Legislation Recently Introduced to Clarify Treatment Options for Incapacitated Residents

On June 30th, a bill was “gut and amended” to include new language attempting to “fix” the problem created by the Alameda Superior Court decision on the CAHNR v. Chapman ruling issued this past year. On June 24th 2015, the Alameda Superior court ruled that a California law allowing nursing homes to make medical decisions on behalf of mentally incompetent residents is unconstitutional. The bill, which is being sponsored by the California Department of Public Health, was introduced to help clarify treatment options for residents who lack the capacity to make medical decisions. It is our understanding that the department is still appealing the ruling despite sponsoring this legislation.

LeadingAge California has reviewed the initial language and can support some of the provisions outlined. We agree that there are likely some additional due process protections needed to be placed into law, including: notifying patients that they have been deemed unable to make medical decisions, proper documentation of the notification and other transparent practices from the provider.

However, the bill also contains a troublesome provision that would create a very complicated and burdensome system for administering timely and appropriate care for certain patients. The bill would require facilities to host (at the expense of the facility) a quasi-judicial “hearing” anytime there is a need for the administration of anti-psychotics. This “hearing” would bring together the patient, their attending physician, an independent physician who does not have a relationship with the patient, an appointed patient advocate, and an interpreter if necessary. Both the independent physician and patient advocate must meet an extensive list of qualifications, and again, the costs associated with this hearing are to be borne entirely at the expensive of the facility.

LeadingAge California believes that the potentially adverse impacts to patients needing these medications, and the facilities they reside, is significant. Skilled nursing facilities, especially those in rural areas, will likely find that treating these patients is nearly impossible and may avoid admitting them into their facility. This provision will likely force the default placement for care for these residents in hospital emergency rooms, essentially guaranteeing the same reality for residents that was brought about from the Superior Court ruling.

At this time, LeadingAge California will be taking an oppose unless amended position as we continue to work with Senator Ed Hernandez and the California Department of Public Health. We are also working with other statewide associations who are joining us in opposition to look at alternatives to treat these patients. It should be noted that since this bill is a “gut and amend,” it does not need to follow the normal legislative process and can thus be expedited. The bill has currently been referred to Senate Health Committee, though no date for the hearing has been set.