California’s Epple Act to Long-Term Care Patient Representative Program: Solution to Nursing Home and Intermediate Care Facility Mentally Incapacitated Residents’ Care Gaps

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BY PAUL BORJA, RN, DNP, EdD, PhD, PHN, CCM, ACM-RN, CMAC, CMCN, CNML, CMGT-BC, CDONA, FACDONA, FAACM

Healthcare decision-making is always optimal when coming from the patient. However, if the patient cannot make those decisions, a surrogate decisionmaker would be the following route to obtain medical decisions for care planning. But what happens when no family, friends, dedicated decision-maker or power of attorney exists? This is a common theme experienced by nursing home residents who started with the capacity to make decisions but failed to appoint a decision-maker via advanced directive or a power of attorney before losing the said medical decision-making capacity.

California’s Health and Safety Code Section 1418.8, better known as the Epple Bill or Epple Act, was passed in 1982. This law allowed the interdisciplinary team to decide for the nursing home resident. However, in 2013, California Advocates for Nursing Home Reform and other petitioners challenged its constitutionality as it threatened residents’ civil rights, which the Alameda Superior Court agreed to in 2016.

In 2019, the California Court of Appeals upheld the constitutionality of the Epple Bill, allowing the interdisciplinary team of a physician, registered nurse and other staff associated with the resident’s needs to continue making decisions on behalf of and certainly in the best interest of the nursing home resident (Hooper Lundy Bookman, 2022).

However, a new requirement was made effective January 27, 2023, to enforce skilled nursing and intermediate care facilities to include a patient representative when they convene an interdisciplinary team. This is called the Long-Term Care Patient Representative Program, which was established by Welfare and Institutions Code sections 9260 through 9295. Before connecting with the program, the facility must do its due diligence to identify a friend or relative who can be part of the interdisciplinary team’s decision-making. After 72 hours of this attempt and it fails, the staff must contact this program to request for a long-term care patient representative to be assigned.

The public patient representatives are responsible for confirming that all criteria are met for an interdisciplinary team to convene, seeking to determine the resident’s wishes, informing the resident of his rights, and attending and participating in IDT review meetings. This representative must articulate whether the proposed intervention is “either consistent with the resident’s preferences or the best approximation of those preferences if known, or otherwise, whether the proposed intervention appears consistent with the resident’s best interests.” This representative is also a mandated report to identify and report any concerns regarding abuse and neglect of the resident. Finally, they must refer a resident who seeks judicial review to appropriate legal services (California Department of Aging, n.d.).

In other states and other institutional policies, this dilemma is solved mainly by a choice of decision-maker between a physician, ethics committee or guardianship. In North Carolina, physicians can make end-of-life decisions for unrepresented patients without the court’s approval. This can only occur if reasonable efforts are made to find a surrogate decision-maker. According to the AMA Code of Medical Ethics, physicians are responsible for engaging an ethics committee for a consultation to deliberate and offer recommendations regarding care planning. Lastly, the guardianship approach allows the court to appoint a public guardian legally authorized to make decisions for the patient (Schweikart, 2019).

Amid all of these, what is most important is considering the patient’s choice (if able), making decisions based on his/her best interests, and following state-mandated laws, as they are mainly aimed at both premises.

References

California Department of Aging (n.d.). Office of the Long-Term Care Patient Representative. Retrieved from https://www.aging.ca.gov/Providers_and_Partners/Office_of_the_Long_Term_Care_Patient_Representative/ on December 23, 2024.

Hooper Lundy Bookman (2022). HLB Intervenes In Appeal Over California’s “Epple Bill” And Convinces Court To Allow Skilled Nursing Facilities to Continue Participating In Vulnerable Residents’ Care Decisions. Retrieved from https://hooperlundy.com/hlb-intervenes-in-appeal-over-californias-epple-bill-and-convinces-court-to-allow-skilled-nursing-facilities-to-continue-participating-in-vulnerable-residents-care/ on December 22, 2024.

Schweikart, S. (2019). Who Makes Decisions for Incapacitated Patients Who Have No Surrogate or Advance Directive? AMA Journal of Ethics. Retrieved from https://journalofethics.ama-assn.org/article/who-makes-decisions-incapacitated-patients-who-have-no-surrogate-or-advance-directive/2019-07 on December 26, 2024.

Paul Borja, PhD, DNP, EdD, MBA, PHN, RN, CCM, ACM-RN, CMAC, CMGT-BC, CNML, CMCN, FACDONA, FAACM, is very passionate about education, health equity, and focus on social determinants of health. He has been in the healthcare industry for 18+ years as a nurse, educator, case manager and leader in different facets. Paul has always sought for opportunities to serve his community and the profession he is in. Paul looks forward to giving more of his time and expertise to important causes. He is a multi-site director for Adventist Health Lodi Memorial and Dameron Hospitals and an adjunct professor of administration and management at California Coast University. He was a recipient of the Kaiser Permanente Continuity of Care Excellence Award in 2017 and 2018. He had recently been featured by Aidin for their #CMSpotlightAward. He is currently the CMSA National Board Secretary and the president of CMSA Sacramento Chapter. He is a Fellow for the American Academy of Case Management and Fellow of the Association of Certified Directors of Nursing Administration.

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