New Michigan Law Strives to Make Hospital Discharges Easier for Patients

Effective July 12, 2016, Michigan hospitals will have new discharge obligations imposed by the newly enacted Designated Caregiver Act (“Act”). Many hospitals already informally take actions described in the Act. However, the Act mandates the practices and provides certain protections for hospitals engaging in them.

Summary of New Mandates

The Act requires the following:

• Lay Caregiver Designation. As soon as possible after an inpatient admission, and before discharge of an inpatient to his or her residence, a hospital must give the patient (or guardian or Patient Advocate) the opportunity to designate a volunteer lay caregiver (such as a relative, spouse, partner, friend, or neighbor) to provide post-discharge services to the patient in the residence. The kinds of services contemplated by the Act are assistance with activities of daily living, and assistance with medical or nursing tasks including managing wound care, assisting in administering medications, or operating medical equipment. A patient is not obligated to designate a lay caregiver, and the designated caregiver is not obligated to agree to perform any of these tasks.
• Notice of Discharge. The hospital must notify the designated lay caregiver of the patient’s discharge or transfer to another facility as soon as practicable and, in any event, upon issuance of a discharge order. The hospital must document its efforts to notify the lay caregiver.
• Consultation with Caregiver. As soon as possible prior to the patient’s discharge, the hospital must attempt to consult with the lay caregiver to prepare the caregiver for the patient’s post-discharge needs. The consultation must include an opportunity for the lay caregiver to ask questions and receive answers about the patient’s post-discharge needs. If hospital staff conclude a live or recorded demonstration of care techniques is necessary to prepare the lay caregiver to perform post-discharge tasks, the hospital is authorized to provide it. It is unclear whether the hospital may rely upon equipment education provided by durable medical equipment companies as part of their obligation as Medicare/Medicaid suppliers.
• Discharge Plan. The hospital must issue a culturally and linguistically understandable discharge plan to the lay caregiver describing the patient’s post-discharge needs. The discharge plan may include contact information for health care, community resources, and long-term services and supports.  
• Documentation. If a lay caregiver is designated, the hospital must document the designation in the patient’s medical record, including the caregiver’s name, relationship, and contact information. If the patient changes the designation, the hospital must document the change in the patient’s medical record prior to discharge. The hospital must also document a refusal to make a designation. Finally, the hospital must document in the patient’s medical record the date, time, and contents of all instruction given to the lay caregiver.
• Ability to Proceed. The hospital may proceed with the patient’s discharge even if it is unable to reach the lay caregiver to provide notice of impending discharge, or unable to provide the caregiver with consultation or the discharge plan.

Other Issues

• Immunity. The Act provides that the hospital and its staff 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. The Act does not expressly state whether it immunizes the hospital from claims the hospital negligently instructed the caregiver. However, an analysis by the nonpartisan House Fiscal Agency states, “The committee rejected an amendment which would have distinguished between outcomes caused by a caregiver's mistake (where the hospital and its workers would not be held liable) and one caused by bad instructions by the hospital (where the hospital and its workers would be held liable).”
• Preservation of Insurance Benefits. In response to concerns raised by consumer advocates, the Act states it does not reduce the obligation of any insurer or other issuer of health benefit plants to provide coverage under those health benefits plans. The concern was that no-fault insurers, worker’s compensation insurers or Medicaid might otherwise use the Act as a basis to deny payment for personal care services provided to injured individuals by family members.
• Goals of the Act. The Act strives to promote and facilitate effective services in a patient’s home following an inpatient hospitalization. Per legislative analysts, the goals of the Act are to improve the patient’s quality of life, prevent admissions to long-term care facilities, avoid re-admissions to hospitals, and contain health care costs. These goals are familiar to anyone who follows health care innovation projects across the country. The federal Centers for Medicare and Medicaid Services has embraced these very goals in regulation, guidance and demonstration projects for Medicare and Medicaid beneficiaries. There is a growing consensus among health policy experts that one significant way to achieve these goals is to provide 360 degree support for a patient discharged from inpatient care, including support in the home and in the community, for social needs as well as direct medical or nursing needs. The Designated Caregiver Act provides one piece of those supports for Michigan residents.
• Compliance. In order to comply with the Act, Michigan hospitals will need to establish policies and procedures, and perhaps customize their electronic medical records to facilitate consistent and compliant documentation of the newly-required information. Dykema is happy to assist with any of those tasks.

For further information, contact Joanne Lax at 248-203-0816 or jlax@dykema.com, or your Dykema relationship attorney.