Legislation Creates New Requirements for Hospitals Regarding Caregivers for Patients

Last Updated: Jun 6, 2016

By Michael D.I. Siget, JD, MPA, PAMED's Legislative & Regulatory Counsel

Mike-SigetOn April 20, 2016, Gov. Tom Wolf signed into law Act 20, entitled, the "Caregiver Advise, Record and Enable (CARE) Act." Upon its effective date in April 2017, hospitals will be required to provide certain information to designated lay caregivers regarding patient care upon discharge from a hospital.

This edition of the Capitol Blog will look into some of the major requirements of the CARE Act.

Caregiver Designation

The Care Act requires a hospital to provide to each patient (or as applicable, a patient's legal guardian) the opportunity to designate at least one lay caregiver following the patient's entry into a hospital and prior to the patient's discharge. As defined in Act 20, "lay caregiver" means "an individual with a significant relationship to a patient and who:

Is designated and accepts the role as a lay caregiver by the patient; and

Provides after-care assistance to the patient living in the patient's residence.

Act 20 does not mandate that a patient designate a lay caregiver. Rather, a patient has the ability to decline to designate a lay caregiver. If that should occur, the hospital is required to record this refusal in the patient's medical record.

Any lay caregiver will be required to provide to the hospital his or her name, address, and telephone number so that the hospital can maintain contact with the lay caregiver.

Privacy Concerns

If a patient designates a lay caregiver, a hospital is required to obtain the written consent of the patient to release medical information to the patient's designated lay caregiver following the hospital's established procedures for releasing personal health information in compliance with all federal and state laws, including HIPAA.

If the patient declines to release medical information to the designated lay caregiver, the hospital is not required to provide that information to the lay caregiver.

Duties of the Hospital

There are several requirements that hospitals must meet under Act 20. In turn, it is likely that physicians and other health care practitioners will be called upon to meet these requirements. 

These requirements include:

  1. A hospital must notify a patient's designated lay caregiver of any discharge order for the patient, the patient's actual discharge or the patient's discharge to another facility as soon as possible.
  2. A hospital must consult with the designated lay caregiver and issue a discharge plan that describes the patient's after-care assistance needs.

Contents of the Discharge Plan

Hospitals are required to develop a discharge plan for each patient and provide instructions for lay caregivers. The hospital issuing the discharge plan shall provide lay caregivers with instructions in all after-care tasks described in the discharge plan.

Training and instructions for lay caregivers may be conducted in person or through video technology at the discretion of the lay caregiver. Any training or instructions provided to a lay caregiver shall be provided in nontechnical language, to the extent possible.

At minimum, the instructions must include:

  1. A live or recorded demonstration of the tasks performed by an individual designated by the hospital, who is authorized to perform the after-care task, and is able to perform the demonstration in a culturally competent manner and in accordance with the hospital's requirements to provide language access services under federal and state law.
  2. An opportunity for the lay caregiver and patient to ask questions about the after-care assistance task.
  3. Answers to the lay caregiver's questions provided in a culturally competent manner and in accordance with the hospital's requirements to provide language access services under Federal and State law.

It is important to note that a patient may designate a lay caregiver in an advanced directive. In addition, this Act is not meant to interfere with the rights of an agent operating under a valid advanced directive.

While physicians are not specifically named in this bill, physicians are involved in discharge plans for patients.  Therefore, it is recommended that physicians discuss this law with hospital administrators, as they may be called upon to fulfill the requirements of this Act.

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