Chapter 7-2 Patient Self-Determination Act

• Jurisdiction: United States

7-2 Patient Self-Determination Act

The PSDA³ is the only federal law addressing the issue of advance directives. The statute applies to any patient receiving care from a facility or care provider covered by Medicare and Medicaid, including hospitals, hospices, nursing homes, and home health care agencies.⁴

Essentially, effective December 1, 1991, the PSDA required all Medicare and Medicaid provider organizations to do five things:

1. provide written information to patients at the time of admission concerning their rights under state 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;⁵
2. maintain written policies and procedures regarding advance directives (e.g., living wills and health care powers of attorney) and to inform patients of the policies;⁶
3. document in the individual's medical record whether he or she has executed an advance directive;⁷
4. ensure compliance with the requirements of state law respecting advance directives at facilities of the provider or organization;⁸ and
5. provide (individually or with others) for staff⁹ and community education on issues related to advance directives.¹⁰

While the PSDA governs patient self-determination for patients being cared for by providers receiving federal assistance, the statute does not create a uniform law for all 50 states to follow. Hence, states have had to pass their own statutes regarding advance directives. These statutes are based on the doctrine of informed consent.

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Notes:

^[3] Omnibus Budget Reconciliation Act of 1990, P.L. 101-508, §§ 4206 and 4751, 104 Stat. 1388, 1388-115, and 1388-204 (classified, respectively, at 42 U.S.C. §§ 1395cc(f) [Medicare] and 1396a(w) [Medicaid] [1994]).

^[4] 42 U.S.C. §§ 1395cc(f), 1396a(w).

^[5] 42 C.F.R. § 489.102(a)(1)(i).

^[6] 42 C.F.R. § 489.102(a).

^[7] 42 C.F.R. § 489.102(a)(2).

^[8] 42 C.F.R. § 489.102(a)(4).

^[9] 42 C.F.R. § 489.102(a)(5).

^[10] 42 C.F.R. § 489.102(a)(6).