Establishes the transition authorization panel demonstration program

*in many instances there are hospital patients who are medically ready to transition to a different level of care, such as nursing home care, home care or assisted living, but they lack capacity to authorize the transition, and also lack a family member or other person who can authorize the transition on their behalf.

*as a result, such patients can be subject to inordinate delays in accomplishing a needed transition, and can remain as hospital inpatients for long periods.

*delay is harmful to the interests of those patients, as well as to other persons who may need the scarce inpatient resources, to hospitals, to payors and to the public in general.

*it would be valuable to study an alternative, approach to secure decisions relating to the transition of isolated incapable patients from inpatient care to post-acute care.

*the transition authorization panel demonstration program shows promise as means to protect the rights and interests of incapable patients in the transition decision, while allowing such decisions to be made within a reasonable timeframe.

Section 2 adds a new section 2803-s to the Public Health Law, called "Transition authorization panel demonstration program."

Subsection 1 would state that the transition authorization panel (TAP) program is established at five sites.

Subsection 2 sets forth definitions. Significantly, it defines "eligible patient" to mean an inpatient at a participating hospital who, according to the patient's attending physician:

(i) is ready to be discharged as an inpatient, but needs to be transitioned to post-acute care;

(ii) lacks capacity to consent to the discharge and to admission to post-acute care;

(iii) does not have a guardian, health care agent or power of attorney, or a family member, friend or other representative who is reasonably available and willing to make a transition decision on his

or her behalf, and whose consent would be accepted by a proposed post-acute care provider;

(iv) has a discharge plan that identifies an appropriate post-acute care provider that is or may be willing to admit the patient if a transition authorization panel were to authorize the transition and, if necessary, make transition-related financial arrangements; and

(v) has not expressed an objection to any of the foregoing findings or to being transitioned to the proposed post-acute facility or service or, if applicable, the proposed transition-related financial arrangements;

This subsection also defines "Participating hospital" to mean any of the following hospitals: (i) Crouse Hospital, Syracuse NY; (ii) Glens Falls Hospital, Glens Falls NY; (ii) Memorial Hospital, Albany NY; (iii) Samaritan Hospital, Troy, NY; (iv) University of Rochester Medical Center, Rochester NY, and Wyckoff Heights Medical Center, Brooklyn, NY.

This subsection also defines "Post-acute care," "Transition authorization," "Transition authorization panel agent," "Transition authorization panel," "Transition authorization panel pool" and "Transition-related financial arrangements."

Subsection 3 sets forth the responsibilities of participating hospitals, including the responsibility to designate a person as administrator of the program at that site, and to carry out, and bear the costs of, the administrative responsibilities of the program and create and maintain records related to requests, panels convened and actions taken.

Subsection 4 authorizes each participating hospital to create a transition authorization pool the collection of persons at each site who can serve on transition authorization panels.

Subsection 5 provides that requests for transition authorization and for transition-related financial arrangements may be undertaken by transition authorization panels, and describes the selection and composition of such panels.

Subsection 6 sets forth the procedure for requesting a panel, and for notice to involved persons.

Subsection 7 sets forth the procedure for review by a transition authorization panel.

Subsection 8 specifies what the panel may determine and authorize.

Subsection 9 provides that a participating hospital, the social services department, and any other person may, but shall not be required to, enter into an agreement with a post-acute provider for such hospital, department or other person to petition for the appointment of a guardian under Mental Hygiene Law Art. 81 for a patient transitioned pursuant to the order of a panel,

Subsection 10 provides immunity to persons who act in good faith as panel members, and others who act in good faith pursuant to this Act.

Subsection 11 requires the administrator of each panel to submit an annual report to the commissioner of health, and specifies the contents of the report.

Section 3 provides for the Act to take effect immediately.

Existing law

In general, when a hospital, inpatient needs to be transferred to post-acute care, the patient must consent to the discharge from the hospital, the admission to the post-acute care provider, and the financial arrangements with the post-acute care provider. When a patient lacks capacity, hospitals will often try to turn to a close family member to make this decision. However:

1. Unless the family member is guardian (e.g., under MHL Article 81) or a health care agent, the family member will not have clear legal authority to authorize the patient's discharge from the hospital or admission to the post-acute care facility. While some post-acute care facilities will admit incapable patients based on a family member consent, others will not;

2. Unless the family member is a guardian of the property, or holds a power of authority of authority from the patient, or jointly owns property with the patient, the family member is unlikely to be able make the financial arrangements on behalf of the patient that may be necessary to secure admission to the post-acute care facility.

3. Many patients do not have family members or close friends. For those isolated patients, none has the authority to consent to the patient's discharge from the hospital or admission to the post acute care setting, or to make the financial arrangements with the post acute care provider.

The passing of the Family Health Care Decisions Act (S.3164B/A.7729D) helps with problem 1 above, because it gives clear authority to family members and close friends to make health care decisions - which would probably encompass the discharge and admission decision. But it does not help with problems 2 and 3.

Currently, in many instances when an incapable inpatient is ready to be discharged, but lacks a health care or financial decision-maker, the hospital or social services district find it necessary to bring a guardianship under MHL Article 81 in order to give someone the authority to accomplish the transition. A guardianship proceeding can take weeks or months, during which time the patient is unnecessarily hospitalized.

Justification

In many instances there are hospital patients who are medically ready to transition to a different level of care, such as nursing home care, home care or assisted living, but they lack capacity to authorize the transition, and also lack a family member or other person who can authorize the transition on their behalf As a result, such patients can be subject to inordinate delays in accomplishing a needed transition, and can remain as hospital inpatients for long periods. That delay is harmful to the interests of those patients, as well as to other persons who may need the scarce inpatient resources, to hospitals, to payors and to the public in general.

While Article 81 of the Mental Hygiene Law provides a procedure for the court-appointment of guardians who could be empowered to authorize transition for such patients, that procedure was designed for longer-term assistance with an incapacitated person's personal and property affairs, and includes features that appear to go beyond what is needed for transition-related decisions alone. As a result, the guardianship proceeding can require far more time, effort and expense than is warranted for this limited, non-contested decision.

This bill would test an alternative approach to secure decisions relating to the transition of isolated incapable patients from inpatient care to post-acute care. The approach would be tested at six sites - Crouse Hospital in Syracuse, Glens Falls Hospital, Memorial Hospital in Albany, Samaritan Hospital in Troy, the University of Rochester Medical Center in Rochester and Wycoff Heights Medical Center in Brooklyn. Each participating hospital would establish a "transition panel pool" - a group of persons qualified to serve on "transition authorization panels.

When the hospital identifies a person who appears to be an "eligible patient," it could convene a "transition authorization panel" to make the transition authorization decision and transition related financial arrangements.

An eligible patient is a patient who (1) is ready to be discharged as an inpatient, but needs to be transitioned to post-acute care; (ii) lacks capacity to consent to the discharge and to admission to post-acute care; (iii) does not have a guardian, health care agent or power of attorney, or a family member, friend or other representative who is willing and legally authorized to make a transition decision on his or her behalf, and whose consent would be accepted by a proposed post-acute care provider; (iv) has a discharge plan that identifies an appropriate post-acute care provider that is or may be willing to admit the patient if a panel were to authorize the transition and, if necessary, make transition-related financial arrangements; and (v) has not expressed an objection to any of the foregoing findings or to being transitioned to the proposed post-acute facility or service or, if applicable, the proposed transition-related financial arrangements;

The transition authorization panel, or TAP, would be composed of three persons -- one person appointed by the hospital, one appointed by the local social services district, and one jointly appointed. The TAP could be convened quickly and, while employing basic procedural protections, could decide whether the patient is in fact eligible. It could then authorize an appropriate discharge, as well as the discharge related financial arrangements.

In many cases, the patient will still need a guardian for long term personal or property management. But the TAP process will make it possible for the guardianship to occur after the patient has been discharged to an appropriate care setting, rather than while in the hospital.

It is hoped that the TAP process will prove to be an ethically sound, practical approach to facilitate the transition of incapable inpatients from the hospital to appropriate post-acute settings. If so, the TAP process will benefit patients, families, providers, and the public generally.

This is only a demonstration bill; the authority granted by it would expire in three years and ninety days. Each of the five sites will collect data on their experience and annually forward that data to the NYS Department of Health. The Department will compile the data and forward a report to the Legislature. The Legislature will then be in a position to decide whether to continue, end, or modify the demonstration, or apply the model more broadly.

Legislative history

New bill.

Fiscal implications

The bill will have no appreciable budgetary impact.

Effective date

Immediately and shall expire 3 years and 90 days after it becomes law.