N.J. Admin. Code § 15A:3-2.4

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

Section 15A:3-2.4 - Procedure for residents incapable of making healthcare decisions

(a) Unless one or more of the circumstances set forth in 15A:3-2.3(d) apply, the surrogate decision-maker for the resident shall notify the Office, in writing, of a contemplated decision to withhold or to withdraw life-sustaining treatment from the resident.

(b) The resident's attending physician or advanced practice nurse shall provide to the Office, in writing, evidence of the resident's condition.

(c) The Office shall advise the facility administrator, in writing, of the proposal to withhold or to withdraw life-sustaining treatment.

(d) The Office shall then inquire into the resident's intent, if any, pertaining to the proposal to withhold or to withdraw the life-sustaining treatment. In making its intent inquiry, the Office shall:

1. Inquire into whether there exists any declaration or designation including an oral declaration or designation;

2. Make reasonable efforts to interview the resident's family and friends, the attending physician, healthcare providers, employees of the facility at which the resident is residing, and others having knowledge of the resident's intent; and

3. Do anything that the Office, in its discretion, deems necessary to discover the resident's intent.

(e) Concurrent with its intent inquiry, the Office shall engage the services of two physicians, unaffiliated with the facility and with the attending physician, to confirm the resident's medical condition and prognosis.

1. The Office shall provide to each physician, in writing, an explanation of the areas that must be covered in the physician's report. The areas are:

i. The date(s) of the physician's examination(s) and the identity of anyone assisting or accompanying the physician;

ii. A synopsis of the physician's examination(s), the resident's medical history on which the physician bases his or her conclusions and any limitations on either, which the physician believes significant. The physician should also advise whether the medical history indicates whether the resident ever was competent during adult life;

iii. The resident's diagnosis and condition;

iv. The medical alternatives available including the various treatment options and the risks, side effects and benefits of each of those options;

v. The resident's prognosis, both with and without the life-sustaining treatment which has been proposed to now be withheld or withdrawn;

vi. Whether the resident is in a persistent vegetative state because there is no reasonable possibility of the resident's recovery to a cognitive, sapient state;

vii. The likely outcome if treatment is discontinued or withheld;

viii. Whether the resident currently has the mental and communicative capacity to reasonably understand his or her own condition, the nature and effect of the medical treatment proposed to be withheld or withdrawn, the attendant risks in selecting such treatment, and to decide whether or not to submit to such treatment;

ix. A brief description of the resident and whether the resident was able to communicate anything about his or her own condition to the physician;

x. The resident's present level of:

(1) Physical functioning;

(2) Sensory functioning;

(3) Emotional functioning; and

(4) Cognitive functioning;

xi. The degree of pain resulting from the resident's medical condition, the resident's medical treatment, and terminating or withholding treatment, including the degree, expected duration and constancy of pain (with and without treatment) and the possibility that the pain could be reduced by drugs or other means short of terminating or withdrawing the life-sustaining treatment;

xii. The resident's life expectancy with and without the treatment in question. In particular, whether or not the resident, even with the life-sustaining treatment, likely will not live more than one year from the date of the physician's examination; and

xiii. Whether the patient likely will regain capacity, with or without the proposed treatment.

2. After reviewing the Office's correspondence, each physician shall acknowledge, in writing, his or her agreement to perform the examination.

3. Each physician shall then travel to the facility and perform the examination. An Office representative shall be at the facility to assist each physician.

4. Each physician shall promptly provide to the Office a written report of the physician's conclusions.

5. The identity of each physician and the contents of each report shall be confidential.

6. Each physician shall be compensated by one or more of the following:

i. The resident's estate;

ii. The resident's family;

iii. The surrogate decision-maker;

iv. The facility;

v. Medicare or Medicaid; and/or

vi. If the above sources are insufficient to compensate the physicians, the Office of the Ombudsperson shall compensate the physicians, within the limitations of the Office's budget.

(f) Upon completion of the intent inquiry and the physicians' examinations, if both physicians conclude that the resident is permanently unconscious or in a persistent vegetative state, the surrogate decision-maker may withhold or withdraw the life-sustaining treatment if:

1. There exists clear and convincing evidence that the resident would have refused the life-sustaining treatment in the circumstances involved; or

2. If there does not exist clear and convincing evidence regarding the resident's attitude toward life-sustaining treatment, the surrogate decision-maker may withhold or withdraw the life-sustaining treatment if both physicians have also concluded that there is no reasonable possibility that the resident will recover to a cognitive, sapient state. Additionally, the attending physician must concur with the conclusion of both independent physicians and the Ombudsman concurs that the withholding or withdrawing of treatment is appropriate under the circumstances.

(g) A surrogate decision-maker may seek a determination in a court of competent jurisdiction where the Ombudsperson does not concur.

(h) If (f)2 above is satisfied, the resident's family member must also concur with the surrogate decision-maker's decision. A family member or domestic partner, as defined in section 3 of P.L. 2003, c. 246, 26:8A-3 who opposes or disagrees with the decision of the surrogate decision-maker retains the right to challenge that decision in a court of competent jurisdiction.

(i) Upon completion of the intent inquiry and the physicians' examinations, if both physicians find that the resident is not permanently unconscious or in a persistent vegetative state, but is incapable of making a healthcare decision, is suffering from severe and permanent mental and physical impairments, and probably would have less than one year to live from the date of the examination with or without life-sustaining treatment, the surrogate decisionmaker may withhold or withdraw the life-sustaining treatment if:

1. There exists clear and convincing evidence that the resident would have refused the life-sustaining treatment in the circumstances involved;

2. There exists some trustworthy evidence that the resident would have refused the life-sustaining treatment in the circumstances involved, and on the basis of the medical evidence, the surrogate decision-maker is satisfied that it is clear that the burdens of the resident's continued life with the treatment outweighs the benefit of the resident's continued life and the Ombudsperson concurs that withholding or withdrawing of treatment is appropriate under the circumstances; or

3. There exists no evidence of the resident's intent, but on the basis of the medical evidence, the net burdens of the resident's life with the treatment clearly and markedly outweigh the benefits that the resident would derive from life. Additionally, the recurring, unavoidable and severe pain of the resident's life with the treatment would be such that the effect of administering the life-sustaining treatment would be inhumane; and the Ombudsperson concurs that withholding or withdrawing of treatment is appropriate under the circumstances.

(j) The surrogate decision-maker may seek a determination in a court of competent jurisdiction where the Ombudsperson does not concur.

(k) If either of (i)2 or 3 above is satisfied, the resident's family member must also concur with the decision made by the surrogate decision-maker. Any family member or domestic partner who opposed or disagrees with the decision of the surrogate decision-maker retains the right to challenge that decision in a court of competent jurisdiction.

(l) In the absence of bad faith, no participant in the decision-making process shall be civilly or criminally liable.

N.J. Admin. Code § 15A:3-2.4