A hospital, nursing facility, intermediate care facility for
individuals with intellectual disabilities, hospice agency and home health
agency is required to give an eligible recipient or personal representative
information about their right to make their own health decisions, including the
right to accept or refuse medical treatment, pursuant to the Omnibus Budget
Reconciliation Act (OBRA) of 1990. An eligible recipient is not required by
this legislation to execute advance directives. Advance directives, such as
living wills or durable power of attorney documents, must be established in a
manner which is recognized under New Mexico state law. See applicable state
law. A health care provider cannot object on the basis of conscience when an
eligible recipient or personal representative wishes to implement an advance
directive.
A. Information
requirements: At the time of admission, a provider is required to provide
written information to an adult eligible recipient or personal representative
concerning their right to do the following:
(1) make decisions about their medical
care;
(2) accept or refuse medical
or surgical treatment;
(3) execute
advance directives;
(4) execute
their rights under HIPAA; and
(5)
if an eligible recipient who is already incapacitated is admitted, the provider
must provide their personal representatives with this information; if an
eligible recipient is no longer incapacitated, the provider must discuss these
rights with the eligible recipient.
B. Policies, rules and procedures: A provider
must give written information to an eligible adult recipient or their personal
representative about provider rules and procedures concerning advance directive
rights. A provider must verify that the advance directive complies with state
law.
C. Documentation requirements:
A provider must document in each eligible recipient's medical record whether
their personal representative has established an advance directive. If the
eligible recipient or their personal representative presents an advanced
directive, a provider must comply with the terms of the document, as directed
by state law. If an eligible recipient is incapacitated, unable to communicate,
or their personal representative does not present an advance directive, the
provider must document that the eligible recipient was unable to receive
information or communicate whether advance directives exist. A provider must
inform the eligible recipient or their personal representative that it
furnishes information and proper forms for completion of advance
directives.
D. Provision of care: A
provider must not condition the provision of care or discriminate against an
eligible recipient based on whether they have established advance directives.
If an eligible recipient is entitled to necessary care ordered by a physician,
which providers under normal procedures must furnish, care cannot be delayed
while waiting for the execution of an advance directive. Once the existence of
an advance directive is documented, the directive takes precedence over normal
procedures.
E. Changing the
advanced directives: A provider must inform an eligible recipient or their
personal representative that they have a right to reaffirm an advance directive
or change an advance directive at any time and in any manner, including oral
statements.
