Indiana recently enacted a law in response to the COVID-19 pandemic that addresses visitation in hospitals and post-acute care facilities during emergencies. The new law calls for hospitals to allow patients to receive visitors during public health or similar emergencies and allows hospitals to implement screening procedures. The new law also calls for the adoption of standards for an “essential family caregiver” program to assist the residential care facility in providing care to the resident that was previously provided by the person before emergency public health restrictions were placed on visitation.
1. Post-Acute Care Visitors
Under the new law, post-acute health facilities licensed under Indiana law and Indiana residential care facilities (collectively “residential care facilities” or “residential care facility”) will allow, in accordance with guidelines from the Centers for Medicare and Medicaid Services (“CMS”), visitation to a resident who has been admitted during (1) a disaster emergency declared under Indiana law, (2) a “public health emergency,” or (3) a similar crisis from one or more of the following individuals:
- A resident’s family member;
- A resident’s legal representative;
- An “essential family caregiver” as determined under Indiana law; and/or
- An individual who can meet the resident’s needs.
Under the new law, visitation shall be allowed regardless of visitation restrictions implemented by the residential care facility, in compassionate care situations, including the following:
- End of life situations;
- A recently admitted resident who is struggling to adapt to the facility and the lack of family support;
- A resident who is grieving the recent death of a family member or friend;
- A resident who is experiencing weight loss or dehydration and is in need of cuing and encouragement for eating or drinking that was previously provided to the resident by a family member or caregiver;
- A resident who is experiencing emotional distress and is not talking or interacting with others as the resident previously had;
- A resident who is diagnosed with Alzheimer’s disease, dementia or a related cognitive disorder, and is experiencing distress due to a lack of visitation; or
- A resident who is failing to thrive.
A residential care facility has the burden of proof in justifying the residential care facility’s decision to deny visitation for a resident’s family member, legal representative or essential family caregiver in a compassionate care situation.
a. Indiana’s “Essential Family Caregiver” Program
In 2020, recognizing the critical role family members and other outside caregivers (e.g., friends, volunteers, private personal caregivers) often have in the care and support of residents, the Indiana State Department of Health (“ISDH”) recommended that residential care facilities consider designating as “essential family caregivers” those family members and other outside caregivers who can provide companionship and/or assist with activities requiring one-on-one direction. The goal of essential family caregivers was to help high-risk residents who are likely to benefit from care provided by a loved one or outside caregiver.
Under the new law, ISDH is charged will adopting standards and guidelines concerning the essential family caregiver program to be implemented during a declared emergency or a public health emergency. The law calls for ISDH’s standards to further the purpose of establishing protocols for a residential care facility to designate a person chosen by a resident or a resident’s designated representative to assist the residential care facility in providing care to the resident that was previously provided by the person before emergency public health restrictions were placed on visitation due to a declared emergency or a public health emergency when visitation is limited or restricted. Either the resident or, if the individual has been deemed to be incapacitated or is a resident of a memory care unit, the resident’s designated representative shall make the determination.
The residential care facility shall allow at least two individuals per resident to be designated, and the resident or the resident’s designated representative shall determine the identity of the primary essential family caregiver to serve as the resident’s main point of contact for communication and care coordination.
A residential care facility shall inform residents of the residential care facility and a resident’s designated representative of the essential family caregiver program and the process for being designated as a resident’s essential family caregiver. The residential care facility’s requirements concerning participation in the program and applying for the designation must be in writing.
2. Acute Care Visitors
Under the new law, a hospital licensed under Indiana law, a freestanding rehabilitation hospital, a private psychiatric hospital licensed under Indiana law and an ambulatory outpatient surgical center licensed under Indiana law (collectively the “facilities” or “facility”) must allow visitation to a patient who has been admitted during (1) a disaster emergency declared under Indiana law, (2) a “public health emergency,” or (3) a similar crisis from one or more of the following individuals:
- A patient’s family member;
- A patient’s legal representative;
- The patient’s designee;
- A member of the clergy;
- An essential caregiver; and/or
- Any other individual capable of meeting the patient’s needs.
a. Acute Care – Compassionate Care Visits
Under the new law, a visitor will be permitted to daily visit a patient who is admitted as a patient without regard for any visitation restrictions imposed by the facility during a compassionate care situation that involves one or more of the following scenarios:
- An end-of-life situation, including hospice;
- A patient who is experiencing weight loss or dehydration and is in need of cuing or encouragement for eating or drinking;
- A patient who is experiencing emotional distress, depression or grief;
- A patient who is diagnosed with Alzheimer’s disease, dementia or a related cognitive disorder;
- The patient is experiencing an acute health situation that requires immediate attention;
- The patient is undergoing surgery with general anesthesia;
- The patient is experiencing a sudden deterioration in the patient’s medical condition; and/or
- The patient is unable to provide or does not know pertinent and critical medical information that would aid the health care professional in treating the patient.
b. Acute Care – Visitor Expectations
A person who visits a patient admitted as a patient must comply with the following:
- Applicable guidelines concerning disease control or prevention as determined by CMS or the Centers for Disease Control and Prevention.
- Any facility requirements to undergo screening or to complete testing before visiting a patient admitted as a patient or resident. If a screening protocol or test result prohibits a person from visiting the patient, another individual capable of successfully completing or passing the applicable screening protocol or test may be selected for visitation by the patient.
- Limitations that an individual granted access under the protocols of this section may not access any area other than the patient’s room or area designated or permitted by the facility.
c. Acute Care – Facility Rules Applicable to Visits
The facility may specify any requirement that the facility will implement for the individual who is granted access to the facility, including the following:
- Personal protective equipment requirements and instructions on the proper use of the equipment.
- Restrictions when entering patient rooms.
- Disclosure of any risks associated with the individual’s entry onto the premises, including risks during an epidemic or when a communicable disease is involved.
- Written acknowledgment from the individual entering the premises that the individual: (1) will follow the established protocols; (2) holds the facility, its employees and health care providers harmless for exposure to a disease or other harmful agent specified during a disaster emergency declared under Indiana law while the individual is allowed to enter the facility; and (3) received and acknowledges the disclosure of the risks.
Nothing may be construed to prevent a facility from limiting the number of designated individuals that a patient may see if the limitations are explicitly required under a disaster emergency or public health emergency declaration.
Indiana’s new “essential family caregiver” program and the new visitation rules were enacted as of the passage of the new law, when the Governor signed it into law on April 29, 2021.
Policy and Procedure Updates Needed
Indiana post-acute providers and hospitals should review and revise any of their policies on visitations and documentation of the essential family caregiver.