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    Maryland Register
    Issue Date:  January 5, 2018
    Volume 45• Issue 1 • Pages 17—19
    Title 10
    Subtitle 07 HOSPITALS
    10.07.01 Acute General Hospitals and Special Hospitals
    Authority: Health-General Article, §§19-308, 19-342, [and] 19-349.1, and
    , Annotated Code of Maryland
    Notice of Proposed Action
    The Secretary of Health proposes to amend Regulations .01 and .29 and adopt new Regulations .35—.37 under COMAR 10.07.01 Acute General and Special Hospitals.
    Statement of Purpose
    The purpose of this action is to:
    (1) Comply with Ch. 377 (HB 1277), Acts of 2016, regarding the designation of lay caregivers;
    (2) Clarify the hospitals’ statutory requirements to comply with the Maryland Health Care Decisions Act;
    (3) Clarify the requirements for hospitals to notify patients of outpatient status; and
    (4) Update this chapter to match other sections of COMAR under the purview of OHCQ as it relates to patient rights.
    Comparison to Federal Standards
    There is a corresponding federal standard to this proposed action, but the proposed action is not more restrictive or stringent.
    Estimate of Economic Impact
    The proposed action has no economic impact.
    Economic Impact on Small Businesses
    The proposed action has minimal or no economic impact on small businesses.
    Impact on Individuals with Disabilities
    The proposed action has no impact on individuals with disabilities.
    Opportunity for Public Comment
    Comments may be sent to Michele Phinney, Director, Office of Regulation and Policy Coordination, Maryland Department of Health, 201 West Preston Street, Room 512, Baltimore, MD 21201, or call 410-767-6499 (TTY 800-735-2258), or email to mdh.regs@maryland.gov, or fax to 410-767-6483. Comments will be accepted through February 5, 2018. A public hearing has not been scheduled.
    .01 Definitions.
    A. (text unchanged)
    B. Terms Defined.
    (1)—(4) (text unchanged)
    (4-1) Aftercare.
    (a) “Aftercare” means any assistance provided by a lay caregiver to a patient after discharge of the patient. 
    (b) “Aftercare” includes tasks that are limited to the patient’s condition at the time of discharge that do not require a licensed professional.
    (5)—(18) (text unchanged)
    (18-1) “Lay caregiver” means an individual who:
    (a) Is an adult;
    (b) Is designated as a lay caregiver by a patient or the legal guardian of a patient; and
    (c) Performs aftercare for the patient at the residence of the patient.
    (19)—(30) (text unchanged)
    (30-1) Residence.
    (a) “Residence” means a dwelling that a patient considers to be home. 
    (b) “Residence” does not include:
    (i) A rehabilitation facility;
    (ii) A hospital;
    (iii) A nursing home;
    (iv) An assisted living; or
    (v) A group home licensed by the State. 
    (31)—(37) (text unchanged)
    .29 Notice to Patients of Outpatient on Observation Status.
    A.—E. (text unchanged)
    F. For Medicare patients only, a hospital has the option to provide only the notice required by Medicare under 42 CFR §489.20(y). Hospitals that elect to use that option shall be considered compliant with this regulation if the notice is provided to patients that receive on-site services for more than 23 hours.
    .35 Designation of Lay Caregivers.
    A. A hospital shall provide a patient or legal guardian of a patient with an opportunity to designate one lay caregiver before the discharge of the patient to their residence.
    B. The hospital’s discharge planning shall include the designation of the lay caregiver as soon as practicable in the discharge planning process to allow for post discharge training.
    C. If a patient or legal guardian of a patient declines to designate a lay caregiver, the hospital shall:
    (1) Document the decision in the patient’s medical record; and
    (2) Be deemed to be in compliance with this regulation.
    D. If a patient or legal guardian of a patient designates a lay caregiver the hospital shall record in the patient’s medical record:
    (1) The designation of the lay caregiver;
    (2) The relationship of the lay caregiver to the patient; and
    (3) The name, telephone number, and address of the lay caregiver.
    E. Release of Medical Information.
    (1) If the patient designates a lay caregiver, the hospital shall request the patient or legal guardian to consent in writing to release medical information to the lay caregiver. The release of records shall be in accordance with:
    (a) The hospital’s procedures for releasing personal health information; and
    (b) All applicable federal and State laws.
    (2) If a patient or legal guardian of a patient declines to consent to the release of medical information to the lay caregiver, the hospital is not required to:
    (a) Provide to the lay caregiver the notice required under Health-General Article, §19-382, Annotated Code of Maryland; or
    (b) Consult with the lay caregiver or provide to the lay caregiver information contained in the discharge plan issued under Health-General Article, §19-383, Annotated Code of Maryland.
    F. A patient or a legal guardian of the patient may change the designation of a lay caregiver in the event the lay caregiver becomes incapacitated.
    G. Regardless of the desire of the patient or legal guardian of the patient, the designated lay caregiver is not obligated to perform any aftercare for the patient.
    H. A patient or legal guardian is not required to designate a lay caregiver.
    I. Hospital Obligations.
    (1) If a patient or legal guardian of a patient designates a lay caregiver, the hospital shall notify the lay caregiver as soon as practicable of the discharge of the patient or the patient’s transfer to another hospital, licensed health care facility or other residential facility.
    (2) As soon as practicable before the discharge of a patient, the hospital shall attempt to:
    (a) Consult with the patient’s lay caregiver to prepare the lay caregiver for the patient’s aftercare; and
    (b) Issue a discharge plan that describes the aftercare needs of the patient.         
    (3) The hospital shall make reasonable attempts to consult with the lay caregiver.
    (4) The inability of the hospital to consult with a lay caregiver may not interfere with, delay, or otherwise affect the medical care provided to the patient or the patient’s planned discharge.
    (5) The hospital shall document successful or unsuccessful attempts to contact the lay caregiver.
    J. Discharge Planning Requirements. Regardless of the request for the designation of a lay caregiver, the hospital shall comply with all discharge planning requirements in:
    (1) Regulation .27 of this chapter;
    (2) The standards imposed under the hospital’s accreditation by a State-approved accreditation organization; and
    (3) 42 CFR §482.43.
    K. The designation of a lay caregiver may not:
    (1) Interfere with the rights of an agent to make health care decisions under Health-General Article, Title 5, Subtitle 6, Annotated Code of Maryland; or
    (2) Create a private right of action against a hospital, a hospital employee, or a duly authorized agent of a hospital or otherwise supersede or replace existing rights or remedies under any other State or federal law.
    .36 Patient Rights.
    A. A hospital shall develop a listing of the rights of patients that is consistent with the requirements of:
    (1) The Joint Commission;
    (2) Health-General Article, §19-342, Annotated Code of Maryland; and
    (3) 42 CFR §482.13.
    B. The hospital’s patient rights shall at minimum address:
    (1) Patient privacy and confidentiality;
    (2) Informed decision making and informed consent;  
    (3) Visitation;
    (4) Advance directives;
    (5) Access to patient medical records;
    (6) Complaint and grievance process;
    (7) Freedom from:
    (a) Physical or mental abuse;
    (b) Neglect;
    (c) Harassment; or
    (d) Corporal punishment;
    (8) A patient’s right to expect and receive appropriate assessment, management, and treatment of pain as an integral component of the patient’s care; and
    (9) Communication in a manner the patient can understand.
    C. All patients receiving services at the hospital, have the right to receive written copies of the hospital’s patient rights.
    D. The hospital’s patient rights shall be easily accessible to patients and visitors.
    E. Hospital staff who are responsible for patient care shall:
    (1) Receive training regarding the hospital’s patient rights; and
    (2) Be able to assist patients and their families to:
    (a) Access the services of the hospital’s patient advocacy staff; 
    (b) File a complaint or grievance; or
    (c) Obtain a written copy of the hospital’s patient rights documents.
    .37 Maryland Health Care Decisions Act.
    A hospital shall comply with the requirements of Health-General Article, Title 5, Subtitle 6, Annotated Code of Maryland.
    Secretary of Health