July, 1993

Information Bulletin 93-4
NH- 9
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HOSP-3
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Bill Of Right Amendment
Disclosure Of Presence In A Facility

Laws of Minnesota 1993, Chapter 54 amends subdivisions 21 and 26 of the state bill of rights. The amendments require that patients and residents of health care facilities be given an opportunity to authorize disclosure of the patient's or resident's presence in the facility.

The amendments apply to all health care facilities - hospitals, nursing homes, boarding care homes, and supervised living facilities. [Another section of the 1993 law also extends coverage of the Bill of Rights to board and lodging facilities that are also licensed by the Department of Human Services as a chemical dependency rehabilitation program.]

The amendments are effective as of August 1, 1993.

Distribution And Posting Requirements

http://www.revisor.leg.state.mn.us/stats/144/652.html

Minnesota Statute 144.652 requires that a copy of the bill of rights be posted in a conspicuous place in the facility and that patients and residents be provided a copy of the bill of rights upon admission. A copy of the bill of rights is also required to be provided to the guardian or conservator of a patient or resident.

Facilities will be expected to assure that the amended language is appropriately posted in the facility and that copies of the amendment are provided at the time of admission. It is the department's understanding that a number of provider associations are in the process of revising printed forms of the bill of rights. In the interim, compliance with the law can be met by posting the attached language and by using this information as an "addendum" to the current bill of rights that is provided at the time of admission.

Facility Requirements

The amendment requires that, upon admission, the patient or resident be given the opportunity to authorize disclosure of the patient's or resident's presence in the facility to callers or visitors. This will require that each facility have policies and procedures in place to assure that the authorization is documented during the admission process.

In the event that authorization is not given, the facility will be required to assure that appropriate steps are taken to prevent the disclosure of the patient's or resident's presence. This would clearly include notifying individuals that answer incoming phone lines, not listing the patient's or resident's name on documents used by clergy or other visitors to the facility, not posting the name of the patient or resident on doors and not including the name in documents such as newsletters.

Each facility will need to evaluate how the presence of the patient or resident is made known to callers or visitors. In situations where the patient or resident does not authorize disclosure, the facility will be responsible for assuring that the presence of the patient or resident is not disclosed.

This provision also applies to facilities that operate chemical dependency programs that are covered by federal law that prohibits disclosure without the patient's or resident's consent. In these situations, the patient or resident must be given the opportunity to authorize disclosure of his or her presence to callers or visitors.

Hospitals that are operated by the state or by a political subdivision are also subject to the provisions of the Government Data Practices Act. Minnesota Statutes, section 13.384specifically addresses the disclosure of "directory information," the name of the patient, date admitted, general condition and date released. The law provides that if the patient is in the hospital pursuant to legal commitment, such information is considered public. In these situations, the amendments to the bill of rights does not alter that public classification.
http://www.revisor.leg.state.mn.us/stats/13/384.html

For patients that are admitted other than pursuant to legal commitment, directory information is considered public unless the patient requests otherwise, in which case it is private data on individuals. Since the new amendments to the bill of rights requires that a hospital specifically give the patient the opportunity to disclose his or her presence, the classification of the data will not be changed. If the patient authorizes disclosure, the information will be considered public data.

Failure to comply with the provisions of the law will subject facilities to the issuance of correction orders and penalty assessments.

Applicability To Patients And Residents Admitted Prior To 8/1/93.

These amendments specifically require that at the time of admission, the patient or resident be notified of the right to disclose his or her presence in the facility. Since the law is not effective until August 1, 1993, facilities are not obligated to provide notice of this disclosure option to patients or residents admitted prior to August 1, 1993.

However, subdivision 19 of the bill of rights, which was not amended by the 1993 law, provides that residents shall be provided the right "to every consideration of their privacy...." This provision does give the resident the right to authorize the facility to disclose or not disclose his or her presence in the facility.

We are recommending that facilities provide to patients or residents, admitted prior to August 1, 1993, a copy of the amendments and an opportunity to indicate whether they wish to not disclose their presence in the facility. This would reinforce the right the patient or resident has always had under subdivision 19, and would assure that all patients and residents are given an equal opportunity to protect their privacy rights. This could be done through a general distribution of the amendment with a notice indicating that the resident should contact the administrator if he or she does not want their presence in the facility disclosed. We would also suggest that this amendment be discussed during the next scheduled "care conference" to assure that equal treatment is provided to all residents and patients.

Nursing facilities (certified nursing homes and certified boarding care homes) are required under federal law to obtain written acknowledgments of the bill of rights and amendments. Since the provisions of the amended subdivisions apply only to new admissions after August 1, 1993, the Department will not require that written acknowledgment of the receipt of this amendment be obtained.

Patient/Resident Bill Of Rights
1993 Amendments

[Effective: August 1, 1993]

The 1993 Minnesota Legislature amended subdivisions 21 and 26 of the Patient/Resident Bill of Rights, Minnesota Statutes 144.651. These amendments are found in Laws of Minnesota 1993, Chapter 54., Patient and Residents of Health Care Facilities; Bill of Rights]
http://www.revisor.leg.state.mn.us/stats/144/651.html

Subdivision 21. COMMUNICATION PRIVACY. Patients and residents may associate and communicate privately with persons of their choice and enter and, except as provided by the Minnesota Commitment Act, leave the facility as they choose. Patients and residents shall have access, at their expense, to writing instruments, stationery, and postage. Personal mail shall be sent without interference and received unopened unless medically or programmatically contraindicated and documented by the physician in the medical record. There shall be access to a telephone where patients and residents can make and receive calls as well as speak privately. Facilities which are unable to provide a private area shall make reasonable arrangements to accommodate the privacy of patients, or residents, calls. Upon admission to a facility, a patient or resident, or the patient's or resident's legal guardian or conservator, shall be given the opportunity to authorize disclosure of the patient's or resident's presence in the facility to callers or visitors who may seek to communicate with the patient or resident. This disclosure option must be made available in all cases where federal law prohibits unauthorized disclosure of patient or resident identifying information to callers and visitors. To the extent possible, the legal guardian or conservator of a patient or resident shall consider the opinions of the patient or resident regarding the disclosure of the patient's or resident's presence in the facility. This right is limited where medically inadvisable, as documented by the attending physician in the patient's or resident's care record. Where programmatically limited by a facility abuse prevention plan pursuant to section 626.557, subdivision 14, clause b, this right shall also be limited accordingly.
http://www.revisor.leg.state.mn.us/stats/626/557.html

Subdivision 26. RIGHT TO ASSOCIATE. Residents may meet with visitors and participate in activities of commercial, religious, political, as defined in section 203B.11 and community groups without interference at their discretion if the activities do not infringe on the right to privacy of other residents or are not programmatically contraindicated. This includes the right to join with other individuals within and, outside the facility to work for improvements in long-term care. Upon admission to a facility, a patient or resident, or the patient's or resident's legal guardian or conservator, shall be given the opportunity to authorize disclosure of the patient's or resident's presence in the facility, to callers or visitors who may seek to communicate with the patient or resident. This disclosure option must be made available in all cases where Federal law prohibits unauthorized disclosure of patient or resident identifying information to callers and visitors. To the extent possible, the legal guardian or conservator of a patient or resident shall consider the opinions of the patient or resident regarding the disclosure of the patient's or resident's presence in the facility.
http://www.revisor.leg.state.mn.us/stats/203B/11.html

If you have questions regarding this Bulletin, please contact the Minnesota Department of Health, Compliance Monitoring Division, at (651) 201-4101..

Updated Thursday, 17-Mar-2011 11:18:47 CDT