Section 191.2290

Title XII PUBLIC HEALTH AND WELFARE

Chapter 191

Effective - 28 Aug 2022   

  191.2290.  Citation of law — definitions — state of emergency, designated essential caregiver designation — requirements. — 1.  The provisions of this section and section 630.202 shall be known and may be cited as the "Essential Caregiver Program Act".

  2.  As used in this section, the following terms mean:

  (1)  "Department", the department of health and senior services;

  (2)  "Essential caregiver", a family member, friend, guardian, or other individual selected by a facility resident or patient who has not been adjudged incapacitated under chapter 475, or the guardian or legal representative of the resident or patient;

  (3)  "Facility", a hospital licensed under chapter 197 or a facility licensed under chapter 198.

  3.  During a state of emergency declared pursuant to chapter 44 relating to infectious, contagious, communicable, or dangerous diseases, a facility shall allow a resident or patient who has not been adjudged incapacitated under chapter 475, a resident's or patient's guardian, or a resident's or patient's legally authorized representative to designate an essential caregiver for in-person contact with the resident or patient in accordance with the standards and guidelines developed by the department under this section.  Essential caregivers shall be considered as part of the resident's or patient's care team, along with the resident's or patient's health care providers and facility staff.

  4.  The facility shall inform, in writing, residents and patients who have not been adjudged incapacitated under chapter 475, or guardians or legal representatives of residents or patients, of the essential caregiver program and the process for designating an essential caregiver.

  5.  The department shall develop standards and guidelines concerning the essential caregiver program, including, but not limited to, the following:

  (1)  The facility shall allow at least two individuals per resident or patient to be designated as essential caregivers, although the facility may limit the in-person contact to one caregiver at a time.  The caregiver shall not be required to have previously served in a caregiver capacity prior to the declared state of emergency;

  (2)  The facility shall establish a reasonable in-person contact schedule to allow the essential caregiver to provide care to the resident or patient for at least four hours each day, including evenings, weekends, and holidays, but shall allow for twenty-four-hour in-person care as necessary and appropriate for the well-being of the resident or patient.  The essential caregiver shall be permitted to leave and return during the scheduled hours or be replaced by another essential caregiver;

  (3)  The facility shall establish procedures to enable physical contact between the resident or patient and the essential caregiver.  The facility may not require the essential caregiver to undergo more stringent screening, testing, hygiene, personal protective equipment, and other infection control and prevention protocols than required of facility employees;

  (4)  The facility shall specify in its protocols the criteria that the facility will use if it determines that in-person contact by a particular essential caregiver is inconsistent with the resident's or patient's therapeutic care and treatment or is a safety risk to other residents, patients, or staff at the facility.  Any limitations placed upon a particular essential caregiver shall be reviewed and documented every seven days to determine if the limitations remain appropriate; and

  (5)  The facility may restrict or revoke in-person contact by an essential caregiver who fails to follow required protocols and procedures established under this subsection.

  6.  (1)  A facility may request from the department a suspension of in-person contact by essential caregivers for a period not to exceed seven days.  The department may deny the facility's request to suspend in-person contact with essential caregivers if the department determines that such in-person contact does not pose a serious community health risk.  A facility may request from the department an extension of a suspension for more than seven days; provided, that the department shall not approve an extension period for longer than seven days at a time.  A facility shall not suspend in-person caregiver contact for more than fourteen consecutive days in a twelve-month period or for more than forty-five total days in a twelve-month period.

  (2)  The department shall suspend in-person contact by essential caregivers under this section if it determines that doing so is required under federal law, including a determination that federal law requires a suspension of in-person contact by members of the resident's or patient's care team.

  (3)  The attorney general shall institute all suits necessary on behalf of the state to defend the right of the state to implement the provisions of this section to ensure access by residents and patients to essential caregivers as part of their care team.

  7.  The provisions of this section shall not be construed to require an essential caregiver to provide necessary care to a resident or patient and a facility shall not require an essential caregiver to provide necessary care.

  8.  The provisions of this section shall not apply to those residents or patients whose particular plan of therapeutic care and treatment necessitates restricted or otherwise limited visitation for reasons unrelated to the stated reasons for the declared state emergency.

  9.  A facility, its employees, and its contractors shall be immune from civil liability for an injury or harm caused by or resulting from:

  (1)  Exposure to a contagious disease or other harmful agent that is specified during the state of emergency declared pursuant to chapter 44; or

  (2)  Acts or omissions by essential caregivers who are present in the facility;

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as a result of the implementation of the essential caregiver program under this section.  The immunity described in this subsection shall not apply to any act or omission by a facility, its employees, or its contractors that constitutes recklessness or willful misconduct.

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(L. 2022 H.B. 2116, et al. merged with S.B. 710)