Advance directives are legal documents based on state laws. Psychiatric advance directives function in much the same way as physical health advance directives. Psychiatric advance directives are consistent with the principles of recovery, consumer choice and empowerment. They afford individuals the opportunity to specify their preferences concerning treatment and services in the event that they are incapacitated. The majority of states have enacted advance directive statutes that specifically provide for psychiatric advance directives or sup-port their preparation under general purpose ad-vanced directive statutes.20 However, these statutes vary state-to-state.
Federal Medicaid law contains provisions regarding advance directives. The Social Security Act (§1902(a)(57) and §1902(a)(58)) requires that each state’s Medicaid plan provide for the distribution of a written description of state laws or policies concerning advance directives.21 Section 1902(w) of the Act spells out in more detail the requirements that states must follow to ensure that providers inform individuals of their rights under state law to execute an advance directive, and to ensure that providers comply with state statutory requirements. This provision specifically applies to hospitals and managed care organizations, as well as nursing facilities, hospice and home health providers. Medicaid law, then, contains an affirmative expectation that a state’s policies will require specified classes of Medicaid providers to conform their services to the treatment preferences of in-dividuals who have executed advance directives.
More broadly, state laws concerning advance directives (including psychiatric advance directives) are as binding on Medicaid providers (including those not specified in federal law) as any other health care providers. In this arena, state law takes precedence. Consequently, when specified in state law, the provisions of an advance directive apply to community providers as well as hospitals. Some states have incorporated provisions into their rehabilitative services rules that encourage staff to discuss advance directives with individuals. The topic of advance directives may be addressed during the development of an individual’s treatment plan, and individuals may be assisted in learning about advanced directives as a targeted case management activity.