Incompetent or incapacitated members

Members may be without a personal representative and may be assessed as incapacitated for purposes of understanding receipt of the NOMC.

Presumption of competence

If an individual has not been declared incompetent or assessed as incapacitated as defined below, then the individual is presumed to be competent. Exceptions can be made if he/she has demonstrated incompetence or incapacity to understand and evidence of those demonstrations are documented in the medical record.

Definitions

Incompetence: A legal determination made by a judge in which the court has determined that there is clear and convincing evidence that a person's ability to make decisions independently is impaired. An individual declared incompetent by the court is referred to as de jure incompetent.

• The medical record must contain evidence of a legal decision of incompetence.
• The medical record should show evidence of a legal representative.

Incapacity to understand: A decision based on an evaluation by a physician about the individual's lack of capacity to make reasoned medical decisions. An individual declared incapacitated is referred to as de facto incompetent. 

• The medical record must contain evidence as required under Michigan law of incapacity (i.e., records by two health care professionals, one of whom is a physician, attesting to the individual's incapacity to understand)
• Review case record for any proof of health care proxy documentation as Healthcare Durable Power of Attorney.

Documenting other evidence of lack of competence or understanding

In the absence of either proof of incapacity or incompetence as defined above, facility staff may still describe a member as not always understanding instructions. Additionally, members may have verified diagnoses of Alzheimer's or dementia. These may constitute "demonstration" of a member's inability to understand what the NOMNC is and means.

The case manager should assess the record for evidence of such "demonstrations" and seek clarification with the facility on understanding of the evidence that supports the member being described as "not understanding."

Brief Interview for Mental Status (BIMS)

In the medical record, a functional maintenance report such as the Brief Interview for Mental Status (BIMS) should state clear evidence of the member's lack of understanding, as follows:

If MDS item C0500, Summary Score = 0-7 (13-15 = Cognitively intact; 8-12 = Moderately impaired; 0-7 = Severe impairment)

AND MDS Item B0700, "Makes Self Understood” = 2 or 3 (0= Understood; 1=Usually understood; 2=Sometimes understood; 3=Rarely/never understood);

AND MDS Item 0800, "Ability to Understand Others" = 2 or 3 (0=Understands); 1=Usually understands; 2=Sometimes understands; 3=Rarely/never understands)

THEN member is considered not competent to receive a NOMNC.  

Other medical record evidence of incompetence or incapacity

To document incompetence or incapacity beyond the BIMS guidelines for functional maintenance reports, above, include:

Clear, concrete descriptions of incidents when the member didn't understand something and how the lack of understanding was demonstrated, if the functional maintenance report does not supply evidence

Documentation in support of a diagnosis of Alzheimer's Disease, dementia or other condition, such as certifying physician statement, other medical statements, etc. if the functional maintenance report or other medical documentation does not supply evidence