Advance Care Planning: Selected States' Efforts to Educate and Address Access Challenges
Released: 2019-02-21T00:00:00

Letter

Background

Advance Directives and POLST Forms

Decisions about end-of-life care are based on an individual’s personal beliefs and values. Advance care planning documents, including advance directives and POLST forms, allow individuals to express their wishes for end-of-life care. These documents serve different purposes depending on an individual’s stage of life or health condition. (See fig. 1.)

According to a report by the Institutes of Medicine, advance care planning documents are most effective when used as part of broader advance care planning efforts, which may involve multiple, in-depth discussions with family members and health care providers. The report also stated that multiple discussions at various stages of life are needed, with greater specificity as an individual’s health deteriorates, because an individual’s medical conditions and treatment preferences may change over time. Therefore, a comprehensive approach to end-of-life care, rather than any one document, helps to ensure that medical treatment given at the end of life is consistent with an individual’s preferences.

Advance Directive

An advance directive is a written instruction recognized under state law and relating to the provision of health care when an individual is incapacitated. For example, an advance directive may be used to record an individual’s wish to receive all available medical treatment, to withdraw or withhold certain life-sustaining treatments, or to identify an agent to make medical decisions on the individual’s behalf if necessary. The most common advance directive documents are living wills and health care power of attorney.

Life-Sustaining Treatment Life-sustaining treatment means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques, that may sustain and possibly extend life, but which may not by themselves cure the condition.

Living will. A living will is a written expression of how an individual wants to be treated in certain medical circumstances. Depending on state law, a living will may permit an individual to express whether they wish to be given life-sustaining treatment in the event they are terminally ill or injured, to decide in advance whether they wish to be provided food and water via intravenous devices (known as tube feeding), and to give other medical directions that affect their health care, including at the end of life. A living will applies to situations in which the decision to use life-sustaining treatments may prolong an individual’s life for a limited period of time and not obtaining such treatment would result in death. Having a living will does not mean that medical providers would deny medications and other treatments that would relieve pain or otherwise help an individual be more comfortable.

Health care power of attorney. A health care power of attorney is a document that identifies a health care agent—also called a health care proxy—as the decision maker for the patient. Under state law, the health care power of attorney typically becomes operative when an individual is medically determined as unable to make decisions. Most commonly, this situation occurs either because the individual is unconscious or because the individual’s mental state is such that they do not have the legal capacity to make decisions. As with living wills, the process for validly executing a health care power of attorney depends on the state of residence. The health care power of attorney may be designated by using a model form in state statute or it may be drafted specifically for an individual by a lawyer. Similar to the living will, medical providers will make the initial determination as to whether an individual has the capacity to make their own medical treatment decisions.

Most adults in the United States do not have an advance directive. According to a 2017 study, about 37 percent of adults had an advance directive. However, the proportion of individuals with an advance directive can vary by demographic group. See appendix I for more information related to the prevalence of advance directives.

POLST Form

POLST forms differ from advance directives in that they are medical orders used to communicate an individual’s treatment wishes, and are appropriate for individuals with a serious illness or advanced frailty near the end-of-life. For these individuals, their current health status indicates the need for medical orders. In the event of a medical emergency, the POLST form serves as an immediately available and recognizable medical order in a standardized format to aid emergency personnel. Following the POLST form orders, emergency personnel can honor the individual’s treatment wishes as communicated to and documented by the individual’s health care provider. See appendix II for information on the types of information included on a POLST form.

Information on Completing and Storing Advance Care Planning Documents

Both government and non-government organizations, such as state agencies or the National POLST Paradigm, provide individuals and providers information on how to access or download blank advance care planning documents through their websites and education campaigns. For Medicare and Medicaid providers, the Patient Self Determination Act requires certain providers participating in these programs—such as hospitals and nursing homes—to maintain written policies and procedures to inform individuals about advance directives, and document information about individuals’ advance directives in their medical records. Once the advance care planning documents are completed, individuals and providers can access them through various systems. For example, an individual may have their advance directive or POLST form in their electronic health record (EHR), which can be accessed by their provider or other medical personnel in the event that the individual has a medical emergency. In addition, advance directives can be stored in a lawyer’s office or in an individual’s home; these documents would have to be found and transported to the medical setting if needed. Some states have registries (either electronic or paper-based) for advance directives or POLST forms, whereby individuals and providers can access the registry and obtain the necessary documents.

Websites Related to Advance Care Planning Were Available for All States; About One Quarter of States Had Registries for Completed Documents For All States, Advance Care Planning Information, Such as Blank Documents, Was Available Online

We found websites related to advance care planning for every state; however, the amount of information on these websites varied. In addition, about a quarter of states had registries to provide access to completed advance directives, POLST forms, or both.

For all states, either government or non-government websites provided information, which could include blank documents, on advance care planning for individuals and providers within the state. However, the amount of available information about advance care planning varied by state. The information available online varied from having an advance care planning document available to download, to extensive information on advance care planning. For example, in Mississippi, the State Board of Medical Licensure provided a POLST document that could be downloaded from its webpage with no additional information. In contrast, California—through its state attorney general’s website—offered a blank advance directive document that could be downloaded, as well as additional information on advance directives, including who should fill out particular types of advance care planning documents, and the importance of filling out these documents; and other resources, including brochures or information packets detailing advance care planning and other relevant documents.

About One-Quarter of States Had Registries for Completed Advance Directives, POLST Forms, or Both

To give providers, individuals, or both access to completed advance care planning documents, about one-quarter of states (14) had active registries (either electronic or paper-based) of completed advance directives, POLST forms, or both, as of November 2018. (See fig. 2.) Specifically,

3 states had active registries for both completed advance directives

8 states had active registries solely for completed advance directives;

2 states had active registries solely for completed POLST forms,

1 state had an active registry for completed advance directives and was piloting registries for completed POLST forms, and

37 states did not have active registries for either advance directives or POLST forms.

The 14 states with active registries varied in how they administered them. Some states’ registries were administered through state agencies or by contracting with an outside organization. For example, in Oregon, the state contracted with a large health system in the state to operate the technical aspects of the state’s POLST registry, while in Vermont, the Department of Health administered the state’s registry with technical support from a private national document registry company. For other states—such as New York, Virginia, and West Virginia—the state registries were administered through non-government organizations in collaboration with state agencies.

Challenges to Advance Care Planning Include Understanding the Types of Documents and Ensuring Access to Completed Documents

Based on our interviews with officials from national stakeholder organizations, state agencies and stakeholder organizations in selected states, and articles we reviewed, we identified two broad challenges to advance care planning: (1) a lack of understanding about advance care planning, including how to initiate conversations about advance care planning and how to complete and follow advance care planning documents; and (2) ensuring access to completed documents. In addition to these two broad challenges, the officials we interviewed identified challenges related to resources and the portability of advance care planning documents.

Individuals and providers may struggle with how and when to initiate advance care planning conversations. We previously reported that providers identified informing individuals about advance care planning as a challenge due to reluctance to talk about end-of-life issues. In addition, officials from both national and state stakeholder organizations identified challenges to providers properly counseling their patients about advance care planning, either to avoid discussing death and dying with their patients, or because of their own uncertainties regarding the timing of when to hold such discussions. In addition to challenges related to having advance care planning conversations, individuals and providers may not understand that filling out the document is voluntary or how to complete and follow the advance care planning document, according to officials from national stakeholder organizations and officials in the four selected states. Officials from national stakeholder organizations and articles we reviewed noted that challenges with voluntarily completing advance care planning documents can arise when there are language or cultural barriers to understanding these documents. When individuals or providers do not understand the information being requested in advance care planning documents, it can affect whether an individual’s wishes for care are accurately represented. A state agency official in one state identified challenges in ensuring EMS providers understand the appropriate actions to take when they encounter a document that is different from a traditional POLST form. For example, the state official noted that EMS providers might assume that individuals who have a wallet card on their person do not want CPR when the card actually indicates that the individual has completed an advance directive or POLST form to express their care wishes. This could result in treatment that does not match the individual’s expressed wishes.

Once advance care planning documents are completed, additional challenges exist to ensuring that providers have access to these documents when needed, such as in an emergency situation. Officials from the national stakeholder organizations, state agencies, and state stakeholder organizations we interviewed identified challenges related to accessing advance directives and POLST forms stored in EHRs. Specifically, stakeholders identified challenges related to EHR interoperability, such as where a provider in one health system cannot access advance care planning documents recorded in an EHR at a different health care system. While interoperability is not limited to advance care planning documents, the challenges associated with accessing advance care planning documents in EHRs can affect providers’ abilities to honor an individual’s wishes in an emergency if they do not have ready access to the documents. For example, when emergency providers cannot readily access advance care planning documents in another health system’s EHR, the providers might not be aware of and provide treatment inconsistent with the wishes of someone they are treating in the emergency room. National stakeholder officials also noted challenges due to a lack of standardization in EHR systems. For example, one national stakeholder official noted that EHR systems in health care facilities do not always have standardized processes for storing advance care planning documents—that is, one health care facility might enter advance directive information into a physician’s notes section of the EHR, while another might have a specific tab in the EHR for advance directives. Due to the lack of standardization, providers might not be able to find an individual’s advance care planning document, and consequently provide treatment inconsistent with the individual’s expressed wishes.

In addition to challenges related to understanding and accessing advance care planning documents, officials from the national stakeholder organizations, state agencies, and state stakeholder organizations we interviewed identified other challenges related to resources and portability of advance care planning documents.

State agency officials told us that the lack of dedicated resources for advance care planning efforts, such as maintaining a registry, can be challenging. For example, an Idaho official stated that, due to resource constraints within the Secretary of State’s Office—which administers its Health Care Directive registry—the office does not have the personnel to maintain the registry at current document submission rates.

National stakeholder officials discussed challenges with states’ legal structures for accepting advance care planning documents—that is, the portability of documents across state lines. For example, an individual might fill out an advance directive or POLST form in one state, but become ill in another state where these documents may not be valid.

Various Strategies Used in Selected States to Improve Individuals’ and Providers’ Understanding of and Access to Advance Care Planning Documents

In our four selected states—California, Idaho, Oregon, and West Virginia—state agencies and state stakeholder organizations pursued various strategies to improve individuals’ and providers’ understanding of advance care planning documents, as well as to improve their access to completed advance care planning documents.

Selected States Used Education and Training to Increase Understanding of the Need for and Use of Advance Care Planning Documents

Officials from state agencies and stakeholder organizations in our selected states described efforts to educate individuals about the importance of advance care planning and train providers on the use of advance care planning documents.

Educating Individuals

To address individuals’ lack of understanding of advance care planning, state agency officials and stakeholders in our selected states used strategies to inform them about the purpose of the documents and how to fill them out. The following are some examples of these efforts.

Oregon. The Oregon POLST Coalition used its relationship with stakeholder groups in the state—a large health system, and the state health authority—to educate individuals about POLST forms. These efforts included online videos and brochures intended to improve individuals’ voluntary and informed completion of the documents.

West Virginia. The West Virginia Center for End-of-Life Care—which administers the state’s advance care planning registry—collaborated with the West Virginia Network of Ethics Committees and a national organization to conduct public education presentations and webinars.

For three of our selected states, educational efforts also included making information about advance care planning available in other languages. For example, in California, Idaho, and Oregon, POLST forms and other information on advance care planning are available in Spanish. Articles we reviewed stated that providing culturally sensitive documents that communicate how to fill out the documents could help improve voluntary and informed completion of advance care planning documents.

Training Providers

Officials from state agencies and state stakeholder organizations in all four selected states reported conducting provider training, which included working with EMS and hospital providers to train them on advance care planning documents, such as how to use advance directives and POLST forms and when to conduct end-of-life care conversations. The following are examples of these efforts.

California. A state stakeholder organization in California conducted train-the-trainer sessions to educate providers about POLST forms, so the providers could subsequently conduct community training events. The organization also published decision aids for providers and individuals to help facilitate advance care planning conversations. The organization, which focused on POLST education and training, noted that it holds periodic conference calls with previous session participants to provide ongoing support and continue discussions about advance care planning.

Idaho. The state—through collaborations with stakeholder organizations in Idaho—focused on improving advance care planning through education efforts. Specifically, the state collaborated with stakeholder organizations to conduct trainings on locating and understanding advance care planning documents. In addition, the organizations created EMS protocols related to accessing individuals’ wishes during emergencies. An Idaho official noted that successful advance care planning education and outreach within the state has led to a large increase in the number of advance care planning documents submitted to the state’s registry.

Oregon. State stakeholder organizations conducted provider training on advance directives and POLST forms. For example, an organization that focused on improving advance care planning education in the state developed an initiative, which included educational materials and training programs, to improve patient understanding of filling out and updating advance directives through health care organizations and provider training. Further, according to an official from the state health authority, POLST information is included in the curriculum for all medical education in the state ranging from emergency medical technicians to physicians.

West Virginia. The West Virginia Center for End-of-Life Care created training manuals, led EMS training webinars, and provided other online education materials to improve provider education about using POLST forms and related protocols in the field.

National stakeholder organizations we interviewed and articles we reviewed also noted that increasing the quality of the advance care planning conversations between providers and their patients is an important aspect of successful advance care planning efforts. One strategy to improve the advance care planning conversations is to conduct the conversations over multiple visits, according to national stakeholders and articles.

Selected States’ Strategies to Improve Access to Completed Documents Included Interoperability between Electronic Health Records and Registries

Officials from state agencies and stakeholder organizations in our selected states utilized strategies to improve access to current advance care planning documents, including better interoperability between EHRs and a state registry, and access to completed documents stored in registries.

Access in Electronic Health Records

Officials from state agencies and stakeholder organizations identified strategies to improve providers’ access to advance care planning documents stored in an EHR and to ensure the EHR has the most current copy of the document. One strategy used in Oregon enabled information sharing between EHR systems and the state’s electronic registry of completed POLST forms, allowing providers access to the most current POLST forms, according to state officials. Certain EHR systems— including those in three large health systems in the state—are interoperable with the state’s electronic POLST registry using bidirectional technology, meaning that the systems are coded in a way that they can seamlessly exchange information with each other. This allows providers to receive updated POLST forms from the registry upon the individual’s admission to the hospital. It also updates the POLST forms in the registry when changes are made in the EHR by the provider in the hospital. The Oregon officials described another strategy taken within a large health system in the state, which allows providers to quickly know whether a patient has an advance directive in an EHR by using a tab in the medical record indicating that the documents are in the EHR. Stakeholder organizations identified other strategies for increasing access to completed advance care planning documents, such as standardizing information. For example, one national stakeholder organization noted that advance care planning documents could be in a standardized location within an EHR to help providers find these documents more easily.

Another strategy used in our selected states is the use of a health information exchange to facilitate access to advance care planning documents. According to a West Virginia stakeholder organization, using the state’s health information exchange allowed West Virginia to easily provide authorized individuals with direct access to completed advance care planning documents—both advance directives and POLST forms—in its registry.

Access to Registry Information

Officials from state agencies and stakeholder organizations also developed strategies to improve access to completed advance care planning documents in their state registries. All four selected states used registries to facilitate access to completed advance care planning documents: two states (Idaho and West Virginia) had registries for both advance directives and POLST forms, one state (California) had an advance directive registry and was piloting an electronic POLST registry in two communities, and the remaining state (Oregon) had a POLST registry. Officials in these states reported strategies to facilitate access through their registries. Below are examples of these strategies.

California. To test whether partnering with a health information exchange organization would provide benefits to the state’s POLST eRegistry uptake and expansion, one of the two California communities chosen to pilot the POLST eRegistry was led by a health information exchange. The other community selected for the pilot was led by a for-profit commercial service. According to a California EMS official, using the health information exchange allowed advance care planning documents to be exchanged quickly between ambulances and hospitals.

West Virginia. West Virginia’s registry used the state-wide EMS structure, enabling EMS providers to access the information in an individual’s POLST form while en route to an emergency call. The medical director at the EMS state office noted that EMS providers could call one of its five medical command centers, which could access the registry online to “pre-screen” individuals, to determine if there was a valid advance care planning document on file. EMS providers then received the individual’s information from the medical command center. According to an official involved with the state registry, authorized individuals—i.e., individuals with a registry-issued username and password—could also directly view registry documents.

Oregon. State officials reported using an opt-out strategy for the submission of POLST forms to the state’s registry to help ensure that the information in the registry was current. That is, the state has a legislative mandate for providers to submit all POLST forms to the state’s POLST registry unless the patient elected to opt out of the submission. According to Oregon stakeholders, Oregon attributes the widespread use and adoption of the registry to this strategy. One article noted that, in Oregon, successful access to POLST forms through the registry by EMS providers influenced the treatment of individuals. Oregon officials and stakeholders told us that they have not experienced many challenges related to administering its POLST registry and providing access to completed POLST forms, because they leveraged their existing centralized EMS system and created a state administered registry that is interoperable and available to all health systems within the state. Oregon officials stated that the state’s registry success is largely attributable to the fact that it was designed to meet the access and workflow needs of both EMS providers in the field and acute care providers.

At the federal level, to support state registry efforts, in February 2016, CMS published a State Medicaid Director letter alerting states to the availability of federal Medicaid funding for the development of and connection to public health systems, such as registries. A July 2018 report by the Office of the National Coordinator for Health Information Technology noted that end-of-life care advocacy groups should consider working with State Medicaid Directors to apply for CMS funding to pilot POLST registries. According to CMS, as of October 2018, one state, Louisiana, received approval to fund an electronic registry for advance directives.

Additional Strategies Used in Selected States Address Resource Needs for Advance Care Planning Registries and the Portability of Documents.

Officials from state agencies and stakeholder organizations in our selected states discussed the importance of having adequate funding and staff resources to administer their registries. For example, according to an Oregon stakeholder organization, dedicated state funding for the state’s registry allows multiple benefits, such as continuous availability of the registry for individuals and providers. Oregon POLST officials stated that in order to ensure access to individuals’ POLST forms between health systems within a state, they believe POLST registries should be state funded and administered. According to the Office of the National Coordinator for Health Information Technology report and a West Virginia registry official, the state’s registry, which received state-funding from 2009 until 2017, functioned as a central source of information on individuals’ wishes, which were recorded in documents such as advance directives and POLST forms and alleviated multiple access issues. However, officials involved in receiving and providing registry services reported challenges when the registry did not receive state funding in 2018. As a result, online access to advance directives and POLST forms through the registry was discontinued. In California, officials involved with the POLST eRegistry pilot stated that one goal of the pilot project was to identify potential plans for sustainable funding of a registry.

Regarding acceptance of out-of-state advance care planning documents—that is, the portability of documents across state lines—we found that all four selected states have statutes that address the validity of advance care planning documents executed in another state. To ensure individuals’ wishes are honored, according to an American Bar Association official, states need to engage in efforts to develop processes and protocols that will allow advance care planning documents to be accepted between states. While the states’ language varies, all selected states allow use of out-of-state documents. Under Idaho’s statute, out-of- state documents that substantially comply with Idaho’s requirements are deemed to be compliant with Idaho’s statute. California’s, Oregon’s, and West Virginia’s statutes note that out-of-state documents executed in compliance with that state’s laws are valid within their states. For more information on the states’ statues related to advance care planning, see appendix IV.

Agency and Third Party Comments

We provided a draft of this report to the Department of Health and Human Services. HHS provided technical comments, which we incorporated as appropriate. We also provided relevant information from the draft report to state officials and stakeholders in each of the four selected states in our review (California, Idaho, Oregon, and West Virginia), and to one national stakeholder organization (the National POLST Paradigm), and incorporated their technical comments, as appropriate.

We are sending copies of this report to the appropriate congressional committees, the Secretary of Health and Human Services, the Administrator of the Centers for Medicare & Medicaid Services, the National Coordinator for Health Information Technology, the National Institute on Aging, and other interested parties. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-7114 or yocomc@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix V.

Appendix I: Information on the Extent to Which Individuals Have Advance Directives

Officials from the National Institutes of Health’s National Institute on Aging, the Centers for Disease Control and Prevention’s National Center for Health Statistics, and representatives of national stakeholder organizations identified specific surveys and a comprehensive national study of the prevalence of individuals who have completed advance directives. Table 1 provides information from selected research on the prevalence of advance directives. Table 2, below, shows the percentage of individuals age 65 and older responding to the Health and Retirement Survey who reported having a living will or power of attorney in 2012, 2014, and 2016.

Appendix II: Types of Information Found on a POLST Form

Physician orders for life-sustaining treatment (POLST) forms are different in each state, and the order of the sections or the options within a section may differ. However, according to the National POLST Paradigm, POLST forms cover the same information. Information about the forms, including sections on cardiopulmonary resuscitation (CPR), medical interventions, artificially administered nutrition, and signatures, is provided below.

Section A: Cardiopulmonary Resuscitation

This section only applies when the individual is unresponsive, has no pulse, and is not breathing. This is similar to a do-not-resuscitate order, but the individual only has a do-not-resuscitate order when they do not want CPR. The POLST form allows individuals to clearly show they do want CPR. If this is left blank, the standard protocol is for emergency personnel to provide CPR if medically indicated. (See fig. 3.)

Section B: Medical Interventions

This section gives medical orders when CPR is not required, but the individual still has a medical emergency and cannot communicate. There are three options and a space for a health care professional to write in orders specific for the individual. Care is always provided to individuals. This section is for letting emergency personnel know what treatments the individual wants to have. (See fig. 4.) 1. Full treatment. The goal of this option is to provide all treatments necessary (and medically appropriate) to keep the individual alive. In a medical emergency, individuals want to go to the hospital and, if necessary, be put in the intensive care unit and on a breathing machine. 2. Limited treatment / select treatment. The goal of this option is to provide basic medical treatments. These individuals want to go to the hospital, but do not want to be put in the intensive care unit or on a breathing machine. They are okay with antibiotics and intravenous fluids. 3. Comfort measures only. The goal of this option is to focus on making the individual as comfortable as possible where they are. These individuals do not want to go to the hospital. If the individual’s comfort cannot be taken care of where they are, transfer to the hospital may be necessary.

According to the National POLST Paradigm, in many states, if an individual chooses CPR—or leaves Section A blank—the individual is required to choose “Full Treatment” in Section B. This is because CPR usually requires intubation and a breathing machine, which are only options under “Full Treatment.” If an individual has a medical emergency, but does not want CPR, this is the section emergency personnel will look at to see whether the individual wants to go to the hospital or not (for Full Treatment and Limited Interventions: yes; for Comfort Measures Only: no). If the individual only has a do-not-resuscitate order, emergency personnel would take them to the hospital.

Section C: Artificially Administered Nutrition

This section is where orders are given about artificially administered nutrition (and in some states artificially administered hydration) for when the individual cannot eat. All POLST forms note that individuals should always be offered food by mouth, if possible. (See fig. 5.)

Other Section: Signatures

Health care professional. Since this document is a medical order, a health care professional is required to sign it in order for it to be valid. Which health care professionals can sign (e.g., physician, nurse practitioner) varies by state. The document has a statement saying that, by signing the form, the health care professional agrees that the orders on the document match what treatments the individual said they wanted during a medical emergency based on their current medical condition.

Patient or surrogate. According to the National POLST Paradigm, most states require the patient or the surrogate to sign this form. This helps to show the patient or surrogate was part of the conversation and agrees with the orders listed on the form.

Backside of a POLST Form

The backside of the POLST form has directions and information, usually for health care professionals. Other information it may have includes information on how to void a POLST form; contact information for surrogates; and information on who completed the POLST form.

Appendix III: Information on CMS’s Promoting Interoperability Programs Related to Advance Care Planning Documents

This appendix provides information about incentive programs provided by the Centers for Medicare & Medicaid Services (CMS) to encourage providers to use electronic health records related to advance care planning documents. CMS provided incentive payments to eligible providers who reported certain measures through its Medicare electronic health records (EHR) Incentive Program (meaningful use program), which started in 2011. At certain points in the program, measures related to advance care planning were optional measures. In 2017, eligible professionals (physicians) began reporting “promoting interoperability” measures through the Merit-based Incentive Payment System (MIPS).

The American Recovery and Reinvestment Act of 2009 established the Medicare and Medicaid EHR Incentive Program. This program provided incentive payments for certain eligible providers—certain hospitals and physicians—that successfully demonstrated meaningful use of certified EHR technology and met other program requirements established by CMS. The program was implemented in three stages—measures were established at each stage to promote the use of EHRs in the delivery of health care and to ensure that providers capture information in their EHRs consistently. For example, one measure assessed whether providers have the technical capability in their EHRs to notify the provider of potential interactions among the patients’ medications and with patients’ allergies. In all three stages of meaningful use, providers had to report certain mandatory or core measures, as well as on a set of optional or menu measures.

The recording of advance directives was not included as a mandatory measure for eligible providers during any stage of meaningful use. For stages 1 and 2 of meaningful use (2011 through 2015) the recording of advance directives was an optional measure, meaning hospitals could choose to report it or could choose to report a different measure. This optional measure for eligible hospitals was a yes/no measure of whether users could record whether a patient has an advance directive. In October 2015, CMS released the stage 3 final rule that also modified elements of stage 2 reporting; this modification eased reporting requirements and aligned them with other quality reporting programs, according to agency officials. For both modified stage 2 and stage 3 (2015 through 2017), the original advance directive measures were no longer included. CMS noted that a goal for stage 3 measures was to include more advanced EHR functions, and one stage 3 measure addressed capturing and incorporating a broad range of data into the EHR, including advance directives.

One national stakeholder organization recommended a measure to ensure that if there are any advance care planning documents in the medical record, that the documents be accessible to all health care providers. CMS noted that advance care planning directives can be included in the notes and is addressed by certification requirements applicable to EHRs. Participants in these CMS programs must use certified EHR technology, which is technology that has been determined to conform to certification criteria developed by the Department of Health and Human Services’ Office of the National Coordinator for Health Information Technology. The 2015 certified EHR technology criteria—the most recent edition—includes a criterion that relates to advance care planning documents.

The Medicare Access and CHIP Reauthorization Act of 2015 established the Quality Payment Program, which consolidated components of three previously used payment incentive programs, including the Medicare EHR Incentive Program, into MIPS. Under the MIPS program, which affects clinician payments beginning in 2019, participating clinicians will generally be assessed in four areas, one of which is the “promoting interoperability” performance category that aims to achieve the same objectives as the original meaningful use program. MIPS-eligible clinicians report measures and activities to earn a score in the performance categories. Under the “improvement activities” performance category, one optional activity—advance care planning—covers items such as implementation of practices or processes to develop advance care planning that includes documenting the advance care plan or living will, and educating clinicians about advance care planning. Clinicians who meet the criteria for this activity can report this advance care planning activity to earn credit for the “improvement activities” performance category. Further, the advance care planning activity could earn bonus points in the “promoting interoperability” category, if the activity was conducted using certified EHR technology in 2017 and 2018.

Appendix IV: Selected State Statutes Related to Advance Care Planning Documents

Our four selected states—California, Idaho, Oregon, and West Virginia— had statutes with similar provisions that affected access to advance care planning documents; however, the statutes differed in the specificity of these provisions. This appendix provides information on provisions related to (1) document execution requirements, such as signature and witness requirements; (2) the validity of other advance care planning documents; (3) provider objections to advance care planning directions; and (4) provider liability protections.

Document Execution Requirements

Statutes in the four selected states required advance care planning documents to contain specific elements for the documents to be valid. The document requirements included the following:

Signature requirements. All four selected states required individuals or designated representatives to sign the advance care planning document for the document to be legally valid. In addition, California allows individuals to sign the documents with a digital signature.

Witness requirements. Three of the states (California, Oregon, and West Virginia) have statutes that require at least one witness to be present during the completion of advance care planning documents for that document to be legally valid. These states varied regarding the relationship the witness could have with the individual and number of required witnesses. For example, for advance care planning documents that were signed by witnesses, California required that at least one of the witnesses not be related to the individual by blood, marriage, or adoption, nor be entitled to any portion of the individual’s estate upon the individual’s death under an existing will. In contrast, according to state officials in Idaho, the state removed witness requirements from its advance care planning documents in 2012 to make the documents easier to complete.

Format of Advance Care Planning Documents

All four selected states’ statutes contained model forms that could be used as a valid advance care planning document. All of the states contained provisions regarding the acceptance of documents other than the forms set out in statute. A document other than the model form is valid if it includes required statutory elements (e.g., signature requirements). For example, in Idaho, the document must be substantially like the model form or contain the elements laid out in the statute. In Oregon, the advance directive statute states that, except as otherwise provided, Oregon residents’ advance directives must be the same as the statutory model form to be valid.

Provider Objections to Advance Care Planning Directions

All four selected states’ advance care planning statutes had provisions related to provider objections—the statutes address situations in which the provider is unable or unwilling to comply with advance care planning directions. However, the statutes varied on the grounds for provider objection, the required steps to be taken, and the extent to which providers were responsible for taking those steps. For example, California’s and Idaho’s statutes allow providers to object on ethical and professional grounds; and California’s, Idaho’s, and West Virginia’s statutes allow providers to object on reasons of conscience. In addition, the four states’ statutes specified the steps that providers or health systems must take after an objection is made. For example, all four selected states require that specified steps be taken with regard to transferring the individual to a provider that will honor their wishes. Further, California and Oregon explicitly require patient or health care representative notification as soon as provider objections are made.

Provider Liability Protections

All four states also had statutes that addressed the circumstances under which providers would not be subject to civil or criminal liability, or professional disciplinary action with regard to administering advance care planning documents and directions. The states’ statutes varied with regard to the actions that were covered under these liability provisions. For example, California’s statute addresses situations in which a provider or institution either complied with or objected to the directions provided in advance care planning documents, while Idaho’s, Oregon’s, and West Virginia’s statutes only addressed situations in which providers and other parties complied in good faith with the directions.

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Kim Yamane (Assistant Director), Shirin Hormozi (Analyst-in-Charge), Leia Dickerson, Drew Long, Ian P. Moloney, Monica Perez-Nelson, and Vikki Porter made key contributions to this report.