CPR: Live or let die?

It’s 6:45 a.m., and you are almost finished with your shift at the nursing home. As you enter a resident’s room, you notice that the resident’s skin seems ashen and mottled. You quickly realize the resident is not breathing and has no pulse. What do you do?

The hypothetical scenario above plays out in virtually every nursing home with variations on the theme. Life and death hang in the balance. Decisions have to be made within seconds, and a wrong decision regarding cardiopulmonary resuscitation (CPR) may have dire consequences.

Unfortunately, there is no shortage of cases in which a skilled nursing facility (SNF) was held responsible for failing to perform CPR. Many SNFs also have been held responsible for performing CPR when it should not have been performed or for not performing CPR properly.

| Related: Long-Term Living articles related to CPR |

A good review of policy and procedures begins with the applicable regulations and current standards of care.

REGULATORY REQUIREMENTS

At the time of admission, residents must be notified of their rights, including the right of self-determination.¹ Along with other rights, residents have a right to formulate advance directives.² Few decisions are as important as the right to choose—or forgo—CPR. When a resident has expressed his or her preference regarding CPR, those preferences must be followed—except in very narrow circumstances, as described below. Further, the regulations require that the services provided “must meet professional standards of quality.”³

STANDARDS OF CARE

The gold standard for CPR is the 2010 American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care.⁴ The guidelines explain the proper technique for CPR as well as when CPR may be withheld or withdrawn.

For example, once CPR is initiated, it may only be withdrawn under one of the following circumstances:

1. The victim has a spontaneous return of circulation and breathing,
2. The victim has been pronounced dead by an individual with the authority to make that determination,
3. Another trained rescuer relieves the person performing CPR or
4. The rescuer is either in imminent danger or too exhausted to continue.

CPR may be withheld if:

1. The victim has a valid do not resuscitate (DNR) order or
2. Irreversible death has occurred as evidenced by signs such as rigor mortis or livor mortis.

LESSONS LEARNED

In an actual case that began in 2006, the Centers for Medicare & Medicaid Services (CMS) determined that CPR-related deficiencies existed at a SNF and imposed a civil money penalty (CMP).⁵ The SNF appealed and the case was assigned to an administrative law judge (ALJ). The issue was whether the facility staff performed CPR appropriately.

In this case, an 84-year-old resident had been seated near the nurse’s station when he suddenly developed an upper airway obstruction known as stridor. He did not have a DNR order or an advance directive indicating that he did not want CPR.⁶ (Note: The absence of a DNR order or advance directive requires that a resident receive CPR unless irreversible death has occurred.)

Two registered nurses were nearby and paged a respiratory therapist. All three clinicians moved the resident to his room. Within minutes, the resident stopped breathing and was placed in bed. The nurse’s notes and the testimony at the hearing stated that “two cycles of chest compressions were done,” an effort that normally takes less than one minute.

Following two cycles of chest compressions, the nurses and therapist ceased providing CPR. Nobody called 911. At the hearing, it was claimed that one of the facility’s nurses “pronounced the resident dead,” although no one could recall who made that pronouncement. It would not have mattered. No justification for terminating CPR existed.

The facility argued that its policy recognized the “professional judgment exception” whereby a nurse can terminate CPR if she or he believes doing so is appropriate. (No such exception exists in a case such as this.) The facility also asserted that the resident’s cardiopulmonary arrest was “expected” and, thus, the facility was relieved of its obligation to perform CPR. The administrator attempted to justify not calling 911 by claiming it takes 10 to 15 minutes for an ambulance to arrive, and when the emergency technicians arrive, they “complain about being called to pick up dead people.”⁷ Even if this were true, the ALJ correctly noted that the facility “should have continued CPR for the 10 to 15 minutes it would have taken for the emergency team to arrive.”

The administrator testified that 911 was not called because the resident “died so quickly.” The facility also asserted that CPR need not be given because the resident was dead. That circular argument fails to recognize the obvious: CPR is never administered to a living person, because the lack of a heartbeat and spontaneous respirations are requirements for CPR to be administered.

One of the nurses testified that as the resident was being wheeled into his room, she asked him if he wanted to go to the hospital and “he shook his head and said ‘no.’ ” On cross-examination, neither the other nurses nor the respiratory therapist would say they heard her ask that. No evidence exists that the exchange actually occurred. It would not have made a difference. As the ALJ stated, asking the resident whether he wanted to go to the hospital when he couldn’t breathe “was simply an inappropriate time to discuss” treatment options.

The county coroner and noted pathologist Cyril Wecht, MD, JD, who testified for the facility, said that the facility had acted within the standards of care. CMS’ witnesses, Steve Levinson, MD, CMD, and Margie Pierce, RRT, however, testified on the standards for CPR and that the facility had deviated from those standards.

The ALJ agreed with CMS’ legal arguments and accepted the American Heart Association’s guidelines as the standard of care. A further appeal affirmed the ALJ’s decision against the SNF.

The most important lesson learned from this unfortunate case is to adhere to the standards of care. Residents deserve no less.

RECOMMENDATIONS FOR CPR POLICY IN SNFs

So here are some recommendations for SNFs regarding the administration of CPR:

• Recognize, adopt and adhere to the standards of care for CPR (for instance, standards of the American Heart Association or the American Red Cross).
• Note that some aspects of the standards of care changed in 2010.⁸
• Ensure adherence to appropriate policies and procedures regarding advance directives, DNR status and CPR.
• Have all staff members certified in CPR (recertify as needed).
• Ensure that staff members clearly understand when it is permissible to withdraw CPR and under what circumstances CPR may be withheld.
• Ask residents and/or responsible parties at the time of admission whether an advance directive has been completed and, if so, place a copy in the resident’s chart.
• Document each resident’s DNR status in easily accessible locations, including the care plan.
• Ascertain whether your state permits nurses to determine “medical futility” for purposes of withholding CPR. If so, then document how nurses meet the criteria.
• Document all relevant information regarding whenever CPR is performed (or withheld) in a timely, accurate way.
• Educate staff members about medical and physician orders for life-sustaining treatment (MOLST and POLST), if applicable in your state.⁹
• Ensure that all staff recognize that every minute wasted before performing CPR significantly decreases the chances of successful resuscitation.
• Maintain copies of current standards of care, and make them accessible to all staff.
• Consider periodically conducting mock drills for CPR emergencies.
• Recognize that no Medicare-approved nursing facility is allowed to have a “no CPR” policy.¹⁰

NOTES

1. 42 C.F.R. § 483.10.

2. 42 C.F.R. § 489.102.

3. 42 C.F.R. § 483.20(k)(3)(i).

4. 2010 American Heart Association Guidelines for Cardiopulmonary Resuscitation and Emergency Cardiovascular Care. Available at: https://circ.ahajournals.org/content/122/18_suppl_3.toc. Accessed on June 16, 2014.

5. By way of full disclosure, the author notes that he represented CMS in the case described.

6. John J. Kane Regional Center–Glen Hazel v. CMS, CR1394 (2006), aff’d, DAB No. 2068 (2007).

7. This quote and those following come from the testimony delivered at the hearing. See note 6.

8. See note 4, above. For example, the AHA 2010 Guidelines changed the sequence from “ABC” (airway, breathing, chest compressions), to “CAB,” (chest compressions, airway, breathing).”

9. Each form for MOLST or POLST is state-specific, and clinicians should check the requirements in their jurisdiction.

10. It is forbidden for a Medicare-approved SNF to have a facility-wide no CPR policy. See, for instance, CMS Survey and Certification Memo, Cardiopulmonary Resuscitation (CPR) in Nursing Homes, S & C: 14-01-NH (October 18, 2013). Available at: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-01.pdf. Accessed on June 18, 2014.

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.