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Iowa Passes Law Recognizing Lay Caregivers Following Inpatient Stay

on Wednesday, 5 June 2019 in Health Law Advisory: Zachary J. Buxton, Editor

On April 9, 2019, Governor Kim Reynolds signed into law Senate File 210 which provides for the designation of a lay caregiver following an inpatient stay at an Iowa hospital. The new law (referred to as the 2019 Iowa CARE Act) requires hospitals to implement discharge policies that require an assessment of the patient’s ability to care for him or herself following discharge. The assessment must include providing the patient or the patient’s legal representative with an opportunity to designate one lay caregiver prior to discharge of the patient. While this new law is relatively short, the devil is in the details.

Hospitals must provide patients with the opportunity to designate a lay caregiver and document the patient’s designation (including any declination to designate a lay caregiver) in the patient’s medical record. If the patient designates a lay caregiver, the hospital must “request written consent from the patient or the patient’s legal representative to release medical information to the lay caregiver in accordance with the hospital’s established procedures for releasing a patient’s personal health information and in compliance with all applicable state and federal laws.” This provision creates a conflict between what would be allowed by federal law, and what will now be required under state law.

Under HIPAA, a hospital could disclose to a family member or friend who is involved in the patient’s care or payment for that care such information as is relevant to that family member’s involvement in the care. A “written consent” would not be required under HIPAA (or Iowa law prior to this bill’s effective date) to provide information regarding discharge of the patient to a family member who has been involved and likely would be helping to care for the patient upon discharge (e.g., a spouse). Under this new law, even though it references a hospital’s established procedures for releasing medical information, written consent must be requested. We believe this more stringent new state law requiring written consent would trump HIPAA’s provisions that otherwise allow the hospital to disclose this post-discharge information to a person the hospital knows is caring for the patient after discharge. Hospitals should evaluate how it will implement this new written consent requirement for designated lay caregivers.

If a lay caregiver has been designated and written consent for the release of medical information provided, the hospital must attempt to notify the lay caregiver of the impending discharge “as soon as practicable.” Discharge includes only discharges to a patient’s home (not to include any nursing facility). The law includes additional detailed requirements for after care assistance instructions that must be provided to the designated lay caregiver. It is important that hospital social workers and discharge planners review this new law and plan for how to incorporate these requirements into the discharge planning process. The new law, which is codified as Sections 144F.1 through 144F.7 of the Iowa Code, goes into effect July 1, 2019.

Vickie B. Ahlers

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