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:

1. The Legislature finds and declares that:

a. 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 billion 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, 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.

d. The federal Centers for Medicare and Medicaid Services (CMS) estimates that $17 billion 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, and 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. 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.

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, including, but not limited to: assisting with basic activities of daily living; instrumental activities of daily living; and carrying out medical or nursing tasks, such as managing wound care, assisting with administering medications, and operating medical equipment.

"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, 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, treatment, or observation.

"Entry" means a patient's entrance into a hospital for the purposes of receiving medical care, treatment, or observation. A patient need not be formally admitted to a hospital for the provisions of this act to apply.

"Hospital" means a 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.

3. a. A hospital shall provide each patient or, if applicable, the patient's legal guardian, with at least one opportunity to designate at least one caregiver pursuant to this act no later than 24 hours following the patient's entry into the hospital and prior to the patient's discharge or transfer to another facility.

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 24 hours following the patient's recovery of consciousness or capacity.

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.

(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. , c. (C. ) (pending before the Legislature as this bill) or provide information contained in the patient's discharge plan under section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(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 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 within 24 hours.

f. 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.

g. This section shall not be construed to require a patient or a patient's legal guardian to designate any individual as a caregiver.

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 not later than four hours prior to the patient's actual discharge or transfer.

5. a. As soon as possible and not later than 24 hours prior to a patient's discharge from a hospital, the hospital shall consult with the designated caregiver regarding the caregiver's capabilities and limitations and issue a discharge plan that describes a patient's after-care assistance needs at the patient's residence. At a minimum, the 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, taking into account the capabilities and limitations of the caregiver; 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.

b. The hospital issuing the discharge plan must provide caregivers with instructions in all after-care assistance tasks described in the discharge plan. At a minimum, this instruction shall include:

(1) A live demonstration of the tasks performed by a hospital employee authorized to perform the after-care assistance task, 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) 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.

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.), or the "Physician Orders for Life-Sustaining Treatment Act," P.L.2011, c.145 (C.26:2H-129 et al.).

b. Any advance directive claimed to be in conflict with this act must be in existence prior to the patient's entry into the hospital.

c. A patient may designate a caregiver in an advance directive.

7. Nothing in this act shall be construed to create a private right of action against a hospital or a hospital employee, or to otherwise supersede or replace existing rights or remedies under any other provision of law.

8. 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.

9. This act shall take effect immediately.

STATEMENT

This bill would require hospitals to provide patients and their legal guardians with the opportunity to designate a caregiver within 24 hours following the patient's entry into the hospital. A caregiver is someone, such as a relative, 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 carrying out medical or nursing tasks, such as managing wound care, assisting with administering medications, and operating medical equipment.

The hospital would be required to note in the patient's medical record the details of any designation made, including the caregiver's name, address, telephone number, and relationship to the patient, and would also 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 24 hours following recovery of consciousness or capacity.

A hospital would be required to notify the caregiver of the patient's discharge or transfer to another facility as soon as possible and not later than four hours prior to the patient's actual discharge or transfer. At least 24 hours prior to a patient's discharge from a hospital, the hospital would be required to consult with the designated caregiver regarding the caregiver's capabilities and limitations and issue a discharge plan that describes a patient's after-care assistance needs that includes a description of all after-care assistance tasks necessary to maintain the patient's ability to reside at home, and contact information for any health care, community resources, and long-term services and supports necessary to successfully carry out the patient's discharge plan. The hospital would also be required to provide the caregiver with instructions in all after-care assistance tasks described in the discharge plan, including a live demonstration of the tasks performed by an authorized hospital employee, an opportunity for the caregiver to ask questions about the tasks, and answers to those questions.

The hospital would be required to document any information concerning the designation of a caregiver in the patient's medical file, including any after-care assistance instructions provided to the caregiver, any change made by the patient in the caregiver designation, a patient's refusal to give written consent to the release of medical information, and the patient's decision not to designate a caregiver.

Nothing in the bill would 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.), or the "Physician Orders for Life-Sustaining Treatment Act," P.L.2011, c.145 (C.26:2H-129 et al.). Any advance directive claimed to be in conflict with this bill would be required to be in existence prior to the patient's entry into the hospital. Additionally, a patient would be permitted to designate a caregiver in an advance directive.

Nothing in the bill would be construed to create a private right of action against a hospital or a hospital employee, or to otherwise supersede or replace existing rights or remedies under any other provision of law.