California’s nursing facilities are anxiously awaiting any word about the requirement for a non-facility-affiliated patient representative to serve on every interdisciplinary team (IDT) convened to make decisions on behalf of an unrepresented, incapacitated resident.  It is hoped that a further delay will be granted for enforcement of this requirement (see below).  Under Health & Safety Code 1418.8 (the “Epple Law”), the IDT has been able to make decisions for such residents since the 1990s, but a 2013 lawsuit (CANHR v. Chapman and subsequent CDPH directors) resulted in a decision that brought that ability into question.  

Ultimately, the Court of Appeal ruled in 2019 that HSC 1418.8 was constitutional and could in fact be utilized for virtually all types of medical decisions (including use of all psychotropic medications, hospice election, POLST completion, and other end-of-life orders), but that some new safeguards would be required for the process, including a mandate that a patient representative (not affiliated with the facility) be part of the team, and a requirement that the facility provide notice to the resident and their representative of the finding of incapacity, the proposed medical decision, and the right to seek judicial review.  

The original trial court issued its decision and final order in this case in January 2020, and it allowed for an 18-month delay in the mandate for a patient representative.  It was hoped that the ombudsman’s office would continue to serve in this role (as they had for many years prior to the court case), but they elected not to participate in these meetings any more.  The waiver of the patient representative comes to an end on July 27, 2021.  Unfortunately, virtually no facilities have had success in finding a patient representative who has been willing to step up to participate on the Epple IDT.  Because of this, legislation has been proposed to stand up a new Office of the Long-Term Care Patient Representative through California’s Department of Aging.  There is currently a trailer bill that contains the details of how this process will work, which reflected a collaborative effort among many stakeholders including the California Department of Aging, the California Department of Public Health, legislative counsel, the California Hospital Association, the California Association of Health Facilities, California Advocates for Nursing Home Reform, and CALTCM—but obviously it will take more time to get these public patient representatives hired and trained.  So, facilities are understandably worried about what they will do in the short term after July 27 for these residents, since decisions requiring informed consent (e.g., use of antipsychotics) must be approved by the IDT quarterly, even for people already receiving an intervention.  More details about the contents of the trailer bill will be forthcoming in a future WAVE article.