10/24/2018

ODH Responds to LeadingAge Ohio DNR Comments

As previously reported in The Source, LeadingAge Ohio recently submitted comments on the five-year review of Ohio’s do-not-resuscitate protocol. This week, the Ohio Department of Health responded to those comments, providing clarification in some areas and amending rules in others. LeadingAge Ohio’s comments are below, followed by the responses of ODH staff noted in bold italics.  

Under 3701-62-04 Do-Not-Resuscitate Identification, the rule states:

(D) A do-not-resuscitate order documented on the form depicted in appendix A to this rule shall not be altered or modified in any way, including not being written upon to provide instructions or directions for the individual's care. Any medical orders, instructions, or information, other than those required elements of the form itself, that are written on an authorized do-not-resuscitate order form are not transportable and are not provided protections or immunities under this chapter.

While LeadingAge Ohio recognizes that instructions written on a form are not valid nor transportable, LeadingAge Ohio requests clarification that the DNR itself, even if written on, remains valid. For example, if a DNR form is completed properly except for an additional written-on instruction, should the do not resuscitate protocol be followed or is the entire order invalidated, necessitating a “full code”?

The writing of additional orders on the form does not invalidate the DNR and the DNR should still be followed.  The additional medical orders, however, are not provided immunity and do not have to be accepted by other health care providers. Any medical order that is not captured by the DNR order form itself should be documented and signed in the patient’s medical record and communicated with other providers.

Under 3701-62-05 Appendix The State of Ohio Do-not-resuscitate Protocol Approved by the Ohio Department of Health, on the first page it states:

A DNR Comfort Care or DNR Comfort Care – Arrest patient’s status is confirmed when the patient has one of the following:

*1. A DNR Comfort Care card or form completed for the patient.

*2. A completed State of Ohio living will (declaration) form that states that the patient does not want CPR (in the case of a patient who has been determined by two doctors to be in a terminal or permanently unconscious state).

3. A DNR Comfort Care necklace or bracelet bearing the DNR Comfort Care official logo.

*4. A DNR order signed by the patient’s physician or, when authorized by section 2133.211 of the Ohio Revised Code, a certified nurse practitioner (CNP), clinical nurse specialist (CNS)an  Advanced Practice Registered Nurse (APRN), or physician assistant (PA).

5. A verbal DNR order is issued by the patient’s attending physician, CNP, CNSAPRN, or PA.

* Copies of these items are sufficient.

LeadingAge Ohio believes that *1 should read “DNR Comfort Care wallet card or form completed for the patient.”

Change made.

In addition, it appears that ODH’s intent in this drafting of the rule is to give the State of Ohio living will a stronger role in the identification of an individual’s DNR wishes.  However, given that EMS can only respond to an order signed by the patient’s physician or, when authorized by section 2133.211 of the Ohio Revised Code, a certified nurse practitioner (CNP), clinical nurse specialist (CNS)an Advanced Practice Registered Nurse (APRN), or physician assistant (PA), LeadingAge Ohio seeks clarification on what role the living will (declaration) will play in an emergency situation without a corresponding order.

The inclusion of the living will language is not new, it has been part of the DNR protocol since the rules were first implemented. A living will declaration is not typically part of the emergency response situation, it is more common to have a living will presented in the hospital setting. Based on input from EMS personnel, it is very rare to have a patent or patient family member present a living will. If it were to occur, this situation would typically be addressed through a communication with the EMS organization Medical director.

Under 3701-62-05 Appendix The State of Ohio Do-not-resuscitate Protocol Approved by the Ohio Department of Health, on page 3, it states:

If family or bystanders request or demand resuscitation for a person for whom the DNR Comfort Care Protocol has been activated, do not proceed with resuscitation. Provide comfort measures as outlined above and try to help the family members understand the dying process and the patient’s choice not to be resuscitated.

LeadingAge Ohio strongly agrees with the intent of the rule in honoring patients wishes. However, is the first responder still protected under the rule if they carry out the demands of the family that is present and insists on resuscitative treatment in this emotionally charged and time-sensitive situation?

This scenario was part of the discussions during stakeholder and subcommittee meetings during the five year review. EMS personnel operate under the direction of the EMS organization Medical Director and typically engage the Medical Director in communications when this type of situation arise.  EMS are provided immunity for the actions they take as they pertain to a valid DNR order. If the EMS are presented with valid DNR identification and were to follow the DNR protocol in these situations despite family protest, they would be covered by this immunity.

That being said, we have been involved in discussions with EMS and been informed that it is not uncommon for EMS personnel to initiate CPR based on family request during these intensely emotional interactions. Once the patient is in the ambulance and removed from the tense scene, EMS would contact the Medical Director and inform them of the actions taken and then cease interventions and implement the DNR protocol as per the patient’s valid DNR order.

Under 3701-62-06 Revocation of DNR identification or DNR order, the rule states:

A person with DNR identification or a DNR order may revoke his or her DNR status by an oral or written request to receive CPR. The attending physician, CNP, CNS, or PA as provided in rule 3701-62-02 of the Administrative Code, authorized health care provider of a person with a DNR order may revoke the DNR order by issuing an order discontinuing the DNR order.

LeadingAge Ohio seeks clarification if there is a circumstance in which the durable power of attorney for health care has the ability to revoke a person’s DNR identification if the person is incapacitated.  Rule 3701-62-10 addresses this to some extent, but it does not speak specifically to revocation, which is the issue noted in this rule.

In the case of a DNR order that was requested by the Health Care Power of Attorney, the Health Care Power of Attorney may revoke that decision at any time. A Health Care Power of Attorney cannot revoke a DNR that was consented to by the patient unless there has been a substantial change in the patient’s condition as determined by the patient’s authorized health care provider. Typically, in these situations it is unlikely that there would be a significant change that improved the condition of the patient to the point that the Health Care Power of Attorney would want to revoke the DNR, but it is a possibility and may involve discussions with the provider and possibly the hospital legal and ethics representatives.

3701-62-10 Relationship of DNR orders and identification with living will declarations and durable powers of attorney for health care

LeadingAge Ohio is appreciative of the goal of this rule to ensure the individual’s expressed preferences always take precedence over surrogate decisionmakers and provide clarity on the hierarchy of decision making authority with regards to the DNR, Living Will and Durable Power of Attorney. However, the rule as written is complicated. Thus, LeadingAge Ohio encourages ODH to consider developing a visual decision matrix tool to illustrate the superseding authority described in rule to facilitate the effective education of clinicians in a variety of settings and circumstances who are responding to presented advance care planning documents.

ODH will consider the inclusion of a visual guide as a component of the training and guidance developed by the stakeholder group and made available to the public and providers prior to the implementation of the revised rules.