Frequently Asked Questions

FAQ - August 2022
FAQ - April 2023

LONG-TERM CARE PATIENT REPRESENTATIVE PROGRAM
1. Is the Long-Term Care Patient Representative Program new?
  - Yes. It was established by Welfare and Institutions Code sections 9260 through 9295. The program is part of the California Department of Aging, and it will begin providing public patient representatives by January 27, 2023.
2. What will the Long-Term Care Patient Representative Program do?
  - The program will provide public patient representatives for residents of skilled nursing and intermediate care facilities who may need a medical intervention or treatment but lack capacity to provide informed consent, have no legal surrogate to do this on their behalf, and have no friend or relative who can represent them on an interdisciplinary team (IDT).
3. Will the Long-Term Care Patient Representative Program provide patient representatives for all IDTs convened pursuant to HSC 1418.8?
  - No. Prior to contacting the Patient Representative Program, the facility must attempt to identify a friend or relative who can serve as the resident’s patient representative on the IDT. The facility’s efforts to locate a friend or relative must be documented in the resident’s record.
  - If facility staff cannot identify a friend or relative to serve on the IDT within 72 hours of the physician notifying them that an IDT is needed, the staff must contact the Patient Representative Program to request that a public patient representative be assigned.
PUBLIC PATIENT REPRESENTATIVE
1. Will public patient representatives make health care decisions for residents?
  - Not directly. Pursuant to California Health and Safety Code (HSC) 1418.8, an IDT must be convened to review proposed medical interventions that require informed consent if a resident lacks capacity and has no legal surrogate.
  - If the IDT’s members reach consensus—meaning they all agree with the proposed intervention(s)—the facility can proceed with the intervention(s) after notifying the resident and allowing sufficient time for the resident to seek judicial review if the resident disagrees (see Question C.6).
2. Will public patient representatives provide other services for residents who have no family or legal surrogate?
  - No. Public patient representatives have a narrowly defined role. They will only represent residents on IDTs convened pursuant to HSC 1418.8.
  - They will not:
    - Participate in routine care plan meetings that fall outside the scope of HSC 1418.8.
    - Serve as surrogate decision makers for residents regarding financial, admission, or placement decisions.
    - Represent residents who have a friend or relative able to serve as the resident’s patient representative during an HSC 1418.8 IDT review.
    - Investigate elder or dependent adult abuse or neglect.
    - Participate in IDT reviews that would "directly and inexorably lead to death."
    - Provide legal representation for residents who wish to seek judicial review. In this case, the program will refer the resident to a local Legal Services program.
  - Provide services in settings that are not skilled nursing or intermediate care facilities licensed by the California Department of Public Health.
3. What will public patient representatives do once they are assigned to represent a resident during an HSC 1418.8 IDT review?
  - Confirm that all criteria are met for an IDT to convene.
  - Seek to determine the resident’s wishes by:
    - Meeting with and, if possible, interviewing the resident prior to an IDT meeting or quarterly review—or upon change of condition necessitating a change in the proposed intervention.
    - Consulting with family members and friends if any have been identified.
    - Reviewing any prior expressions of the resident’s health care wishes, including checking registries for advance health care directives and/or physician’s orders for life-sustaining treatment (POLST) forms.
  - Inform residents of their rights.
  - Review the resident’s medical and clinical records.
  - Participate in IDT review meetings and articulate whether the proposed intervention is either consistent with the resident’s preferences or a best approximation of those preferences, if known, or otherwise whether the proposed intervention appears consistent with the best interests of the resident.
  - Identify and report any concerns regarding abuse and neglect of the resident.
  - Refer a resident who seeks judicial review to appropriate legal services.
4. Are public patient representatives mandated reporters for elder abuse?
  - Yes. Public patient representatives are required to follow the mandated reporter process.
THE HSC 1418.8 IDT REVIEW
1. Is the requirement to convene an IDT new?
  - No. HSC 1418.8, which is also called the Epple Bill, has required skilled nursing and intermediate care facilities to use IDTs to make medical decisions for residents who lack capacity and have no legal surrogates since 1992.2
2. What has changed?
  - As the result of a court case called CANHR v. Smith (later called CANHR v. Angell), the following changes will take effect on January 27, 2023:
    - All IDTs convened pursuant to HSC 1418.8 must include a patient representative. As previously required, the IDT also must include the attending physician, a registered nurse responsible for the resident’s care, and any other appropriate staff. The IDT meeting may be held in person or remotely, but all required IDT members must be present.
    - Facilities must provide a number of notices related to IDT reviews (see Question D.1).
    - Facilities may not implement medical interventions authorized by an IDT prior to providing notice to the resident and the resident’s patient representative regarding the outcome of the IDT review. The notice must state that the resident has a right to judicial review, and the facility must allow sufficient time for the resident to seek judicial review prior to implementing a medical intervention.
    - If the resident chooses to seek judicial review, the facility may not implement any medical interventions authorized by the IDT prior to the court making a final determination—except in emergencies (see QuestionC.4).
3. What is the required timeline for convening an IDT under HSC 1418.8?
  - For non-emergency medical interventions, there is no required timeline for convening the IDT. However, the facility must provide both written and verbal notice to the resident and the resident’s patient representative at least five days prior to the IDT meeting.
4. How will medical emergencies be handled?
  - In the case of an emergency, after obtaining a physician’s order as necessary, a skilled nursing or intermediate care facility may administer a medical intervention that requires informed consent prior to the facility issuing the required notice or conducting an IDT review.
  - The emergency must be documented in the resident’s records.
  - Within 24 hours of the intervention, a notice explaining the medical intervention must be provided to the resident and to the resident’s patient representative. The notice must include the date, time, and location of the required post-intervention IDT review.
  - The facility must conduct an IDT review within one week of the emergency for an evaluation of the medical intervention.
  - The IDT must include a patient representative.
5. What is the facility’s role in the HSC 1418.8 IDT process?
  - The facility will:
    - Provide all required notices—both written and verbal.
    - Facilitate the public patient representative’s in-person or remote meeting with the resident.
    - Facilitate the resident’s participation in the IDT if the resident wishes to participate.
    - Make the resident’s medical and clinical records, as well as relevant facility policies and procedures, available to the public patient representative. In most cases, the facility will need to provide this information to the public patient representative electronically.
    - Convene the IDT meeting. This may be an in-person or remote meeting.
    - Submit aggregate quarterly data to the LTC Patient Representative Program for all IDT reviews convened pursuant to HSC 1418.8—including those where the resident is represented by a friend or relative rather than a public patient representative.
6. What happens if the IDT does not reach consensus?
  - If the IDT does not reach consensus and the facility wants to proceed with the intervention, the facility must petition to obtain a court order pursuant to section 3201 of the Probate Code to authorize the medical intervention.
REQUIRED NOTICES
1. What notices will facilities be required to provide beginning January 27, 2023?
  - An initial notice containing required information must be provided to the resident and the resident’s patient representative at least five days prior to the HSC1418.8 IDT meeting.
  - A follow-up notice must be provided to the resident and the resident’s patient representative after the IDT meeting has taken place.
  - An emergency intervention notice must be provided to the resident and the resident’s patient representative within 24 hours of an emergency intervention.
  - If the facility fails to conduct an IDT review within one week of an emergency medical intervention that falls under HSC 1418.8, the facility must notify the Patient Representative Program regarding the delay and its causes.
  - In cases where an emergency results in the application of a medical intervention to treat severe and sustained emotional distress or the application of physical or chemical restraints (involving residents who lack capacity and have no legal surrogate), the facility must notify the resident and the resident’s patient representative within 24 hours of the intervention. The facility also must notify the Patient Representative Program within 24 hours of the intervention—even if a friend or relative is available to serve as the patient representative and has been notified.
2. What information is required for each of these notices?
  - Fillable templates will be available for all required notices on the program’s website. Facilities have the option of using these templates or creating their own forms. However, all information included on the department’s templates must be provided either way.
3. Do the notices have to be provided in a resident’s primary language?
  - The written notices that facilities must provide to residents should be provided in the resident’s preferred or primary language, if possible. If translating a written notice is not possible, it may be provided in English.
  - Copies of all written notices must be provided to the resident’s patient representative (whether public or private) in English.
  - All notices that facilities provide to residents must be provided verbally as well as in writing. In the case of a verbal notice, the information must be provided in the resident’s primary or preferred language, if known.
  - Copies of all written notices, in English, must be entered into the resident’s record.
DATA REPORTING
1. What data are facilities required to submit to the program quarterly?
  - The total number of interdisciplinary reviews conducted.
  - The number of unique residents who have had an interdisciplinary team review conducted.
  - The total number of emergency medical interventions authorized pursuant to HSC section 1418.8(h).
  - The number of unique residents who have had an emergency medical intervention authorized.
  - A tabulation of the following:
    - medical interventions authorized by type.
    - the outcomes of the interdisciplinary team reviews.
    - instances when judicial review was sought.
    - emergency medical interventions where the interdisciplinary team failed to meet within the time required by HSC section 1418.8(h), including the causes of the delay and the number of days after the intervention that the interdisciplinary team finally met.
  - Any other demographic or statistical data as may be required by the program.
2. How will facilities submit the required data?
  - The Long-Term Care Patient Representative Program will provide reporting guidance on its website prior to the first quarterly reporting deadline in 2023.

Role of the Public Patient Representative (PPR)
1. Is the PPR permitted to sign a POLST on behalf of the resident?
  - No, the PPR cannot sign documents for a resident. This includes the POLST form. The interdisciplinary team (IDT) representative for the facility signs the POLST as the "legally recognized decisionmaker and indicates their relationship as "IDT representative". The physician signs in the area designated for the physician signature
2. Can the PPR assist the resident with fiduciary matters or sign admission or hospice paperwork?
  - No, the Office of the Long-Term Care Patient Representative (OLTCPR) and the PPR are not able to assist patients with any fiduciary matters such as Medi-Cal applications or provide financial assistance, nor can they sign paperwork to admit an individual to a facility or to hospice care.
3. Will the PPR help with locating family members?
  - No, the OLTCPR and the PPR are not able to help with locating family members, or finding additional family supports. Per Health & Safety Code (HSC) 1418.8, the facility is responsible for identifying or using due diligence to search for a legal decisionmaker. If a legal decisionmaker cannot be identified or located, the facility should take further steps to promptly identify, or use due diligence to search for, a patient representative to participate in the IDT.
4. Will this program replace the facility’s Bioethics Committee?
  - No, the OLTCPR is not an alternative to a facility’s bioethics committee and does not replace a bioethics committee. As of January 27, 2023, facilities are required to include a non-facility affiliated patient representative on the IDTs that are convened to make medical decisions requiring informed consent for incapacitated unrepresented residents. Bioethics committee meetings will continue to be appropriate for all other matters and situations that typically call for convening such a committee.
5. Will the PPR be available to people who are under age 65 and not able to make their own medical decisions?
  - Yes, a PPR will be available to represent any resident in a skilled nursing or intermediate care facility- who lacks the capacity to provide informed consent for their healthcare decisions, and does not have family, friends, or a legal surrogate, who can represent them at an IDT meeting.
Process for Requesting a Public Patient Representative
1. How do I request a PPR for a resident?
  - You must first register as a user in the California Patient Representative Information System (CAPRIS) and then submit your request for a PPR through this online portal. It can take up to 24 hours for your User Registration request to be processed. Each facility is allotted up to three users. User registration information and a link to the CAPRIS portal are located here: CAPRIS
  - Once you have opened a new request you will be directed to provide relevant information and upload specific documentation in CAPRIS pertaining to the case.
2. What is your turnaround time once you receive the initial request for a PPR?
  - PPRs make every effort to respond to requests within 1-2 business days whenever possible.
3. Will each facility and resident have an assigned PPR?
  - No, but generally each PPR is responsible for responding to the requests from facilities in their designated counties. Each long-term care facility will independently use CAPRIS to request a PPR each time an interdisciplinary team meeting is held for a resident of a facility who lacks the capacity to provide informed consent for their healthcare decisions and does not have family, friends, or a legal surrogate, who can represent them.
4. Is the OLTCPR open 7 days a week, 24 hours/day?
  - The OLTCPR staff can be reached during standard office hours, Monday through Friday, 8:00 – 5:00 p.m., either by phone: 916-800-5084, or email: OPR@aging.ca.gov.
5. If the emergency intervention happens on a weekend does the 24-hour notification begin at that time or will Monday be considered the 24-hour time frame?
  - If an emergency intervention happens on a weekend, the 24-hour notification period begins at the time the intervention was administered. Within 24 hours of administering the emergency intervention, the facility must provide the required oral and written Emergency Intervention Notice to the resident and the patient representative. The facility must submit a copy of the Emergency Intervention Notice to the OLTCPR, even if an alternative patient representative is available. The facility must conduct an IDT review within one week of administering the emergency intervention. (HSC 1418.8 (h).)
6. Does the PPR need to be present at regular quarterly care plan meetings?
  - No, a PPR does not participate in routine care plan meetings. PPRs are only required to participate when the facility’s IDT meets to review a new order requiring informed consent, there are changes in the resident’s condition requiring review of consent, or when the facility holds a follow-up IDT meeting to evaluate the use of the prescribed medical intervention.
7. Does every member of the IDT have to approve the physician order for treatment/medical intervention or just a majority of members?
  - Per HSC 1418.8, the IDT must reach a consensus (unanimous agreement/all members agree) prior to administering the proposed intervention.
Types of Interventions / Treatment and Situations Requiring a PPR
1. The law is specific to informed consent for antipsychotic medications. Does it also apply to other psychoactive medications such as antianxiety, antidepressants or other drugs used to control behavior?
  - HSC 1418.8 applies to all psychotropic medications and not just antipsychotics.
2. Does the administration of a vaccine/immunization require informed consent?
  - It is the position of the California Department of Public Health (CDPH) that vaccines/immunizations do not require informed consent. If a physician has determined that a vaccine, immunization, or booster is a routine order, an IDT is not required.
3. Should the LTCPRP office be involved in cases of residents with an appointed Public Conservator/Guardian?
  - No, if a resident has an appointed Public Conservator/Guardian, the OLTCPR would not be involved since the resident already has a legal representative. The facility is only required to reach out to the OLTCPR if the resident does not have a legal surrogate or decisionmaker, or family/friend to act on their behalf and all other criteria under HSC 1418.8 are met.
4. If a patient is alert and oriented x 3, but they do not have any family or friend support, do they need a representative?
  - No, if the resident has the capacity to give informed consent for their treatment, then a PPR is not necessary. A PPR is only required when all the following are met:
    - The facility received a physician’s order for a medical treatment/intervention requiring informed consent.
    - The physician has determined the patient lacks capacity to provide informed consent.
    - The patient has no legal surrogate or decisionmaker.
    - The patient has no available friend or family to participate in the IDT.
5. When an unrepresented resident is admitted to a SNF with active psychotropic medication orders, is a Patient Representative referral needed?
  - No, in such instances a PPR is not needed because informed consent was obtained by the hospital physician. As long as the resident's medical record contains documentation that informed consent has been obtained prior to the administration of psychotropic medications, then a patient representative referral is not needed.
Notices – Requirements
1. Can the SNF forgo the notice requirement to the resident if the resident is non-responsive?
  - No, failure to provide notice is what led the Court in California Advocates for Nursing Home Reform (CANHR), et al. v. Sonia Angell, to hold that the prior version of HSC 1418.8 violated the California Constitution. Section 1418.8(d)(1) states that notice of the IDT "shall" be given to both "the resident and the patient representative in accordance with subdivision (m)." Subsection (e)(1) further states that the IDT review cannot occur "without the participation of a patient representative and until the notice required by subdivision (d) has been provided to the resident and patient representative." Based on these two provisions, a resident’s lack of responsiveness would not permit a facility to forgo the notice requirements. Even if the patient is non-responsive, the facility still needs to provide notice.
2. Is the five-day noticing timeline recorded in the statute?
  - Yes, HSC 1418.8 outlines the timeline for the various noticing requirements. Reference 1418.8 (d-h) for more information.
3. Are facilities required to provide notices to representatives of all residents who lack capacity or just if the Public Patient Representative is involved?
  - The facility must follow the notification requirements for any resident who lacks the capacity to provide informed consent. Per HSC 1418.8 (m) the facility is required to provide notice to the resident and a copy of the notice in writing, and a second copy translated into English if applicable, shall be provided to the resident’s patient representative. If a patient representative has not been identified, or if the patient representative cannot be readily contacted, the notice shall be provided to the OLTCPR.
The Interdisciplinary Team (IDT)
1. Can a nurse practitioner or a physician’s assistant participate in the IDT in place of the physician?
  - No, although a nurse practitioner and/or a physician assistant may make the capacity determination and participate in the IDT process, the physician must be present at, and participate in the IDT. Per HSC 1418.8 (e), the "… interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning, and shall include the resident’s attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident’s needs, and a patient representative, in accordance with applicable federal and state requirements."