Medicare and Medicaid programs; advance directives--HCFA. Final rule

This final rule responds to public comments on the March 6, 1992 interim final rule with comment period that amended the Medicare and Medicaid regulations governing provider agreements and contracts to establish requirements for States, hospitals, nursing facilities, skilled nursing facilities, providers of home health care or personal care services, hospice programs and managed care plans concerning advance directives. An advance directive is a written instruction, such as a living will or durable power of attorney for health care, recognized under State law, relating to the provision of health care when an individual's condition makes him or her unable to express his or her wishes. The intent of the advance directives provisions is to enhance an adult individual's control over medical treatment decisions. This rule confirms the interim final rule with several minor changes based on our review and consideration of public comments.     

Law, autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.     

Medicare and Medicaid programs; advance directives--HCFA. Interim final rule with comment period

This interim final rule amends the Medicare and Medicaid regulations governing provider agreements and contracts to establish requirements for States, hospitals, nursing facilities, skilled nursing facilities, providers of home health care or personal care services, hospice programs and prepaid health plans concerning advance directives. An advance directive is a written instruction, such as a living will or durable power of attorney for health care, recognized under State law, relating to the provision of health care when an individual's condition makes him or her unable to express his or her wishes. The intent of these provisions is to enhance an individual's control over medical treatment decisions. This rule implements sections 4206 and 4751 of the Omnibus Budget Reconciliation Act of 1990 (OBRA '90), Public Law 101-508.     

Advance directives and the persistent vegetative state in Victoria: a human rights perspective

With advances in medical technology, it is now possible to sustain the life of a person in a persistent vegetative state (PVS) until a decision is made to withhold or withdraw life-sustaining treatment. Who makes that decision? Under the Medical Treatment Act 1988 (Vic) there is no legally enforceable right for a person to choose, in advance, what intervention that person will and will not accept if he or she ends up in a PVS. The best that can be achieved is that a person can appoint an agent who is empowered to refuse medical treatment on the person's behalf in the event of incompetence. It is suggested that this mechanism ignores two fundamental human rights: self-determination and the inherent right to dignity. This article proposes the development of an advance directive mechanism that provides for a person to refuse, in advance, specified intervention, thereby respecting fundamental human rights and alleviating the existing need for an agent to second-guess a person's desires and best interests.     

The Justice Model in the Juvenile Justice System: Washington State's Experience

In 1977, the Washington State Legislature enacted radical modifications of its juvenile justice code. Explicitly abandoning the parens patriae philosophy of the juvenile justice system, a "justice" philosophy was adopted. Provisions of the law include a determinate sentencing structure, the divestiture of status offenses, greater due process rights for juveniles, and a formalized diversion process which emphasizes accountability rather than treatment. This paper brings together the available research on the implementation of the law to assess how the introduction of a justice approach has influenced equality, fairness, and punishment levels in Washington State's juvenile justice system.     

The law and practice associated with advance directives in Canada and Australia: similarities, differences and debates

This article is a summary of research that investigated the Canadian and Australian legislative framework associated with advance directives in health care. The research focused on the context in which older people are encouraged to use advance directives. These are directions about refusal of medical treatment given in advance of incompetence. An advance directive may be given in a written document (living will) expressing one's wishes, by appointing another person (proxy) to make the decisions, or as a combination of the two. A lack of consistency and clarity about the terminology was found in both countries. This could be a barrier for older people to express their wishes in advance. Several confusing issues were also identified with the legislation related to advance directives. There appears to be a move towards appointing a substitute decision-maker, but with significant differences across the Australian States and in Canadian Provinces. The "conversation" about future decisions emerged as an important theme, together with an emphasis on the process of "advance care planning" replacing the focus on advance directive forms.     

Special report on patient care. New OBRA 1990 requirements regarding advance directives

The provisions of OBRA 1990 regarding advance directives reflect a heightened awareness in Congress of the need to recognize individual rights and preferences in the provision of health care. In the wake of recent decisions such as Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990) (see Newsletter, Vol. 5, No. 9, September 1990, at 12), holding that state law governs the right of a surrogate to order the discontinuation of medical treatment for an incompetent patient, it is likely to remain true for the foreseeable future that differing state laws on the subject of advance directives will create confusion for some patients, particularly those unaware of the laws of their state, those living near the border between two states, and those traveling between states for medical treatment. For such patients, the provisions of OBRA 1990 may help to ensure that state laws governing advance health care decisions are explained at the time of treatment.     

Medical: advance health care planning. Final rule

This document amends VA medical regulations to codify VA policy regarding advance health care planning. The final rule sets forth a mechanism for the use of written advance directives, i.e., a VA living will, a VA durable power of attorney for health care, and a State-authorized advance directive. The final rule also sets forth a mechanism for honoring verbal or non-verbal instructions from a patient when the patient is admitted to care when critically ill and loss of capacity may be imminent and the patient is not physically able to sign an advance directive form, or the appropriate form is not readily available. This is intended to help ensure that VA acts in compliance with patients' wishes concerning future health care.     

美国成年病人放弃治疗机制对于中国的启示

美国倡导清醒有自决能力的成年人用预先指示的方式表明自己在丧失自决能力时的医疗选择。预先指示主要分为生前遗嘱和持续性医疗授权书两种形式。美国联邦和各州有相对完善的法律制度,规定预先指示的形式内容及预先指示不存在时能为病人作出决定的人群和权限。医院也会有程序指南为医务工作者提供指导原则。中国可借鉴美国经验在转变大众对于死亡的观念、尊重病人自主权、出台相应法律法规、行业指南、增强医务工作者的沟通技巧和人文关怀等方面作出积极改变,完善放弃治疗的程序,满足病人要求,解决医务工作者的两难困境。     

Advance Refusals of Life-Sustaining Medical Treatment: The Relativity of an Absolute Right

English law gives the competent patient a right to refuse life-saving treatment, either contemporaneously or in an advance directive. This means that the patient's autonomous choice that in an anticipated situation his/her interests are better served by rejecting life-saving treatment needs to be respected. However, this right is undermined in practice by the courts' approach of applying a presumption in favour of preserving the patient's life whenever the validity and applicability of an advance directive is questioned. The article argues that the patient's right to refuse life-saving treatment only receives the respect it deserves if the decision whether or not a valid and applicable advance directive exists in a given case is instead be approached in an unbiased, disinterested way, and it analyses how this can be achieved in different scenarios.     

Medical: advance healthcare planning--VA. Proposed rule

This document proposes to amend the VA medical regulations to codify VA policy regarding advance healthcare planning. The proposed rule sets forth a mechanism for the use of written advance directives, i.e., a VA Living Will, a VA durable power of attorney for health care, and a state-authorized advance directive. The proposed rule also sets forth a mechanism for honoring verbal or nonverbal instructions from a patient when the patient is admitted to care when critically ill and loss of capacity may be imminent and the patient is not physically able to sign an advance directive form, or the appropriate form is not readily available. This is intended to help ensure that VA acts in compliance with patients' wishes concerning future healthcare.     

Medicaid program; freedom of choice waiver; conforming changes--HCFA. Interim final rule with comment period

This interim final rule amends existing Medicaid regulations on freedom of choice waivers granted under section 1915(b) of the Social Security Act (the Act) to conform them to the amendments made to the Act by sections 4604 and 4742 of the Omnibus Budget Reconciliation Act of 1990. This rule: Specifies that the Secretary may not waive the requirement that the State plan provide for adjustments in payment for inpatient hospital services furnished to infants under one year of age, or to children under 6 years of age who receive these services in disproportionate share hospitals. Extends to any provider participating under a section 1915(b)(4) waiver the same prompt payment standards that apply to all other health care practitioners furnishing Medicaid services. This rule also makes technical changes in the regulations relating to a recipient's free choice of providers of family planning services and cost-sharing requirements under waivers.     

Medicaid program; Medicaid managed care--HCFA. Proposed rule

This proposed rule would amend the Medicaid regulations to allow the States greater flexibility by giving them the option to require Medicaid recipients to enroll in managed care entities without obtaining waivers. These revisions, which are authorized by the Balanced Budget Act of 1997, would establish new beneficiary protections in areas such as quality assurance, grievance rights, and coverage of emergency services. They would eliminate certain requirements viewed by State agencies as impediments to the growth of managed care programs, such as the enrollment composition requirement, the right to disenroll without cause at any time, and the prohibition against enrollee cost-sharing. They would also permit State agencies to amend their State plans to require enrollment in managed care organizations subject to certain conditions, including limits on whose enrollment can be mandated, and a requirement for beneficiary choice. In addition, this rule would extend most of these new requirements to prepaid health plans.     

Medicaid program; Medicaid managed care. Health Care Financing Administration (HCFA), HHS. Final rule with comment period

This final rule with comment period amends the Medicaid regulations to implement provisions of the Balanced Budget Act of 1997 (BBA) that allow the States greater flexibility by permitting them to amend their State plan to require certain categories of Medicaid beneficiaries to enroll in managed care entities without obtaining waivers if beneficiary choice is provided; establish new beneficiary protections in areas such as quality assurance, grievance rights, and coverage of emergency services; eliminate certain requirements viewed by State agencies as impediments to the growth of managed care programs, such as the enrollment composition requirement, the right to disenroll without cause at any time, and the prohibition against enrollee cost-sharing. In addition, this final rule expands on regulatory beneficiary protections provided to enrollees of prepaid health plans (PHPs) by requiring that PHPs comply with specified BBA requirements that would not otherwise apply to PHPs.     

Real Interrogation: What Actually Happens When Cops Question Kids

Although the Supreme Court repeatedly cautioned that youthfulness adversely affects juveniles' ability to exercise Miranda rights or make voluntary statements, it endorsed the adult waiver standard—knowing, intelligent, and voluntary—to gauge juveniles' Miranda waivers. By contrast, developmental psychologists question whether young people understand or possess the competence necessary to exercise Miranda rights. This article analyzes quantitative and qualitative data of interrogations of three hundred and seven (307) sixteen‐ and seventeen‐year old youths charged with felony offenses. It reports how police secure Miranda waivers, the tactics they use to elicit information, and the evidence youths provide. The findings bear on three policy issues—procedural safeguards for youths, time limits for interrogations, and mandatory recording of interrogations.     

Clinical Trials of Xenotransplantation: Waiver of the Right to Withdraw from a Clinical Trial Should Be Required

Xenotransplantation pits clinical research ethics against public health needs because recipients must undergo long-term, perhaps life-long, surveillance for infectious diseases. This surveillance requirement is effectively an abrogation of the right to withdraw from a clinical trial. Ulysses contracts, which are advance directives for future care, may be an ethical mechanism by which to balance public health needs against limitation of individual rights.     

Medicaid program; Medicaid managed care: new provisions. Final rule

This final rule amends the Medicaid regulations to implement provisions of the Balanced Budget Act of 1997 (BBA) that allow the States greater flexibility by permitting them to amend their State plan to require certain categories of Medicaid beneficiaries to enroll in managed care entities without obtaining waivers if beneficiary choice is provided; establish new beneficiary protections in areas such as quality assurance, grievance rights, and coverage of emergency services; and eliminate certain requirements viewed by State agencies as impediments to the growth of managed care programs, such as, the enrollment composition requirement, the right to disenroll without cause at any time, and the prohibition against enrollee cost-sharing.     

Video Advance Directives: A Turning Point for Advance Decision-Making? A Consideration of Their Roles and Implications for Law and Practice

Questions regarding making and implementing care preferences through advance directives have become increasingly significant as the greying population grows with rising numbers of people experiencing incapacity. Currently, there is no consensus in the format for making advance directives. Recent developments highlighted the use of recording technology as an option to counter the challenges of written forms. Services offering video and audio recording available for online and offline storage are emerging in the United States. These services presumably strengthen a person’s expression of care preferences for healthcare providers in making treatment decisions compared to written advance directives. This article examines the role video advance directives play in advance decision-making and their legal and practical implications to the existing framework. An appreciation of the legal challenges presented by this development facilitates an understanding of their use in contemporary advance directives and enables appropriate recommendations for implementing safeguards in their use.

     

Roe v. Wade and the history of abortion regulation

In "Roe," the Supreme Court found that the privacy right in the 14th amendment's view of "personal liberty" encompasses a woman's right to choose an abortion. The Court found that "abortion is a fundamental right." These conclusions are mistaken. The Court's analysis of "the history of abortion regulation" had a lot of errors and did not consider the state of technology in which abortion evolved. Sir Edward Coke, a 16th and 17th century jurist, said that abortion was a "great misprison." Quickening, the point at which a woman feels life, was used to determine fetal viability. State courts, therefore, viewed "abortion after quickening as common law crime." By the end of 1868, 30 to the then 37 states had passed laws restricting abortion. The Supreme Court said that the 19th century laws were passed to guard the mother's health "against the dangers of unsafe operation." In the 15 months before "Roe," 5 state courts said that their abortion laws were constitutional. They said that this was "intended to protect the lives of unborn children." Therefore, the Court's belief that "the state courts focused on the State's interest in protecting "the health of the mother" was unexplainable. The Court said that in many states the woman couldn't "be prosecuted for self-abortion." 17 states did "incriminate the woman's participation in her own abortion," but the Court did not note this. The Court's premise about the greater hazards of late abortions is mistaken. The states were concerned, in the late 19th century, about whether the attempted abortion caused the death of a child. The "right to an abortion" can only be seen as "fundamental" if it is "implicit" in the "ordered liberty" concept or "deeply rooted" in US tradition and history. "Roe" struck down the abortion laws of all 50 states and should be overturned.     

论自然灾害下健康权的法律保障

自然灾害给健康权的可提供性、可获取性、可接受性以及质量保障方面带来了风险。健康需要与权利的密切关系以及国家的契约义务决定了国家必须化解灾民的健康权风险。国际人权条约和大量软法性国际法律文件为自然灾害下国家保障健康权提供了国际标准,中国自然灾害立法基本符合健康权保障的国际标准,但是仍有一定差距。为更好保障灾民的健康权,中国应该将人权保障原则作为灾害立法的基本原则,增加反歧视和照顾弱者的规定,明确宣示灾民的健康权,并制定《灾害救助基本法》。