2015 -- S 0481 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

____________

A N   A C T

RELATING TO HEALTH AND SAFETY - CAREGIVER ADVISE, RECORD AND ENABLE

ACT

     Introduced By: Senators Goldin, and Satchell

     Date Introduced: February 26, 2015

     Referred To: Senate Health & Human Services

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

CHAPTER 17.27

CAREGIVER ADVISE, RECORD AND ENABLE ACT

     23-17.27-1. Legislative findings and purpose. – An estimated 148,000 Rhode Islanders

provide varying degrees of unreimbursed care to adults with limitations in daily activities.

According to the AARP Public Policy Institute, the total value of the unpaid care provided to

individuals in need of long-term services and supports amounts to an estimated $1.9 billion every

year, based on 2009 data. Caregivers are often members of the individual's immediate family, but

friends and other community members also serve as caregivers. While most caregivers are asked

to assist an individual with basic activities of daily living, such as mobility, eating, and dressing,

many are expected to perform complex tasks on a daily basis such as administering multiple

medications, providing wound care, and operating medical equipment.

     Despite the vast importance of caregivers in the individual's day-to-day care, and despite

the fact that according to AARP’s 2012 "Home Alone" report, seventy-eight percent (78%)

percent of caregivers report managing multiple medications, administering injections, and

performing other health maintenance tasks, the “Home Alone” research has shown that many

caregivers find that they are often left out of discussions involving a patient's care while in the

hospital and, upon the patient's discharge, receive little to no instruction on the tasks they are

expected to perform. The federal Centers for Medicare & Medicaid Services (CMS) estimates

that $17 billion in Medicare funds or spent each year on unnecessary hospital readmissions.

Additionally, hospitals desire to avoid the imposition of new readmission penalties under the

federal Patient Protection and Affordable Care Act (ACA).

     In order to successfully address the challenges of a surging population of older adults and

others living with chronic conditions and who have significant needs for long-term services and

supports, the purpose of the state must be to develop methods to enable caregivers to continue to

support their loved ones at home and in the community, and avoid costly hospital readmissions.

Therefore, it is the intent that this chapter enables caregivers to provide competent post-hospital

care to their family and other loved ones, at minimal cost to the taxpayers of this state.

     23-17.27-2. Definitions. – As used in this chapter:

     (1) "After-care" means any assistance provided by a caregiver to a patient under this

chapter after the patient's discharge from a hospital that is related to the patient’s condition at the

time of discharge. Such assistance may include, but is not limited to, assisting with basic

activities of daily living (ADLs), instrumental activities of daily living (IADLs), or other tasks as

determined to be appropriate by the discharging physician or other health care professional.

      (2) "Caregiver" means any individual duly designated as a caregiver by a patient under

this chapter who provides after-care assistance to a patient living in his or her residence. A

designated caregiver may include, but is not limited to, a relative, partner, friend, or neighbor who

has a significant relationship with the patient.

     (3) "Discharge" means a patient's exit or release from a hospital to the patient's residence

following an inpatient admission.

     (4) "Entry" means a patient's admission into a hospital for the purposes of medical care.

     (5) "Hospital" means a facility licensed under Rhode Island statute.

     (6) "Residence" means a dwelling that the patient considers to be his or her home. A

"residence" for the purposes of this chapter shall not include any rehabilitation facility, hospital,

nursing home, assisted living facility, or group home licensed by Rhode Island.

     23-17.27-3. Caregiver designation. – (a) Any hospital licensed pursuant to this title

shall provide each patient or, if applicable, the patient's legal guardian with an opportunity to

designate at least one caregiver under this chapter following the patient's entry into a hospital and

prior to the patient's discharge.

     (1) In the event that the patient is unconscious or otherwise incapacitated upon his or her

entry into a hospital, the hospital shall provide such patient or his/her legal guardian with an

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opportunity to designate a caregiver within a given timeframe, at the discretion of the attending

physician, following the patient’s recovery of consciousness of capacity. The hospital shall

promptly document the attempt in the patient’s medical record.

      (2) In the event that the patient or the patient’s legal guardian declines to designate a

caregiver under this chapter, the hospital shall promptly document this in the patient’s medical

record.

     (3) In the event that the patient or the patient’s legal guardian designates an individual as

a caregiver under this chapter:

     (i) The hospital shall promptly request the written consent of the patient or the patient’s

legal guardian to release medical information to the patient’s designated caregiver following the

hospital’s established procedures for releasing personal health information and in compliance

with all federal and state laws.

     (A) If the patient or the patient’s legal guardian declines to consent to release medical

information to the patient’s designated caregiver the hospital is not required to provide notice to

the caregiver under § 23-17.27-4 or provide information contained in the patient’s discharge plan

under § 23-17.27-5.

     (ii) The hospital shall record the patient’s designation of the caregiver, the relationship of

the designated caregiver to the patient, and the name, telephone number, and the address of the

patient’s designated caregiver in the patient’s medical record.

     (4) A patient or the patient's legal guardian may elect to change the patient's designated

caregiver at any time, and the hospital must record this change in the patient’s medical record

before the patient's discharge.

     (b) A designation of a caregiver by a patient or patient’s legal guardian under this section

does not obligate any individual to perform any after-care tasks for any patient.

     (c) This section shall not be construed to require a patient or a patient’s legal guardian to

designate any individual as a caregiver as defined by this chapter.

     (d) In the event that the patient is a minor child, and the parents of the patient are

divorced, the custodial parent shall have the authority to designate a caregiver. If the parents have

joint custody of the patient, they shall jointly designate the caregiver.

     23-17.27-4. Notice to Designated Caregiver. – (a) Any hospital licensed pursuant to this

title shall notify the patient’s designated caregiver of the patient’s discharge or transfer to another

facility licensed by the state as soon as possible, in any event, upon issuance of a discharge order

by the patient’s attending physician. In the event the hospital is unable to contact the designated

caregiver, the lack of contact shall not interfere with, delay, or otherwise affect the medical care

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provided to the patient, or an appropriate discharge of the patient. The hospital shall promptly

document the attempt in the patient’s medical record.

     23-17.27-5. Instruction to Designated Caregiver. – (a) As soon as possible and prior to

a patient’s discharge from a hospital, the hospital shall consult with the designated caregiver

along with the patient regarding the caregiver’s capabilities and limitations and issue a discharge

plan that describes a patient’s after-care needs at his or her residence.

     The consultation and issuance of a discharge plan shall occur on a schedule that takes

into consideration the severity of the patient’s condition, the setting in which care is to be

delivered, and the urgency of the need for caregiver services. In the event the hospital is unable to

contact the designated caregiver, the lack of contact shall not interfere with, delay, or otherwise

affect the medical care provided to the patient, or an appropriate discharge of the patient. The

hospital shall promptly document the attempt in the patient’s medical record.

     (1) At minimum, a discharge plan shall include:

     (i) The name and contact information of the caregiver designated under this chapter;

     (ii) A description of all after-care tasks necessary to maintain the patient’s ability to

reside home, taking into account the capabilities and limitations of the caregiver;

     (iii) Contact information for any health care, community resources, and long-term

services and support necessary to successfully carry out the patient’s discharge plan.

     (b) The hospital issuing the discharge plan must provide caregivers with instruction in all

after-care tasks described in the discharge plan. Any training or instructions provided to a

caregiver shall be provided, to the extent possible, in non-technical language and in the

caregiver’s native language.

     (1) At minimum, such instruction shall include:

     (i) A live demonstration of the tasks performed by the hospital employee or individual

with whom the hospital has a contractual relationship authorized to perform the after-care task,

provided in a culturally competent manner and in accordance with the hospital’s requirements to

provide language access under state and federal law;

     (ii) An opportunity for the caregiver and patient to ask questions about the after-care

tasks; and

     (iii) Answers to the caregiver’s and the patient’s questions provided in a culturally

competent manner and in accordance with the hospital’s requirements to provide language access

services under state and federal law.

     (2) Any instruction required under this chapter shall be documented in the patient’s

medical record, including, at minimum, the date, time, and contents of the instruction.

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     (c) The Rhode Island department of health is authorized to promulgate regulations to

implement the provisions of this chapter including, but not limited to, regulations to further define

the content and scope of any instruction provided to caregivers under this chapter.

     23-17.27-6. Non-Interference with Powers of Existing Health Care Directives. –

Nothing in this chapter shall be construed to interfere with the rights of an agent operating under

a valid health care directive pursuant to chapter 4.10 of title 23 (Health Care Power of Attorney).

     23-17.27-7. Caregiver reimbursement. – A caregiver shall not be reimbursed by any

government or commercial payer for after-care assistance that is provided pursuant to this

chapter, with the sole exception that this chapter shall not supersede the applicability of wage

replacement benefits paid to workers under Rhode Island’s Temporary Disability Insurance

program, pursuant to § 28-41-35.

     23-17.27-8. Limitations of Actions. – Nothing in this chapter shall be construed to create

a private right of action against a hospital, a hospital employee, or an individual, with whom a

hospital has a contractual relationship, or to otherwise supersede or replace existing rights or

remedies under any other provision of law.

     23-17.27-9. Severability. – If any provision of this chapter or the application of any

provision to any person or circumstances is held invalid or unconstitutional, the invalidity or

unconstitutionality shall not affect other provisions or applications of this chapter which can be

given effect without the invalid or unconstitutional provision or application, and to this end the

provisions of this chapter are declared to be severable.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY - CAREGIVER ADVISE, RECORD AND ENABLE

ACT

***

     This act would create the "Caregiver Advise, Record and Enable Act" to provide support

and assistance to individuals with post hospital care, and to provide caregivers with proper

training.

     This act would take effect upon passage.

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