Medical Treatment Rights of Older Persons and Persons with Disabilities: 1991 Developments

Article excerpt

Summary

Federal legislation requires that health care facilities receiving Medicaid payments must provide their patients upon admission with information on advance directives. The Department of Justice has issued regulations implementing the Americans with Disabilities Act. Oregon is seeking federal approval of a plan to ration health care for Medical recipients. A federal court of appeals is reviewing whether section 504 of the Rehabilitation Act applies to infants with disabilities in need of medical care. In cases involving refusal of life-sustaining treatment, state courts continue to grapple with who is the appropriate decisionmaker and what limitations apply to protect incompetent persons. The number of states that have enacted "living will" and durable power of attorney laws has increased.

Federal Legislation and Regulations

Patient Self-Determination Act

Congress enacted as part of the Omnibus Budget Reconciliation Act of 1990 the Patient Self-Determination Act (PSDA). (1) The PSDA requires health care provides to inform their patients upon admission to a health care facility about their right to accept or refuse medical or surgical treatment. (2) The PSDA applies to any hospital, skilled nursing facility, home health or personal care agency, hospice, and health maintenance organization that serves recipients of Medicare or Medicaid. (n3)

These providers must document in every patient's medical records whether the patient has signed a living will or other advance directive. (4) The PSDA also obligates the providers to follow applicable state law on advance directives. (5) Providers had to comply with the PSDA by December 1, 1991. (6)

The PSDA applies only to adult patients.(7) It forbids providers from conditioning their provision of services, or otherwise discriminating against patients, based on whether a patient has or has not signed an advance directive. (8) Providers and their agents may refrain from implementing advance directives pursuant to state conscience clauses. (9)

The PSDA also mandate that an educational campaign on advance directives and related issues be waged at the national, state, and local level. The Department of Health and Human Services must develop and distribute materials "to inform the public and the medical and legal profession of each person's right to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment, and the existence of advance directives." (10) State participating in the Medicaid program must "develop a written description of the law of the State (whether statutory or as recognized by the courts of the State) concerning advance directives." (11) Providers must avail to their patients written information about state law concerning an individual's right to accept or refuse treatment and a copy of the provider's own policy regarding those rights. (12) In addition, providers must educate their staff and the community on issues concerning advance directives. (13)

The PSDA is problematic in two respects. First, it promotes advance directives as a suitable mechanism for medical decisionmaking even though most advance directives are too general to be helpful and are often poor substitutes for physician-patient dialogue. n14 Second, the PSDA goes beyond encouraging patients to consider advance directives as an option, by authorized federal and state agencies to produce descriptions of subjects more broad in scope and more controversial in substance. As noted by the National Health Law Program, the PSDA's educational mandate "could easily be read broadly to require a description of subjects [such as] informed consent, the powers of spouses and Conservation, applicability to nutrition/hydration, etc., which may well be controversial and unsettled." (15)

American with Disabilities Act

The U.S. Department of Justice issued on July 26, 1991, two final rules (hereinafter "Rules") to implement various provisions of the Americans with Disabilities Act of 1990 (hereinafter "ADA"). …