COVID-19: Hospitals Should Consider CoP Carefully Before Deciding on DNR Policy

By A.J. Plunkett

Hospitals that want to consider a universal policy of not resuscitating COVID-19 patients with heart or breathing failures should take steps to avoid violating patients’ rights under Medicare’s Conditions of Participation, say two former executives with The Joint Commission (TJC).

Facilities will need to involve administrators, providers, clergy, attorneys and members of the hospital’s ethics committee, says Jennifer Cowel, RN, MHSA, a former nursing surveyor and TJC executive and now CEO of Patton Healthcare Consulting. Hospitals also will need to seek an emergency waiver from CMS.

In addition, hospitals and clinicians should remember that decisions about critically ill patients made after the flooding of Hurricane Katrina stranded thousands in Louisiana became a legal nightmare in the aftermath, says Kurt Patton, MS, RPh, a former director of accredi­tation services for TJC and founder of Patton Healthcare Consulting.

As the nation grapples with the 2019 novel coronavirus that leads to COVID-19, clinicians and others in facilities—many in areas becoming overwhelmed by the number of patients with COVID-19 experiencing extreme problems breathing—have discussed whether to implement blanket “Do Not Resuscitate” (DNR) orders for COVID patients, according to news reports.

The main concern is the shortage of personal protective equipment (PPE) and exposure to fluids that could endanger the health and lives of the doctors, nurses and others involved in the resuscitation. Concerns include not only losing healthcare personnel who could become ill but also the amount of PPE needed for each attempt.

There is also the time it takes to don PPE in the critical minutes after a patient codes. “By the time you get all gowned up and double-gloved, the patient is going to be dead,” Fred Wyse, an ICU nurse in Michigan, told the Washington Post. “We are going to be coding dead people. It is a nightmare.”

But implementing such a blanket DNR requires careful thought and several actions, says  Cowel. Hospitals are required under federal law, §482.13 Condition of Participation: Patient’s Rights, “to protect and promote each patient’s rights.” Hospitals are also required to include a patient or patient’s representative as much as possible in decisions about care, including asking about advanced directives, according to CMS’ State Operations Manual of Interpretive Guidelines for state surveyors.

“If hospitals want a DNR on their COVID patients, the first route would be to follow their existing policy on obtaining advance directives on admission,” says Cowel. “If the patient is able to participate in that process, it would include a conversation with the patient and the licensed provider. Once the patient has declared their wishes to be a DNR, then the physician would need to enter this as an order.”

“The hospitals should all have policies that detail what extra steps should be taken with a patient who is not able to participate in the DNR conversation,” she notes.  “For example, if a patient is not cognitively able to participate in the conversation or they are too ill to have a conversation about advanced directives or a DNR, then the conversation would be the responsibility of a family member or someone assigned as the legal guardian.”

“If the hospital is considering a hospital-wide policy to administratively apply a DNR to all COVID patients, they should do three things. First, get a committee of providers, administrators, attorneys, clergy and compliance to discuss the specifics. Some hospitals have an ethics committee identified for situations such as this,” says Cowel.

This committee should ask a range of questions, she advises, such as “will this apply to all COVID patients — very, very broad — or to only ventilated patients or some other criteria to guide this decision?”

“As a parallel effort, the hospital should work with local and state health officials on their thoughts and concerns,” she adds.

“Finally, if a decision is made that they want to move forward with a DNR directive, the hospital should apply for a 1135 waiver because this would be in violation with patient rights CoPs,” Cowel says.

An 1135 waiver from CMS can be issued during a disaster or emergency when conditions necessitate modifying or temporarily lifting CMS requirements. The president has declared the spread of the 2012 novel coronavirus a national emergency, allowing healthcare facilities to seek a number of such waivers.

Healthcare professionals should also consider what happened during another untenable healthcare crisis that enveloped New Orleans and other parts of Louisiana after the 2005 Hurricane Katrina flooding, says Patton, recommending the book “Five Days at Memorial” by Sheri Fink, a physician-turned-journalist.

In the days after Katrina, Memorial Medical Center flooded, its generators failed and 45 patients ultimately died. A later investigation centered on why some of those patients died.

“Working under impossible conditions with a lack of clear leadership, clinicians made decisions they considered appropriate to the situation they were facing,” says Patton. “These decisions faced significant second guessing by professional boards, state agencies and even prosecutors when the disaster was over.”

He agrees with the advice to seek formal authorization before proceeding. “Individual decisions may be severely criticized after the fact.”

A.J. Plunkett is editor of Inside Accreditation & Quality, a Simplify Compliance publication.