United States: Initiative To Improve Quality After Discharge: New Caregivers' Laws

This month Indiana,1 Illinois,2 California,3 Oregon,4 and New Hampshire5 join 11 other states with newly effective Care Advise Record Enable (CARE) laws6 requiring hospitals to give patients the opportunity to designate caregivers to assist them after leaving the hospital. These laws are in response to an initiative from the American Association of Retired Persons (AARP) to enable patients to have coordinated assistance with care after discharge.

The care post hospital discharge is often critical to improving the quality of patients' health. While in the hospital, a patient may not be in a condition where she or he can fully understand the requirements of care after going home and a patient may need assistance with this care. Moreover, hospitals may not know to whom they should provide discharge care instructions. AARP's CARE initiative may prevent unnecessary readmissions to the hospital and facilitate better healing by increasing compliance with discharge care instructions and improving the communication to those involved in caregiving after the hospital stay. As well patients may be more satisfied with their care at the hospital given the coordination of care. The state laws vary from the draft bill from AARP; however, generally the laws require hospitals to

  1. Offer patients the opportunity to designate a family member or friend as a caregiver to provide care after discharge;7
  2. Notify the caregiver of the patient's upcoming discharge or transfer;
  3. Provide the discharge plan to the caregiver; and
  4. Make an effort to provide the caregiver with aftercare instruction.

The patient may designate her or his legal representative or another person as the caregiver. However, the designated caregiver (who is not already the legal representative) does not become the legal representative automatically by being designated the caregiver. Accordingly, hospitals are still in the same critical position of identifying a legal representative upon admission to ensure there is someone to consent to care when the patient cannot.

If the patient declines to designate the caregiver, the hospital must document this. There is no requirement on the patient to designate a caregiver or for the caregiver to accept. By documenting its efforts to provide the opportunity to designate caregiver, the hospital fulfills the requirements of the CARE law if the patient declines.

In communicating with caregivers hospitals should follow their existing procedures concerning privacy and abide by Federal and State privacy laws. Accordingly, there must be consent to the release of protected health information to provide a caregiver discharge care instructions.

In providing the discharge instructions to the caregiver, some states specify what discharge instructions include such as information on medication8 and the format of instructions such as in person or by video,9 as applicable, with the opportunity to ask questions. By having video instructions, hospitals may better facilitate instructing caregivers for routine care in a convenient format.

Key aspects of compliance with CARE include:

  • If the hospital is unsuccessful in contacting the caregiver prior to discharge, the hospital is not required to delay discharge until it contacts the caregiver.
  • Hospitals still must comply with State and Federal laws pertaining to the privacy of patient health information.
  • Patients still need a legal representative to consent to care and advance directive laws still apply.
  • As family dynamics can be an issue with consent, it can also be an issue with the selection of a caregiver.
  • Hospital should ensure due care in documenting reasonable efforts to contact caregivers.
  • Providing video care instructions, as appropriate, may increase caregiver as well as hospital compliance.
  • Hospitals may wish to track the effect on readmission rates and patient satisfaction scores as they begin to implement the CARE laws.

Footnotes

1 http://indianacode.info/ic/title16/part91.htm

2 http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0222

3 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160ACR38

4 https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/HB3378/Enrolled

5 http://www.gencourt.state.nh.us/rsa/html/XI/151/151-43.htm

6 63 Okl.St.Ann. § 3113, A.C.A. § 20-77-2603, N.J.S.A. 26:2H-5.24, http://www.mainelegislature.org/legis/statutes/22/title22sec1711-G.pdf , http://www.leg.state.co.us/clics/clics2015a/csl.nsf/fsbillcont2/47497494C2223E8E87257DCC005B9CE4/$FILE/1242_enr.pdf , https://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB177_EN.pdf, https://www.cga.ct.gov/2015/act/pa/pdf/2015PA-00032-R00SB-00290-PA.pdf, http://www.legis.state.wv.us/bill_status/bills_history.cfm?INPUT=2100&year=2015&sessiontype=RS, http://webserver.rilin.state.ri.us/BillText/BillText15/SenateText15/S0481Aaa.pdf, http://assembly.state.ny.us/leg/?default_fld=&bn=A01323&Summary=Y&Actions=Y&Text=Y&Votes=Y, http://billstatus.ls.state.ms.us/documents/2015/html/SB/2100-2199/SB2108IN.htm

7 States may vary in specifying the time frame in which the hospital provides the patient the opportunity to designate a caregiver.

8 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160ACR38

9 http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0222

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