Guest Bloggers: Andrea Szumlinski DeLand, Associate Principal and John Paul Hessburg, Principal at Kitch Drutchas Wagner Valitutti & Sherbrook
In early March national headlines claiming that a long term care provider refused to provide CPR to a resident in distress resulting in death raised concerns within the long term care community across the country. In response, care providers at every level have begun to carefully review state laws and corresponding facility policy.
Much like other issues in long term care, knowledge is the key. Not only must providers know the law in their jurisdiction, it is imperative that they clearly understand its requirements and its practical implications.
In the skilled setting, the performance of CPR is not specifically required by the federal rules or regulations. However, skilled facilities are required to abide by the standard of care. It would be difficult to assert that the standard of care in a skilled facility does not require the initiation of CPR, especially when licensed nurses, respiratory therapists, and physicians are routinely providing care in this setting. In fact, skilled facilities have been cited and fined for failing to administer CPR in accordance with the standard of care and in accordance with the resident’s wishes. Moreover, the failure to initiate CPR in accordance with a resident’s advanced directive in a skilled facility may expose a provider to a wrongful death lawsuit.
Within the assisted and independent settings, whether there exists a duty to initiate CPR becomes more of a question. As always, facilities should first refer to state specific licensure rules and other relevant laws. Should the law permit a facility to implement a “No CPR” policy, regardless of a person’s advanced directives, it is imperative that all staff members, family and residents clearly understand the policy.
A concise stand-alone document that makes the facility’s policy unambiguous should be presented upon admission. The policy should then be explained by the facility representative to all interested persons upon admission. Residents and/or legally responsible parties should sign the stand-alone document acknowledging that they understand the policy and its effect. It may be worthwhile for the facility to audit each resident’s admission materials to assure that all appropriate parties have signed. It is also a prudent practice to review this issue with the resident and family annually.
Again, if state law permits facilities to have a “No CPR” policy and the facility adopts such a policy, then the facility should make sure that all residents, family members and staff are regularly educated on same. It is also important to include in the policy that although a non-skilled facility may choose (when permitted by state law) to implement a policy wherein CPR is not performed, staff should always call 911 in the event of an emergency.
As a final risk management step, policies and procedures related to emergency services should be reviewed for compliance with all relevant laws by legal counsel. This ensures your facility policy and practice will withstand scrutiny if challenged. While the media hype surrounding the California case quickly quieted down, the “true” facts are worth noting. The facility involved was NOT a SNF. The staff member involved was not a nurse; the facility did not have a policy precluding staff from offering assistance; and, most importantly, the resident, as stated by her family, DID NOT WANT CPR performed.
Take the time to put a legally sound policy and practice in place and it will pay off even when challenged.
Andrea Szumlinski DeLand focuses her practice on long-term care, including regulatory matters and civil litigation. She joined the firm in 2002 and is licensed to practice in Michigan, as well as the U.S. District Court Eastern District of Michigan.
 Oceana County Medical Care Facility, CR1993 (2009) ; Epsom Healthcare Center, CR1749 (2008) ; Omni Manor Nursing Home, CR1084 (2003), aff’d DAB No. 1920 (2004) ; “To Code or Not To Code – Considerations and Consequences,” Alan C. Horowitz, Assistant Regional Counsel, US Department of Health and Human Services.