NJ Caregiver Advise, Record, Enable
(CARE) Act CHAPTER 68
As amended by the
committee, this law would require general acute care hospitals to provide
patients and their legal guardians with opportunities to designate a caregiver
following the patient’s entry into the hospital. A caregiver is someone,
such as a relative, spouse, partner, friend, or neighbor, who provides
after-care assistance to a patient in the patient’s residence. The types
of after-care assistance provided may include assisting with basic activities
of daily living, assisting with instrumental activities of daily living, and
other tasks as determined to be appropriate by the discharging physician or another
licensed health care professional.
The hospital would be
required to request written consent from the patient to release medical
information to the caregiver. If a patient declines to give written
consent, the hospital is not required to provide the caregiver with after-care
assistance instructions or notify the caregiver of the patient’s discharge or
transfer to another facility. A patient would be permitted to change
designated caregivers at any time. Being designated as a caregiver does
not obligate the person to provide any after-care assistance to the
patient. In the event that a patient is unconscious or otherwise
incapacitated upon entry into the hospital, the hospital would be required to
provide the patient with an opportunity to designate a caregiver within a given
timeframe, at the discretion of the attending physician, following recovery of
consciousness or capacity.
Except as otherwise
provided by the law (and reiterated in the statement, above) a hospital would
be required to notify the caregiver of the patient’s discharge or transfer to
another facility as soon as possible, and, in any event, upon issuance of a
discharge order by the patient’s attending physician. As soon as
possible, prior to a patient’s discharge from a hospital, the hospital would be
required to consult with the designated caregiver and issue a discharge plan
that describes a patient’s after-care assistance needs, if any. The
consultation would 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 for caregiver services. If the hospital is unable to contact
the caregiver, the lack of contact may not interfere with, delay, or otherwise
affect the medical care provided to the patient, or an appropriate discharge of
the patient.
The discharge plan is
to include the name and contact information of the designated caregiver, a
description of all after-care assistance tasks necessary to maintain the
patient’s ability to reside at home, and contact information for: (1) any
health care, community resources, and long-term services and supports necessary
to successfully carry out the patient’s discharge plan; and (2) a hospital
employee who can respond to questions. The hospital would also be
required to provide the caregiver with instructions, either in person or
through video technology, at the discretion of the caregiver, in all after-care
assistance tasks described in the discharge plan. At a minimum, such
instruction would be required to include a live or recorded demonstration of
the necessary assistance tasks, which is performed by an authorized hospital
employee, and an opportunity for the caregiver to ask questions about the
assistance tasks and receive answers to those questions.
The hospital would be
required to document any information concerning the designation of a caregiver
in the patient’s medical record, including: the caregiver’s name,
relationship to the patient, and contact information; any after-care assistance
instructions provided to the caregiver; any change made by the patient in the
caregiver designation; the patient’s decision not to designate a caregiver, if
applicable; or the hospital’s inability to contact the caregiver, if applicable.
The law stipulates that nothing therein may
be construed to interfere with the rights of an agent operating under a valid
advance directive pursuant to the provisions of the “New Jersey Advance
Directives for Health Care Act,” P.L.1991, c.201 (C.26:2H-53 et al.), the
"New Jersey Advance Directives for Mental Health Care Act," P.L.2005,
c.233 (C.26:2H-102 et al.), or the “Physician Orders for Life-Sustaining
Treatment Act,” P.L.2011, c.145 (C.26:2H-129 et al.). Additionally, a patient
would be permitted to designate a caregiver in an advance directive.
In addition, the law provides that nothing
therein may be construed to:
(1) create a private right of action against
a hospital, a hospital employee, or any consultant or contractor with whom a
hospital has a contractual relationship;
(2) obviate the obligation of an insurance
company, health service corporation, hospital service corporation, medical
service corporation, health maintenance organization, or any other entity
issuing health benefits plans to provide coverage required under a health
benefits plan; or to delay the discharge of a patient, or the transfer of a
patient from a hospital to another facility;
(3) impact, impede, or otherwise disrupt or
reduce the reimbursement obligations of an insurance company, health service
corporation, hospital service corporation, medical service corporation, health
maintenance organization, or any other entity issuing health benefits plans.
The law also provides
that a caregiver will not be eligible for reimbursement by any government or
commercial payer for after-care assistance provided pursuant to the law’s
provisions; and that a hospital, hospital employee, or any consultant or
contractor with whom the hospital has a contractual relationship may not be
held liable, in any way, for the services rendered or not rendered by a
caregiver to a patient at the patient’s residence.
AN ACT concerning designated
caregivers and supplementing Title 26 of the Revised Statutes.
BE IT ENACTED by
the Senate and General Assembly of the State of New Jersey:
C.26:2H-5.24 Findings, declarations relative to
designated caregivers.
1. The
Legislature finds and declares that:
a.
According to the American Association of Retired Professional’s Public Policy
Institute, at any given time, an estimated 1.75 million people in New Jersey
provide varying degrees of unreimbursed care to adults with limitations in
daily activities. The total value of the unpaid care to individuals in
need of long-term services and supports amounts to an estimated $13 Million per
year.
b.
Caregivers are often members of the individual’s immediate family, but friends
and other community members also serve as caregivers. Although 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.
c. Despite
the vast importance of caregivers in the individual’s day-to-day care, and
despite the fact that 78 percent of caregivers report managing multiple
medications, administering injections, and performing other health maintenance
tasks, research has shown that many caregivers feel that they do not have the
necessary skill set to perform the caregiving tasks they are asked to perform
when a loved one is discharged from the hospital.
d. The
federal Centers for Medicare & Medicaid Services (CMS) estimates that $17 million
in Medicare funds is 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,” Pub.L.111-148, as amended by the “Health Care and Education
Reconciliation Act of 2010,” Pub.L.111-152 (ACA).
e. In order
to successfully address the challenges of a surging population of older adults
and others who have significant needs for long-term services and supports, the
State must develop methods to enable caregivers to continue to support their
loved ones at home and in the community, and avoid costly hospital
readmissions.
f.
The New Jersey Hospital Association and hospitals in its Hospital Engagement
Network have utilized transitional caregiver models to reduce readmissions by
over 13 percent from January 2012 to December 2013, leading to 5,492 fewer
patients being readmitted during that time, at a cost savings of over $52
million.
g.
Therefore, it is the intent of the Legislature that this act enables caregivers
to provide competent post-hospital care to their family and other loved ones,
at minimal cost to the taxpayers of this State.
C.26:2H-5.25 Definitions relative to designated
caregivers.
2. As used
in this act:
“After-care assistance” means
any assistance provided by a caregiver to a patient following the patient’s
discharge from a hospital that is related to the patient’s condition at the
time of discharge, including, but not limited to: assisting with basic
activities of daily living; instrumental activities of daily living; and other tasks
as determined to be appropriate by the discharging physician or other health
care professional licensed pursuant to Title 45 or Title 52 of the Revised
Statutes.
“Caregiver” means any
individual designated as a caregiver by a patient pursuant to this act who
provides after-care assistance to a patient in the patient’s residence. The
term includes, but is not limited to, a relative, spouse, partner, friend, or
neighbor who has a significant relationship with the patient.
“Discharge” means a patient’s
exit or release from a hospital to the patient’s residence following any
medical care or treatment rendered to the patient following an inpatient
admission.
“Entry” means a patient’s
admission into a hospital for the purposes of receiving inpatient medical care.
“Hospital” means a general
acute care hospital licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.).
“Residence” means the
dwelling that the patient considers to be the patient’s home. The term
shall not include any rehabilitation facility, hospital, nursing home, assisted
living facility, or group home licensed by the Department of Health.
C.26:2H-5.26 Designation of caregiver.
3. a. A hospital shall
provide each patient or, if applicable, the patient’s legal guardian, with an
opportunity to designate at least one caregiver following the patient’s entry
into a hospital, and prior to the patient’s discharge to the patient’s
residence, in a timeframe that is consistent with the discharge planning
process provided by regulation. The hospital shall promptly document the
request in the patient’s medical record.
b. In the
event that the patient is unconscious or otherwise incapacitated upon entry
into the hospital, the hospital shall provide the patient or the patient’s
legal guardian with an opportunity to designate a caregiver within a given
timeframe, at the discretion of the attending physician, following the
patient’s recovery of consciousness or capacity. The hospital shall
promptly document the attempt in the patient’s medical record.
c. In the
event that the patient or legal guardian declines to designate a caregiver
pursuant to this act, the hospital shall promptly document this declination in
the patient’s medical record.
d. In the
event that the patient or the patient’s legal guardian designates an individual
as a caregiver under this act:
(1) 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 State and federal laws,
including the federal "Health Insurance Portability and Accountability Act
of 1996," Pub.L.104-191, and related regulations.
(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 section 4 of P.L.2014, c.68
(C.26:2H-5.27) or provide information contained in the patient’s discharge plan
under section 5 of P.L.2014, c.68 (C.26:2H-5.28).
(2) The hospital
shall record the patient’s designation of caregiver, the relationship of the
designated caregiver to the patient, and the name, telephone number, and
address of the patient’s designated caregiver in the patient’s medical record.
e. 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.
f.
This section shall not be construed to require a patient or a patient’s legal
guardian to designate any individual as a caregiver.
g. A
designation of a caregiver by a patient or a patient’s legal guardian does not
obligate the designated individual to perform any after-care assistance for the
patient.
h. 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.
C.26:2H-5.27 Notification to designated caregiver
of discharge, transfer.
4. A
hospital shall notify the patient’s designated caregiver of the patient’s
discharge or transfer to another facility as soon as possible and, 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 provided to the patient, or an appropriate discharge of
the patient. The hospital shall promptly document the attempt in the
patient’s medical record.
C.26:2H-5.28 Hospital to consult with designated
caregiver.
5. a. As soon as possible
prior to a patient’s discharge from a hospital to the patient’s residence, the
hospital shall consult with the designated caregiver and issue a discharge plan
that describes a patient’s after-care assistance needs, if any, at the
patient’s 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. At a
minimum, the discharge plan shall include:
(1) The name and
contact information of the caregiver designated under this act;
(2) A description
of all after-care assistance tasks necessary to maintain the patient’s ability
to reside at home; and
(3) Contact
information for any health care, community resources, and long-term services
and supports necessary to successfully carry out the patient’s discharge plan,
and contact information for a hospital employee who can respond to questions
about the discharge plan after the instruction provided pursuant to subsection
b. of this section.
b. The
hospital issuing the discharge plan must provide caregivers with instructions
in all after-care assistance tasks described in the discharge plan.
Training and instructions for caregivers may be conducted in person or through
video technology, at the discretion of the caregiver. Any training or
instructions provided to a caregiver shall be provided in non-technical
language, to the extent possible. At a minimum, this instruction shall
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 assistance 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 State and federal law;
(2) An
opportunity for the caregiver to ask questions about the after-care assistance
tasks; and
(3) Answers to
the caregiver’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.
c. Any
instruction required under this act shall be documented in the patient’s
medical record, including, at a minimum, the date, time, and contents of the
instruction.
C.26:2H-5.29 Construction of act relative to
advanced care directive.
6. a. Nothing in this
act shall be construed to interfere with the rights of an agent operating under
a valid advance directive pursuant to the provisions of the “New Jersey Advance
Directives for Health Care Act,” P.L.1991, c.201 (C.26:2H-53 et al.), the
"New Jersey Advance Directives for Mental Health Care Act," P.L.2005,
c.233 (C.26:2H-102 et al.), or the “Physician Orders for Life-Sustaining
Treatment Act,” P.L.2011, c.145 (C.26:2H-129 et al.).
b. A
patient may designate a caregiver in an advance directive.
C.26:2H-5.30 Construction of act relative to
private right of action against hospital.
7. a. Nothing in this act
shall be construed to create a private right of action against a hospital, a
hospital employee, or any consultants or contractors with whom a hospital has a
contractual relationship.
b. A
hospital, a hospital employee, or any consultants or contractors with whom a
hospital has a contractual relationship shall not be held liable, in any way,
for the services rendered or not rendered by the caregiver to the patient at
the patient’s residence.
c. Nothing
in this act shall be construed to obviate the obligation of an insurance
company, health service corporation, hospital service corporation, medical
service corporation, health maintenance organization, or any other entity
issuing health benefits plans to provide coverage required under a health
benefits plan.
d. (1) A caregiver
shall not be reimbursed by any government or commercial payer for after-care
assistance that is provided pursuant to this act.
(2) Nothing in
this act shall be construed to impact, impede, or otherwise disrupt or reduce
the reimbursement obligations of an insurance company, health service
corporation, hospital service corporation, medical service corporation, health
maintenance organization, or any other entity issuing health benefits plans.
C.26:2H-5.31 Discharge, transfer of patient
unaffected.
8. Nothing
in this act shall delay the discharge of a patient, or the transfer of a
patient from a hospital to another facility.
C.26:2H-5.32 Rules, regulations.
9. The
Department of Health, pursuant to the “Administrative Procedure Act,” P.L.1968,
c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the
purposes of this act including, but not limited to, regulations to further
define the content and scope of any instructions provided to caregivers.
10. This act shall take
effect on the 180th day following the date of enactment.
Approved November 13, 2014.
