Advance Directives

(A) Provider Participation. All hospitals, nursing facilities, MCOs, Accountable Care Partnership Plans, One Care Plans, SCO Plans, home health agencies, personal care agencies, hospices, and the MassHealth behavioral health contractor must (1) provide to all adults 18 years of age or older, who are receiving medical care from the provider, the following written information concerning their rights, which information must reflect changes in state law as soon as possible, but no later than 90 days after the effective date of the change to (a) make decisions concerning their medical care; (b) accept or refuse medical or surgical treatment; and (c) formulate advance directives (for example, living wills or durable powers of attorney for health care, or health-care proxy designations); (2) provide written information to all adults about the provider's policies concerning implementation of these rights; (3) document in the patient's medical record whether the patient has executed an advance directive; (4) not condition the provision of care or otherwise discriminate against a patient based on whether that patient has executed an advance directive; (5) ensure compliance with requirements of state law concerning advance directives; and (6) educate staff and the community on advance directives. (B) When Providers Must Give Written Information to Adults. (1) A hospital must give written information at the time of the person's admission as an inpatient. (2) A nursing facility must give information at the time of the person's admission as a resident. (3) A provider of home health care or personal care services must give information to the person before services are provided. (4) A hospice program must give information to the person before services are provided. (5) An MCO, Accountable Care Partnership Plan, One Care Plan, or SCO Plan must give information at the time the person enrolls or reenrolls with the MCO, Accountable Care Partnership Plan, One Care Plan, or SCO Plan. (C) Incapacitated Persons. If a person is admitted to a facility in an incapacitated state and is unable to receive information or articulate whether he or she has executed an advance directive, the facility must include materials about advance directives in the information to the families or to the legal representatives, surrogates, or other concerned persons of the incapacitated patient to the extent it does so in accordance with state law. This does not relieve the facility of its obligation to provide this information to the patient once the patient is no longer incapacitated. 1. Introduction (130 CMR 450.000) (D) Previously Executed Advance Directives. When the patient or a relative, surrogate, or other concerned or related person presents the provider with a copy of the person's advance directive, the provider must comply with the advance directive, including recognition of the power of attorney, to the extent allowed under state law. Unless contrary to state law, if no one comes forward with a previously executed advance directive and the patient is incapacitated or otherwise unable to receive information or articulate whether he or she has executed an advance directive, the provider must note in the medical record that the person was not able to receive information and was unable to communicate whether an advance directive existed. (E) Religious Objections. No private provider will be required to implement an advance directive if such action is contrary to the formally adopted policy of such provider that is expressly based on religious beliefs, provided (1) the provider has informed the person or, if the person is incapacitated at the time of admission and unable to receive information due to the incapacitated condition or mental disorder, the person’s family or surrogate, of such policy prior to or upon admission, if reasonably possible; and (2) the person is transferred to another equivalent facility that is reasonably accessible to the person's family and willing to honor the advance directive. If the provider or the health care agent is unable to arrange such a transfer, the provider must seek judicial guidance or honor the advance directive. (130 CMR 450.113 through 450.116 Reserved) 1. Introduction (130 CMR 450.000)