​In a highly publicized recent case in California, a registered nurse working in an independent living facility refused to initiate cardiopulmonary resuscitation (CPR) on an elderly resident who was experiencing respiratory distress.  The nurse refused to start CPR even when the 911 dispatcher begged her to start CPR or to find someone, even a bystander, who would do so.  The nurse still refused, stating that the facility had a no-CPR policy at the time.

This case caused consternation among long term care providers around the country.  In our own practice, we’ve had numerous requests to review skilled nursing facility (SNF) Do Not Resuscitate (DNR) and CPR policies because of this case. 

On October 1, 2013, the Centers for Medicare & Medicaid Services (CMS) issued new surveyor and provider guidance on CPR/DNR policies and practices in SNFs that leaves no doubt about  1) an SNF’s obligations to provide CPR consistent with residents’ advance directives and 2) the requirement that SNFs have policies and procedures consistent with this requirement.

In the guidance, which is effective immediately, CMS makes clear the following:

• Under both OBRA regulations governing SNFs and regulations promulgated under the federal Patient Self-Determination Act for most health care providers, SNFs have an obligation to initiate CPR for a resident suffering cardiac/respiratory distress unless:

1. The resident has an advance directive declining CPR (including a valid DNR order)

2. The resident has no advance directive, meaning that the facility should default to full care, including CPR, absent a directive by the resident or his/her legal surrogate declining CPR

3. The resident evidences obvious signs of clinical death (i.e., rigor mortis, dependent lividity, decapitation, transaction, or decomposition)

4. Initiating CPR could cause injury to the rescuer;

• All SNFs must have staff trained in CPR under American Heart Association guidelines at all times and on all shifts;

• Simply calling 911 when residents suffer cardiopulmonary distress is not sufficient; and

• All SNFs must have policies and procedures consistent with these requirements.

CMS further states that SNFs may not establish and implement facility-wide “no CPR” policies because this violates residents’ rights to formulate advance directives under FTag 155 and the federal Patient Self-Determination Act.  CMS acknowledges that available data shows the rate of success from CPR in the elderly population is low, somewhere between 2% to 11%.  However, CMS also notes that the SNF population is changing, with many more younger residents coming to SNFs for short-term therapy and rehabilitation.  According to CMS, its 2012 Nursing Home Data Compendium shows that roughly one in seven SNF residents in 2011 were under the age of 65. 

What Providers Should Do

In light of this new CMS guidance and the recent attention we’ve noted in surveys on end-of-life issues, SNFs should do the following:

• Review your CPR/DNR policies to ensure they are consistent with the CMS guidance.

• Train all staff on those policies and procedures and do this periodically.

• Review your facility admissions processes to ensure that admissions personnel understand and follow them.  Admissions personnel are often on the front line in determining and documenting an incoming resident’s advance directives and end-of-life wishes.  Make sure they understand the difference in living wills, health care powers of attorney, and DNR orders and that they read and understand these documents. Also make sure they spot any inconsistencies in those documents and resolve them with the resident, his/her legal surrogate if the resident is not competent, the attending physician, family members, and/or facility management, as appropriate.

• Ensure that you have a reliable, consistent system for all staff to know immediately a resident’s end-of-life wishes so that CPR can be initiated or withheld immediately in a crisis, consistent with the resident’s expressed wishes. Most research shows that brain injury or brain death can occur or begin within four to six minutes of a respiratory failure, so time is of the essence.

Finally, for SNF providers who also have an adult care home or independent living unit or wing, remember that CMS regulates only those facilities that are certified for Medicare and/or Medicaid.  So this new CMS guidance does not apply to noncertified adult care homes or independent living units.  The requirements for CPR in those types of facilities are governed solely by state law.