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Legal Alert

Health and Safety Code Section 1418.8 ("Epple") in 2023: Updates and Reminders

Health and Safety Code Section 1418.8 ("Epple") in 2023: Updates and Reminders

Residents of Skilled Nursing Facilities ("SNFs") and Intermediate Care Facilities ("ICFs") often need medical interventions that require informed consent. Some residents, however, lack the capacity to give informed consent and have no "legal decisionmaker" to consent on their behalf. Section 1418.8 of California's Health and Safety Code (which codifies the "Epple Bill" as modified after the Court of Appeal's decision in California Advocates for Nursing Home Reform, et al. v. Smith (2019) 37 Cal.App.5th 814) sets forth rules that these facilities must follow to implement interventions requiring informed consent for unrepresented residents.

Although the majority of the requirements under section 1418.8 have been in effect since the beginning of 2022, today, January 27, 2023, SNFs and ICFs will be required to include a patient representative on all Interdisciplinary Teams ("IDTs") convened under section 1418.8. Although this requirement is written into the language of section 1418.8, it had been stayed by the Court to allow the State to create The Long-Term Care Patient Representative Program (the "Program").1 The Program was created to assist facilities to include a patient representative on all section 1418.8 IDTs where it is unable to identify a representative on its own.

When the Program appoints a patient representative, the representative will have multiple responsibilities, including (1) confirming the requirements for convening a 1418.8 IDT have been met, (2) attempting to determine the resident's wishes through interviews and document review, (3) reviewing facility policies and procedures, and (4) participating in the IDT review of the proposed medical intervention. The patient representative's basic function on the IDT is to share with the members whether the proposed intervention is consistent with the resident's wishes, if possible. Notably, a patient representative appointed by the Program is prohibited from participating in an IDT where the intervention would "directly and inexorably" lead to death. This does not, however, prevent the patient representative from participating in an IDT where the proposed intervention is to create or revise a POLST, a Do Not Resuscitate (DNR), a comfort care order, or an election of hospice care.

As the patient-representative requirement goes live, now is a good time to reflect on the overarching steps required as part of the section 1418.8 medical intervention process. In general, the steps required to undertake a medical intervention for an unrepresented resident in a SNF or ICF under non-emergent circumstances include the following:

  1. The physician determines that a resident needs an intervention requiring informed consent and determines that the resident lacks capacity to provide informed consent.
  2. The SNF/ICF must use due diligence to search for a legal decisionmaker for the resident and, if one is not identified, for a patient representative. As part of its due diligence, the SNF/ICF must interview the resident, review the medical records, and consult with staff, family, and friends. It is important to ensure this process is well-documented.
  3. If the SNF/ICF cannot identify a legal decisionmaker or a patient representative within 72 hours of the physician's determination that the resident is unable to provide informed consent, the SNF/ICF must submit a request for a patient representative to the Program via the California Patient Representative Information System.
  4. The SNF/ICF must provide appropriate pre-IDT notices (orally and in writing) to the resident and patient representative. The Program provides standardized notices that should be used for this purpose and can be found on the Program's website.
  5. The SNF/ICF must conduct an IDT review of the prescribed medical intervention prior to its administration. As of January 27, 2023, the IDT may not occur without the participation of a patient representative.
  6. The SNF/ICF must provide notice (orally and in writing) of the outcome of the IDT to the resident and patient representative.

It remains to be seen whether the implementation of the Program will run smoothly and what specific issues may arise. SNFs/ICFs will be required to submit certain information to the Program on a quarterly basis, including the number of IDTs conducted under section 1418.8, the outcomes, and information about any emergency medical interventions. As SNFs/ICFs begin to implement the full requirements of section 1418.8, we recommend consulting with legal counsel early in the process to ensure compliance with section 1418.8's requirements.

1 The Office of the Long-Term-Care Patient Representative

For More Information, Please Contact:

Jillian Donovan
Jillian Somers Donovan
San Francisco, CA
Madeline Anguiano
Madeline Anguiano
Los Angeles, CA