospital to provide copies of its policies related to Ads, this can be a
summary of statements of items within the policy. For example, “When the “representative” named in
the AD is not available at the time a decision must be made, the hospital will seek guidance on care
decisions from the following people in the following order based on state law; spouse, parents,
children…”
CMS relaxed the outpatient requirements to just outpatients in three areas who must receive copies of
the AD policy; emergency departments, observation areas and same day surgeries.
The third and most dramatic change, requires hospital’s with policies stating that ADs may not be
honored in some areas, (i.e. OR’s,) must base these policies on state laws or regulations related to
“conscience objections.” An example of an allowable conscience objection would be as follows: the
patient is at the end of life and has an AD that states she does not want to receive any type of

2. nutrition (solids or liquids). The staff RN caring for this patient has religious beliefs that prohibit her
from caring for this patient. The patient is assigned to another RN for care. Recommendations to
achieve compliance with these regulations:
1. Develop a summary of Advance Directive policies to be provided at the time of registration to
all inpatients, emergency patients, patients admitted to observation status and same day
surgery patients. This may be provided as a separate handout or within a patient information
brochure.
2. Review, with the hospital’s legal counsel, any policies or practices currently in place that
identify any areas or times when advance directives are not honored in view of the
requirement for “conscience objections.” Assure that “conscience objections” are in place and
legally permitted for the organization.
References:
CMS Conditions of Participation for Hospitals
CMS Appendix A: State Operations Manual
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