Assisted Living homes and centers have some new statutory obligations and protections as of January 1, 2024. A law that was partially sponsored by industry trade organizations was signed by Governor Hobbs in May addresses emergency transportation and admissions of their residents to the hospital, as well as hospital discharges. This article addresses some steps that facilities can take to get prepared to comply with these new requirements.
1) Initially, assisted living facilities will have to review their current “Face Sheets” to ensure that the documentation contained on them include the items required in A.R.S. 36-420.04(A). A Face Sheet is essentially a one-page summary of basic information about a patient/resident. Some of the items required by the new law to be on a written document provided to emergency responders are a prescription list, including over-the-counter medications and how frequently they are administered, as well as any known allergies to medications, additives, preservatives or materials like latex or adhesives. Information about the resident’s physical and mental conditions and basic medical history, such as having diabetes or a pacemaker or experiencing frequent falls or cardiovascular and cerebrovascular events, as well as dates of any known recent episode should also be included. The resident’s current pharmacy, primary care physician, and power of attorney or authorized representative’s names and contact information are required to be on the face sheet, along with a point of contact for the assisted living facility.
2) The facility point of contact must be able to respond to questions 24/7, and is supposed to also provide a copy of the resident’s HIPAA release authorizing the receiving hospital to communicate with the facility and to plan for discharge.
We feel the last requirement is a bit extraneous, considering that assisted living facilities are licensed health care institutions pursuant to A.R.S. § 36-401, et. seq., and there is no breach of HIPAA medical confidentiality when the communications are made in furtherance of anticipated continued medical treatment of the individual. Moreover, only the U.S. Department of Health and Human Services, Office for Civil Rights, is entitled to enforce the HIPAA Privacy and Security rules. Nevertheless, to err on the side of caution and ensure that a hospital does not use the lack of a HIPAA release as an excuse not to communicate regarding discharge planning, it is a good practice to incorporate a general medical release that is enforceable until it is revoked in writing by the resident or authorized representative into the resident’s intake packet upon admission to the facility. Feel free to contact us or a healthcare legal professional of your choice if you need a comprehensive Medical Records Release form for your business use.
3) Subsection A of the new statute (A.R.S. §420.04) also requires the facility to include a copy of the resident’s advance directives, if any on file. This section appears to disregard the Arizona Healthcare Directives Registry that has been in effect for well over a year, since the system was switched away from the Department of the Secretary of State. Facility owners and operators are encouraged to be familiar with the AHD Registry website, which hospitals can access. If facilities are allowed to note if advance directives are on the registry, this may save some paperwork required to be delivered to the EMTs.
4) In addition to the above Face Sheet-related documentation, the facility is expected to provide a written reason why the emergency responder was requested on behalf of the resident. The EMTs are now obligated by this statute to provide the written materials described above to the receiving hospital. This statutory responsibility imposed upon EMTs attempts to address a problem that facilities have encountered when the information that they sent with the resident does not seem to find its way to the proper hospital personnel. Industry groups have again collaborated and developed a form to use for this purpose.
5) The facility is obligated to notify the resident’s authorized representative that the resident was transported to the hospital and provide the name and location of the hospital. Thus, it will be important for management to instruct staff to not only have the paperwork ready to accompany the resident in a medical emergency, but also to ask the EMTs what hospital they intend to transport the resident to.
6) The assisted living facility is expected to maintain a copy of the document provided to the emergency responder for two (2) years after the date of the emergency. In the home setting, this imposes an additional obligation on staff to not only help address the emergency for which EMTs were called, but also perform administrative tasks of making and maintaining a copy of everything that accompanied that resident with the EMTs. The statute calls for periodic updating of the Face Sheets. In facilities using electronic recordkeeping systems, this will be easier than the small-business home setting, which are still typically paper-based for cost considerations.
However, the statute provides certain beneficial protections to both assisted living homes and centers with respect to patient discharges, and obligations on the part of the discharging hospital, which will be addressed in Part II of this Article.
It is also important to note that behavioral health residential facilities were exempted from this statute as it wound its way through the legislative process, and skilled nursing facilities are also not covered by its terms.
Finally, none of the above applies if the family or a non-emergency third party transports the resident to the emergency room or for an outpatient procedure that does not involve direct contact of an emergency responder by an assisted living facility on behalf of the resident.
The information herein is intended to be educational and an introduction to the subject matter presented. Despite any statutory or regulatory references cited in the article above, it is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to Davis, Miles PLLC if you would like specific advice on this topic.
Look for additional blog posts on topics of interest to Assisted Living and Behavioral Health operators. We welcome topic suggestions! Write to jwassermann@davismiles.com if you are curious to learn more about a certain topic impacting assisted living or other group housing concerns.