by Karl Steinberg, MD, CMD, HMDC

CALTCM members will be glad to know that the California Department of Public Health (CDPH) decided to proceed with the filing of an appeal in the CANHR v. Chapman case in late March, just squeaking in under the deadline.  This case, which deemed Health and Safety Code 1418.8 (Epple) unconstitutional—and the judge’s order prohibiting nursing homes from using the interdisciplinary team (IDT) process for medical decision-making (e.g., consenting to or refusing treatments) for unbefriended incapacitated nursing home residents, related to antipsychotics and the withdrawal or withholding of life-sustaining treatments—would have taken effect this week. 

Interestingly, the California Advocates for Nursing Home Reform (CANHR), who filed the initial lawsuite, also filed an appeal of the judgment, for reasons that are unclear considering that the judgment appeared to be favorable to their arguments. 

There was a wide call for the CDPH to appeal this decision, including a letter from CALTCM leadership that was sent on March 11, 2016 (click here to view letter).  Other organizations including the California Medical Association, the California Hospital Association, the California Association of Health Facilities, and the Coalition for Compassionate Care of California also sent letters to the CDPH making the request for similar reasons. 

For the time being, there is an indefinite stay of the decision.  In other words, nursing home IDTs may still utilize the Epple process as they have been.  It is probable that some additional requirements will be implemented for the use of this process—or an alternative process—to ensure appropriate decision-making for this vulnerable population in the future.  As of now, it’s not clear whether this will be through new legislation, enhanced regulatory language, or some variation of the decision that was already rendered when the appeals court hears the case.  CALTCM has advised its members to be very cautious in admitting residents who are incapacitated and unbefriended, since it will be almost impossible to meet their needs conscientiously, especially at the end of life.  For now, those residents who are already in the facilities can still have decisions made under Epple, and all such residents and their plans of care should be examined and optimized while the law still stands—for the benefit and in the best interests of our residents, which should be what drives all stakeholders in this important matter. 

CALTCM deeply appreciates the CDPH’s willingness to stand up to this ill-advised court decision and hopes that a satisfactory solution that does not throw the baby out with the bathwater can be devised.