The Designated Support Person: A Different Kind of DSP

Introduction

Governor Northam recently signed into law a statute that will require certain licensed medical facilities in Virginia to always allow “designated support persons” to visit and assist patients with disabilities. This statute will be effective July 1, 2021. Due to this impending statute, the Virginia Department of Health released a guidance document detailing how licensed medical facilities should implement the “designated support persons” requirement during the COVID-19 pandemic. This guidance document will be effective April 1, 2021. This Client Advisory summarizes these requirements and provides recommended changes to visitation policies and procedures based on these new requirements.

New Requirements for Visitation Policies and Procedures

Visitation policies have existed by custom and statute for years.[1] The pandemic forced a shutdown of most facilities, affecting visitor access and closing off needed outside support. However, beginning April 1, all general hospitals, outpatient surgical hospitals, and hospice facilities must:[2]

• Allow patients with a disability (who require assistance because of the disability) to be accompanied by a designated support person at any time health care services are provided; and
• Establish and publish policies and procedures addressing designated support persons. These policies must be posted online and provided to patients when health care services are provided or upon request.

For these requirements, a “person with a disability” is defined as a person with a physical, mental, emotional, or sensory impairment that substantially impacts one or more major life activity or who has a record of such impairment.

The Designated Support Person

The designated support person can be any person who is at least 18 years of age who is knowledgeable about the needs of the person with the disability. The designated support person must be designated, orally or in writing, by the person with the disability, their guardian, their authorized representative, or their care provider. This person must provide support and assistance necessary and ongoing for the care of the person with the disability that requires that the designated support person remain present. This assistance can include, but is not limited to: physical assistance, emotional support, communication assistance, and assistance with decision-making. This person is not subject to any visitation restrictions, but may be subject to other reasonable health and safety policies. The patient or the patient’s guardian/representative should communicate with the facility in advance of admission or as soon as possible after admission regarding the patient’s need for assistance. In response, the facility should explain its policies regarding designated support persons and ask the designated support person be identified.

Facility Policy Considerations

The facility’s policies and procedures should include several considerations to meet these new requirements. The policies and procedures should create a process for establishing a designated support person, changing the designated support person, and documenting this designation. The facility must allow designation of more than one designated support person if the patient’s admission is expected to last longer than 24 hours. However, the facility may choose to allow only one designated support person to be present at a time.

A facility may require the person with the disability or the guardian of this person to provide documentation demonstrating the disability. The policies and procedures should describe what documentation can satisfy such a request. The facility must allow the person or guardian at least a day to provide such documentation. If this documentation is not provided, the facility may have a licensed health care professional perform a generally accepted objective assessment to determine if the patient has a disability. The facility’s policy should state which assessment tool its licensed health care professionals will utilize to make this assessment. Until this documentation is provided, or the objective assessment is completed, the designated support person must be allowed access to the patient. If the facility elects not to have this assessment done, it must allow the designated support person access to the patient. Given the potential risks of having an unassessed patient and giving a designated support person priority access to the building, development of a designated support person policy and assessment process should be a priority.

The facility must spell out reasonable health and safety requirements applicable to designated support persons. This policies and procedures can include:

• Contact information for purposes of contact tracing,
• Infection control practices,
• Restrictions on movement on the premises of the facility,
• Reasonable requirements to protect the health and safety of patients and staff,
• Denial of entry to a designated support person if a facility reasonably determines such person is reasonably suspected or confirmed to have been exposed to, or tested positive for, a communicable disease and if the contagion risk posed by the presence of the designated support person cannot be reasonably mitigated, and
• Denial of entry to a designated support person for failing or refusing to participate in a communicable disease screening or for exhibiting symptoms associated with a communicable disease.

If a facility denies entry of a designated support person for one of the above reasons, the facility must either allow for redesignation of an alternative support person or assign appropriate staff to the patient who can provide the necessary support. Alternatively, a facility may propose reasonable accommodations that will allow a designated support person to comply with such requirements if the accommodations do not adversely impact the health of others.

Facilities subject to the statute concerning designated support persons must ensure that they continue to meet their licensure obligations, including the new designated support person requirement. If the facility does not comply with the statute, it could be subject to survey deficiencies,[3] civil penalties,[4] or, theoretically, its license may be revoked.[5]

COVID-19 Considerations

If the patient is positive (or presumptively positive) for COVID-19, a facility may encourage reasonable alternatives to providing support to protect health and safety. If the patient requires physical assistance, the facility should provide an alternative to the designated support person to ensure the patient receives the assistance they require in compliance with the facility’s infection prevention and control policies and procedures. The facility should discuss these alternatives with the patient and/or their representative or guardian. The facility should continue to inform the patient and/or the patient’s representative or guardian of the assistance provided. If the assistance the patient requires is not physical, the facility should provide virtual support or provided limited in-person patient access to the designated support person. If in-person assistance is required, the facility may require the designated support person to receive special training on the facility’s infection control practices and the wearing of personal protective equipment.

Conclusion

Licensed medical facilities subject to the designated support person requirements should review and update their visitation policies and procedures consistent with the statute and guidance document. The new statute requires the Board of Health to promulgate regulations concerning the designated support person within 280 days of July 1, 2021. If the statute applies to your facility, you should keep an eye out for future regulations. These regulations will likely be more generally applicable in nature, as compared to the current guidance document concerning the implementation of the designated support person during the COVID-19 pandemic. Any future regulations will need to address the risks and potential liabilities of designated support persons in health care facilities.

Should you, your practice, or your business have any questions about the new “designated support person” requirements or general operations and policy review, please contact Peter Mellette, Harrison Gibbs, or Elizabeth Dahl Coleman at Mellette PC.

This client advisory is for general educational purposes only and does address all provisions and/or requirements of the referenced Guidance Document or statute concerning “designated support persons.” It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

[1] See Va. Code § 32.1-127(B)(15) (requiring regulations establishing visitation policies for hospitals, subject to medical and security restrictions); 12 VAC 5-410-230(F) (same).

[2] Effective July 1, 2021, the new statute will apply this requirement to every: hospital that provides inpatient care, other than a hospital that is certified as a long-term acute care hospital or specialty rehabilitation hospital; outpatient surgical hospital; hospice facility; and any hospital or nursing home owned or operated by an agency of the Commonwealth unless such hospital or nursing home or portion thereof is certified as a nursing facility.

[3] When the hospital is inspected pursuant to Va. Code § 32.1-125.1.

[4] See, e.g., Va. Code § 32.1-27 (authorizing injunctive relief and civil penalties upon application to a court).

[5] Va. Code § 32.1-135; 12 VAC 5-410-160.