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The 190th General Court of the Commonwealth of Massachusetts

AN ACT AUTHORIZING THE DISCLOSURE OF MEDICAL INFORMATION TO CERTAIN DESIGNATED CAREGIVERS.

     Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:
     SECTION 1. Chapter 111 of the General Laws is hereby amended by adding the following section:-
     Section 236.  (a) For the purposes of this section, the following words shall have the following meanings, unless the context clearly requires otherwise:
     “Aftercare”, assistance provided by a caregiver to a patient after the patient’s discharge from a hospital to the patient’s residence; provided, however, that “aftercare” shall include tasks that are limited to the patient’s condition at the time of discharge that will not be performed by a licensed health care provider, including basic medical tasks, such as assistance with oral medications and operating medical equipment.
     “Caregiver”, an individual, 18 years of age or older, who is duly designated as a caregiver by a patient pursuant to this section and is willing and physically able to provide aftercare to a patient in the patient’s residence. 
     “Discharge”, a patient’s exit or release from a hospital to the patient’s residence following an inpatient admission.
     “Entry”, a patient’s inpatient admission to a hospital to receive medical care.
     “Hospital”, the teaching hospital of the University of Massachusetts Medical School and a hospital licensed pursuant to section 51 that contains a majority of medical/surgical, pediatric, obstetric and maternity beds as defined by the department of public health.
     “Patient”, an individual, 18 years of age or older, who is admitted to a hospital as an inpatient.
     “Residence”, a dwelling that the patient considers to be the patient’s home at the time of discharge; provided, however, that “residence” shall not include a hospital, nursing home, skilled nursing facility, hospice or other facility that provides a post-acute level of care. 
     (b)  A hospital shall provide each patient who is competent and capable as determined by the treating health care provider or, if there is a court-appointed guardian of the patient, the guardian with an opportunity to designate a caregiver prior to the patient’s discharge or transfer in a time frame that is consistent with the discharge or transfer planning process within the hospital. 
     The designation, along with contact information for the caregiver, shall be documented in the patient’s medical record.  The designated caregiver shall be provided with access to the patient’s health information and discharge plan, when applicable, if the patient or the court-appointed guardian for the patient has authorized a release of such information in compliance with the Health Insurance Portability and Accountability Act of 1996 and the commonwealth’s privacy laws and regulations and in accordance with the hospital’s established procedures for obtaining the authorization.
     If a patient is unconscious or incapacitated upon entry into a hospital and does not have a court-appointed guardian, the hospital shall provide the patient, upon recovery of consciousness and capacity, with the opportunity to designate a caregiver.  The designated caregiver may be changed by a court-appointed guardian, if any, or by the patient at any time if the patient is competent and capable, as determined by the treating health care provider and the change is provided to the appropriate hospital personnel prior to the patient’s discharge or transfer.
     A patient or the patient’s court-appointed guardian shall not be required to designate a caregiver and nothing in this section shall require a person so designated to perform any aftercare tasks for a patient.
     (c)  A hospital shall notify a patient’s designated caregiver of the patient’s discharge or transfer as soon as practicable upon issuance of a discharge or transfer order by the patient’s treating health care provider.  The hospital shall provide the designated caregiver with a copy of the patient’s discharge plan and discuss the patient’s aftercare needs; provided, however, that a hospital shall not provide such notification or release such information unless an authorization for the notification and release has been provided to the hospital; and provided further, that the hospital shall not provide the notification or release of information if otherwise directed by the patient or a court-appointed guardian for the patient.
     The discussion with a caregiver relative to after care shall occur in a manner agreed to by the caregiver and the hospital; provided, however, that such discussion shall take into consideration: (i) the severity of the patient’s condition; (ii) the setting in which aftercare is to be delivered; and (iii) the urgency of the need for caregiver services. 
The discussion of aftercare shall include: (i) a general demonstration of the known aftercare tasks with an opportunity for the caregiver and the patient to ask questions and receive answers about the aftercare tasks prior to discharge; (ii) information about available community resources and long-term care support services near the patient’s residence that may be used to support the discharge plan, as appropriate; and (iii) the hospital contact information to address follow-up questions about aftercare tasks following the  patient’s discharge from that hospital.
     (d)  Nothing in this section shall interfere with the rights of an agent operating pursuant to a valid health care proxy or a court-appointed guardian.
     (e)  This section shall not create a private right of action against a health care provider as defined in section 1, or a contractor to a health care provider or mandate a new scope of practice or licensure requirement for a health care provider for any actions or conversations that may occur pursuant to this section. The health care provider shall not be required to determine the ability of a caregiver to understand or perform any of the aftercare tasks described in this section.
     (f)  This section shall not interfere with or delay the discharge, transfer or medical care provided to a patient if the hospital is not able to contact or provide notice or information to a designated caregiver prior to the discharge, transfer, or receipt of medical care.
     SECTION 2.  The commissioner of public health, after consultation with The Massachusetts Hospital Association, Inc. and AARP Massachusetts, shall issue guidance to hospitals to implement section 1 including, but not limited to: (i) specifying legally-authorized individuals who may designate a caregiver for the patient; (ii) defining the content and scope of any information provided to caregivers; (iii) the manner in which a patient may authorize the release of a discharge plan and health information to a caregiver; (iv) the manner in which a patient may change a designated caregiver; and (v) the manner in which a hospital shall document the hospital’s discussions with a patient or caregiver.
     SECTION 3.  Section 1 shall take effect upon the issuance of the guidance to hospitals as required by section 2 or 8 months after the effective date of section 2, whichever occurs first.

Approved, December 8, 2016