N.J. Admin. Code § 10:49-9.15

Current through Register Vol. 56, No. 11, June 3, 2024

Section 10:49-9.15 - Advance directives

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

"Advance directive" means a written expression of a patient's preferences regarding the provision, withholding or withdrawal of a medical service, treatment or procedure in the event that the patient subsequently lacks decision making capacity. An advance directive may include a proxy directive or an instruction directive, or both.

"Decision making capacity" means a patient's ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of each, and alternatives to any proposed health care, and to reach an informed decision. A patient's decision making capacity is evaluated relative to the demands of a particular health care decision.

"Declarant" means a competent adult 18 years of age or older who executes an advance directive.

"Health care decision" means a decision to accept or to refuse any treatment, service or procedure used to diagnose, treat or care for a patient's physical or mental condition, including life-sustaining treatment. "Health care decision" also means a decision to accept or to refuse the services of a particular physician, nurse, other health care professional or health care institution, including a decision to accept or to refuse a transfer of care.

"Health care institution" means institutions, facilities, and agencies licensed, certified, or otherwise authorized by State law to administer health care in the ordinary course of business, including hospitals, nursing homes, residential health care facilities, home health care agencies, personal care service agencies, and hospice programs operating in this State, mental health institutions, facilities or agencies, or institutions, facilities and agencies for the developmentally disabled. For purposes of this section, "health care institution" also means a managed care organization contracted pursuant to N.J.A.C. 10:74 to provide medical services to beneficiaries of the New Jersey Medicaid/NJ KidCare/NJ FamilyCare program.

"Health care professional" means an individual, as opposed to a health care institution, licensed by this State to administer health care in the ordinary course of business or practice of a profession.

"Health care representative" means the individual designated by a declarant pursuant to the proxy directive part of an advance directive for the purpose of making health care decisions on the declarant's behalf, and includes an individual designated as an alternate health care representative who is acting as the declarant's health care representative in accordance with the terms and order of priority stated in an advance directive.

"Instruction directive" means a writing which provides instructions and direction regarding the declarant's wishes for health care in the event that the declarant subsequently lacks decision making capacity.

"Life-sustaining treatment" means the use of any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increase the expected life span of a patient.

"Nurse" means a person currently licensed to practice as a registered professional nurse who is certified by the New Jersey State Board of Nursing in accordance with N.J.A.C. 13:37-7, and with 45:11-23 et seq., or similarly licensed and certified by a comparable agency of the state in which he or she practices.

"Other health care professionals" means licensed health care professionals other than physicians and nurses.

"Patient" means an individual who is under the care of a physician, nurse or other health care professional.

"Physician" means an individual (M.D. or D.O.) licensed to practice medicine and surgery in this State.

"Proxy directive" means a writing which designates a health care representative in the event the declarant subsequently lacks decision making capacity.

(b) Participating health care institutions shall establish written policies and procedures concerning the rights of patients to make decisions regarding their medical care and their right to execute advance directives. In addition to policies affirming patients' rights:

1. Private religiously-affiliated health care institutions may develop institutional policies and practices defining circumstances under which they will decline to participate in the withholding or withdrawing of specific measures to sustain life. Such policies and practices shall be written, and shall be properly communicated to patients and their families and health care representatives before or at the time of the patient's admission or enrollment. If the institution's policies and practices appear to conflict with the legal rights of a patient wishing to forego health care, the health care institution shall attempt to resolve the conflict. If a mutually satisfactory accommodation cannot be reached, the health care institution shall take all reasonable steps to effect the appropriate, timely and respectful transfer of the patient to the care of another health care institution appropriate to the patient's needs, and shall assure that the patient is not abandoned or treated disrespectfully; and

2. Health care institutions shall include in their policies a statement informing physicians, nurses and other health care professionals of their rights and responsibilities, to assure that such rights and responsibilities are understood, including the right to decline to participate in withholding or withdrawing life-sustaining treatment, in accordance with sincerely held personal or professional convictions, and to provide a forum for discussion and consultation on the subject of such rights.

(c) Nothing in this section shall be construed as restricting, modifying or replacing the requirements established for health care institutions by the Department of Health and Senior Services (see N.J.A.C. 8:36, 8:39, 8:42, 8:43, 8:43C and 8:43G for specific requirements).

(d) In addition to developing the written policies referred to in (b) above, health care institutions shall:

1. Furnish patients with written information about their rights to accept or refuse treatment, and to formulate advance directives. This information shall also be made available on request to patients' health care representatives, families and other interested parties;

2. Note in each patient's medical record whether that patient has executed an advance directive;

3. Provide (individually or with others) for education of staff and the community on issues concerning advance directives;

4. Provide care or other services without discrimination based on whether or not the individual has executed an advance directive; and

5. Ensure compliance with State law regarding advance directives (see 26:2H-53 et seq.).

(e) Health care institutions shall distribute written information concerning advance directives to individuals:

1. In the case of a hospital, at the time of the individual's admission as an inpatient;

2. In the case of a nursing facility, at the time of the individual's admission as a resident;

3. In the case of a provider of home health care, personal care assistant services or private duty nursing services, in advance of the individual coming under the provider's care;

4. In the case of a hospice program, at the time the individual initially receives hospice care from the program; and

5. In the case of a managed care organization, at the time the individual enrolls in the program.

(f) A physician, nurse, or other health care professional may decline to participate in the withholding or withdrawing life-sustaining treatment, in accordance with sincerely held personal or professional convictions, consistent with the provisions of 26:2H-62(b) and (c).

N.J. Admin. Code § 10:49-9.15

New Rule, R.2001 d.294, effective 8/20/2001.
See: 32 N.J.R. 2687(b), 33 N.J.R. 2808(a).
Amended by R.2008 d.230, effective 8/4/2008.
See: 40 N.J.R. 984(a), 40 N.J.R. 4531(a).
In definition "Physician" in (a), inserted "(M.D. or D.O.)".