HSE LEGALcurrents

New Requirements for Hospital Discharge Plans and Instructions to Caregivers

On October 26, 2015, Governor Andrew Cuomo signed into law the Caregiver Advise, Record and Enable Act (the “CARE Act”). The CARE Act sets forth the hospital’s obligation to provide each patient the ability to identify individual caregivers who will be involved in the patient’s post-hospital care, and requires hospitals to develop the patient’s discharge plan in collaboration with the identified caregivers.

The CARE Act acknowledges that family members, friends and other community members often assist patients post-discharge with limitations in daily living, as well as more complex medical tasks (e.g., multiple medicine administration, wound care, and operation of medical equipment). However, 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 for the patient under the patient’s discharge plan in the patient’s residence. The CARE Act enables identified caregivers to be included in discharge planning so they can provide adequate post-hospital care, and in the process is intended to help patients avoid costly, unnecessary hospital readmissions.

Under the CARE Act, hospitals are required to:
  • Provide an opportunity for a patient, or patient’s legal guardian, to designate at least one caregiver whom the hospital must include in discharge planning and with whom the hospital must share post-discharge care (referred to as “after-care”) information or instruction;
  • Record the identified caregiver’s name, relationship to the patient, telephone number, and address in the patient’s medical record;
  • Record if the patient or legal guardian declines or refuses to identify caregivers;
  • Request the written consent of the patient, or the patient’s legal guardian, to release medical information to the identified caregiver in accordance with the requirements of HIPAA and state law. If the patient or the patient’s legal guardian declines to grant consent, the hospital is not obligated to share information in the discharge plan;
  • Notify the identified caregiver of the patient’s discharge or transfer as soon as the date/time of the discharge or transfer is anticipated;
  • Consult with the identified caregiver, along with the patient, in developing the discharge plan;
  • Share with the caregiver a description of all after-care tasks, taking into account the caregiver’s capabilities and limitations and issue a discharge plan describing the patient’s after-care needs at the patient’s residence;
  • Provide the caregiver with information on health care, community resources, and long-term services and supports necessary to successfully carry out the patient’s discharge plan;
  • Offer the identified caregiver instruction in and demonstration of all after-care tasks described in the discharge plan in a culturally competent manner, with an opportunity to have their questions answered; and
  • Document in the patient’s medical record the instructions given to the caregiver, including date, time and content of the instructions. New York is the 18th state to pass a version of the CARE Act. It will take effect on April 24, 2016.

If you would like our assistance, or if you have any questions about this LEGALcurrents®, please contact any member of our Health Care practice group at (585) 232-6500.

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