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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 patients 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 patients 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 patients 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 patients discharge or transfer to another facility as soon as possible, and, in any event, upon issuance of a discharge order by the patients attending physician. As soon as possible, prior to a patients discharge from a hospital, the hospital would be required to consult with the designated caregiver and issue a discharge plan that describes a patients after-care assistance needs, if any. The consultation would occur on a schedule that takes into consideration the severity of the patients 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 patients 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 patients 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 patients medical record, including: the caregivers 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 patients decision not to designate a caregiver, if applicable; or the hospitals 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 laws 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 patients 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 Professionals 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 individuals 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 individuals 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 patients discharge from a hospital that is related to the patients 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 patients 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 patients exit or release from a hospital to the patients residence following any medical care or treatment rendered to the patient following an inpatient admission.
Entry means a patients 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 patients 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 patients legal guardian, with an opportunity to designate at least one caregiver following the patients entry into a hospital, and prior to the patients discharge to the patients residence, in a timeframe that is consistent with the discharge planning process provided by regulation. The hospital shall promptly document the request in the patients 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 patients legal guardian with an opportunity to designate a caregiver within a given timeframe, at the discretion of the attending physician, following the patients recovery of consciousness or capacity. The hospital shall promptly document the attempt in the patients 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 patients medical record.
d. In the event that the patient or the patients 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 patients legal guardian to release medical information to the patients designated caregiver following the hospitals 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 patients legal guardian declines to consent to release medical information to the patients 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 patients discharge plan under section 5 of P.L.2014, c.68 (C.26:2H-5.28).
(2) The hospital shall record the patients designation of caregiver, the relationship of the designated caregiver to the patient, and the name, telephone number, and address of the patients designated caregiver in the patients medical record.
e. A patient or the patients legal guardian may elect to change the patients designated caregiver at any time, and the hospital must record this change in the patients medical record before the patients discharge.
f. This section shall not be construed to require a patient or a patients legal guardian to designate any individual as a caregiver.
g. A designation of a caregiver by a patient or a patients 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 patients designated caregiver of the patients discharge or transfer to another facility as soon as possible and, in any event, upon issuance of a discharge order by the patients 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 patients medical record.

C.26:2H-5.28 Hospital to consult with designated caregiver.
5. a. As soon as possible prior to a patients discharge from a hospital to the patients residence, the hospital shall consult with the designated caregiver and issue a discharge plan that describes a patients after-care assistance needs, if any, at the patients residence. The consultation and issuance of a discharge plan shall occur on a schedule that takes into consideration the severity of the patients 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 patients 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 patients 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 patients 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 hospitals 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 caregivers questions provided in a culturally-competent manner and in accordance with the hospitals requirements to provide language access services under State and federal law.
c. Any instruction required under this act shall be documented in the patients 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 patients 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.


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
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Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
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Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
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