Appendix VIII, Advance Directives

A nursing facility, provider of home health care or personal care services, or hospice program that receives Medicaid funds must comply with federal law at United State Code (USC), Title 42, §1396a(w) regarding advance directives. Section §1396a(w) states:

(w) Maintenance of written policies and procedures respecting advance directives

1. For purposes of subsection (a)(57) of this section and sections 1396b(m)(1)(A) and 1396r(c)(2)(E) of this title, the requirement of this subsection is that a provider or organization (as the case may be) maintain written policies and procedures with respect to all adult individuals receiving medical care by or through the provider or organization-

(A) to provide written information to each such individual concerning-

(i) an individual's rights under State law (whether statutory or as recognized by the courts of the State) to make decisions concerning such medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives (as defined in paragraph (3)), and

(ii) the provider's or organization's written policies respecting the implementation of such rights;

(B) to document in the individual's medical record whether or not the individual has executed an advance directive;

(C) not to condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive;

(D) to ensure compliance with requirements of State law (whether statutory or as recognized by the courts of the State) respecting advance directives; and

(E) to provide (individually or with others) for education for staff and the community on issues concerning advance directives. Subparagraph (C) shall not be construed as requiring the provision of care which conflicts with an advance directive.

1. The written information described in paragraph (1)(A) shall be provided to an adult individual-

(A) in the case of a hospital, at the time of the individual's admission as an inpatient,

(B) in the case of a nursing facility, at the time of the individual's admission as a resident,

(C) in the case of a provider of home health care or personal care services, in advance of the individual coming under the care of the provider,

(D) in the case of a hospice program, at the time of initial receipt of hospice care by the individual from the program, and

(E) in the case of a Medicaid managed care organization, at the time of enrollment of the individual with the organization.

1. Nothing in this section shall be construed to prohibit the application of a State law which allows for an objection on the basis of conscience for any health care provider or any agent of such provider which as a matter of conscience cannot implement an advance directive.
2. In this subsection, the term “advance directive” means 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) and relating to the provision of such care when the individual is incapacitated.
3. For construction relating to this subsection, see section 14406 of this title (relating to clarification respecting assisted suicide, euthanasia, and mercy killing).

In accordance with 42 USC §1396a(a)(58), a state is required to develop a written description of state law concerning advance directives to be distributed by providers in accordance with §1396a(w). The Texas Department of Aging and Disability Services has developed a written summary called Summary of State Law Regarding Advance Directives.

You must distribute this written summary to individuals receiving Medicaid services as part of the information required to be distributed under §1396a(w).