I just reviewed another software product that claimed to
follow state laws when creating Health Care Directives. This software is sold by, in my opinion, a
well-respected company that used well-respected suppliers, to create the
software content.
NOTE: I am
not naming the companies and I blocked out some information from screen shots
because my intent is to inform people of the risks, not, in any way, harm the
software companies.
So what happen to make me write this blog? After using the software, I printed out my
Health Care Directives document had it this clause:
“I intend this document to be my Declaration under Ohio law. However,
if any of my health care instructions go beyond what Ohio authorizes, I request
that those instructions be respected and followed in keeping with my right to direct my own
health care as guaranteed by the U.S. Constitution.”
So I thought, Wow!
That would be great if a simple sentence like this would solve all the
state laws on Health Care Directives issues. So I did some research and bummer L.
The United States
Constitution does not set forth an explicit right to health care, and the
Supreme Court has never interpreted the Constitution as guaranteeing a right to
health care services from the government for those who cannot afford it. Source
Then I came
across this same kind of “don’t worry about state laws” in another software
company’s Health Care Directives website that had these messages….
“Someone” that
might make this type of claim might be the state Attorney Generals! Maybe we should ask them – here is the
list.
“Doesn’t follow some rules on the form that
you were supposed to use or the signatures of witnesses or notaries that you
were supposed to get” – WOW! The
wording is seems to be very defensive and almost childlike. Instead of taking the time to learn the
state laws and provide a solution that complies with state laws, it seems the
software developer thinks it is OK to just add a generic statement on the
document.
Can you imagine if TurboTax just stated “in certain states,
this data is required and in others don’t have to provide it – you figure it
out!
This is not
about good or bad software companies.
This is about you.
You took the
time to have the conversation and document your individual preferences so that
your family, friends, and caregivers would not have to go through it without
them knowing what you want. Imagine the
stress to your family and caregivers, the people that you care about and the
reason why you took the time to write advance care directives, when the
provider (EMS, ED, ICU, SNF, LTC) cannot honor your wishes due to a failure to
comply with a state law requirement(s) that a software developer simply did not
spend the time to put into their software.
All the health care planning goes out the window. The impact on you personally is “do
everything default level of care” and you get aggressive care that you did not
want. The effect on your family and
friends and care givers is that now we have to “ask everyone their
opinion.” You do not want your family to go through that
level of stress, which is probably higher than if there were never any document
created. “We thought all of this was
taken care of” and now the one child that has lived out of state and not been
around for over 20 years gets a say in the matter? FYI – there are specific state laws on who
can be your Health Care Power of Attorney.
If you are a
hospital or post-acute provider, will you honor an Advance Directive that does
not comply with state law? If you are an
insurance payor, will you pay for aggressive services rendered that where not
desired? How are you going to manage a
network that crosses state lines?
On Nov 26,
2014, CMS updated surveyor guidance for advanced directives. F-155, related to
advance directives and experimental research, is one of the most heavily revised
regulations, including one of the key elements for severity determination for
F155 includes “Resident received treatment based on the consent of an
individual who was not the resident or his/her representative, in accordance
with State Law.” Source. So the buck stops with you and your employees instead of the software
vendors that allowed your patient to create documentation that does not comply
with state laws!
Governmental
regulations – whether adopted by federal or states – can be daunting and
present a profound challenge to the way you do business and manage personal
affairs. State and Federal laws change frequently and often with little or no
general warning. It only makes sense
that compliance with state and federal laws should be the responsibility of a
software vendor, not you and not your employees.
This is my
personal opinion
