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PRINTER'S NO. 4274
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2811
Session of
2020
INTRODUCED BY OTTEN, FIEDLER, MADDEN, GALLOWAY, SHUSTERMAN,
GREEN, ULLMAN, SCHWEYER, HANBIDGE, HARRIS, WEBSTER, ROZZI,
HILL-EVANS, DeLUCA, GAINEY, ZABEL, NEILSON, CIRESI AND DEASY,
AUGUST 21, 2020
REFERRED TO COMMITTEE ON HEALTH, AUGUST 21, 2020
AN ACT
Providing for public health emergency facility safety.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Public Health
Emergency Facility Safety Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Agent of the resident." An individual who has a power of
attorney or health care power of attorney for a resident in
accordance with 20 Pa.C.S. Chs. 54 (relating to health care) and
56 (relating to powers of attorney).
"COVID-19." The coronavirus disease 2019, an infectious
disease caused by severe acute respiratory syndrome coronavirus
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2 that was first identified during December 2019 in Wuhan,
China.
"Department." The Department of Health of the Commonwealth.
"Do-not-resuscitate order." As the term "out-of-hospital do-
not-resuscitate order" is defined in 20 Pa.C.S. § 5483 (relating
to definitions).
"Facility." Any of the following:
(1) Any of the following entities as defined in section
802.1 of the act of July 19, 1979 (P.L.130, No.48), known as
the Health Care Facilities Act:
(i) A long-term care nursing facility.
(ii) A home health care agency.
(iii) A home care agency.
(iv) A hospice.
(2) Any of the following entities as defined in section
1001 of the act of June 13, 1967 (P.L.31, No.21), known as
the Human Services Code:
(i) A personal care home.
(ii) An assisted living residence.
(3) A veterans' home that is operated by the Department
of Military and Veterans Affairs.
(4) Domiciliary care as defined in section 2202-A of the
act of April 9, 1929 (P.L.177, No.175), known as The
Administrative Code of 1929.
(5) An older adult daily living center as defined in
section 2 of the act of July 11, 1990 (P.L.499, No.118),
known as the Older Adult Daily Living Centers Licensing Act.
"Facility outbreak." An outbreak of a disease within a
facility that has the following characteristics:
(1) Is believed to be caused by the emergence and spread
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of a novel or previously eradicated infectious disease.
(2) Poses a high probability of any of the following in
the affected population:
(i) Death.
(ii) Serious or long-term disability.
(iii) Exposure to an infectious disease, which poses
a significant risk of substantial present or future harm
to the health and safety of the residents and staff of a
facility.
"Health information." Includes positive or presumed positive
infectious disease test results, additions of medical treatments
or interventions, changes in medications and medical
appointments.
"Health notification." An agreement between a facility and a
resident or an agent of the resident to address the types of
health information, methods and frequency of communications
provided by the facility to the resident or agent of the
resident regarding the health of the resident.
"Infectious disease." A contagious disease that is caused by
a microorganism, such as a bacterium, virus or protozoan, which
is not normally found in the human body and which is capable of
causing infection in humans.
"Long-term care facility. Any of the following:
(1) A long-term care nursing facility as defined in
section 802.1 of the Health Care Facilities Act.
(2) A personal care home as defined in section 1001 of
the Human Services Code.
(3) An assisted living residence as defined in section
1001 of the Human Services Code.
"POLST." A physician order for life-sustaining treatment in
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which one or more medical orders are issued for the care of an
individual regarding cardiopulmonary resuscitation or other
medical interventions that are entered into agreement with the
voluntary consent of the individual or surrogate decision maker
and a health care practitioner.
"Public health emergency." A declaration of disaster
emergency in accordance with 35 Pa.C.S. Ch. 73 Subch. A
(relating to the Governor and disaster emergencies) of an
occurrence or imminent threat of a disease or condition of
critical public health importance or a declaration of disaster
emergency by a governing body of a political subdivision under
35 Pa.C.S. Ch. 75 (relating to local organizations and services)
of an occurrence or imminent threat of a disease within the
county that has the following characteristics:
(1) Is believed to be caused by any of the following:
(i) The emergence and spread of a novel or
previously controlled or eradicated infectious disease.
(ii) An infectious disease epidemic in this
Commonwealth or a pandemic.
(2) Poses a high probability of any of the following in
the affected population:
(i) Death.
(ii) Serious or long-term disability.
(iii) Widespread exposure to an infectious disease,
which poses a significant risk of substantial present or
future harm to health and safety.
"Relative of a resident." An individual who:
(1) is related to a resident;
(2) has assisted the resident in the admission into or
the receipt of services from a facility; and
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(3) does not have a power of attorney or health care
power of attorney for the resident in accordance with 20
Pa.C.S. Chs. 54 and 56.
"Resident." A resident of a facility or a recipient of
services provided by a facility.
Section 3. Health notification protocols.
(a) Contents.--Within 30 days of the effective date of this
section, the appropriate State licensing department of a
facility shall establish protocols that provide for the
following:
(1) Requirements for the facility to:
(i) Communicate with a resident and an agent of the
resident within 72 hours of the declaration of a public
health emergency or a facility outbreak to:
(A) Review the current health notification
agreement and any current do-not-resuscitate order or
POLST for the resident.
(B) Inform the resident and agent of the
resident of additional health notifications that are
available for providing information regarding the
resident's health to the agent of the resident.
(C) Inform the resident and agent of the
resident of the option to change the do-not-
resuscitate order or POLST for the resident and the
risks involved with the available options.
(D) Notify the agent of the resident in the
event of a change in the resident's health status
within 24 hours of the health status change.
(ii) Make revisions to the following:
(A) The health notification agreement in
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accordance with the selections made by a resident or
an agent of the resident under paragraph (2).
(B) The do-not-resuscitate order or POLST in
accordance with the decisions made by a resident or
an agent of the resident under paragraph (2).
(iii) Communicate with a resident and a relative of
a resident within 72 hours of the declaration of a public
health emergency or a facility outbreak to:
(A) Provide information regarding powers of
attorney and health care powers of attorney under 20
Pa.C.S. Chs. 54 (relating to health care) and 56
(relating to powers of attorney).
(B) Encourage the resident and relative of the
resident to consider using a power of attorney or
health care power of attorney.
(iv) Communicate with the resident, agent of the
resident and all staff working within the facility
regarding how the facility plans to implement the safety
guidelines offered by the Centers for Disease Control and
Prevention, the department and any executive order
offered by the Governor through all stages of the public
health emergency. Information, including, but not limited
to, staff-to-resident ratios, mitigation efforts utilized
and compliance with the safety protocols adopted by the
facility shall be published on the facility's publicly
accessible Internet website.
(2) The ability of a resident or an agent of the
resident to:
(i) Select additional or remove existing health
notifications under the health notification agreement.
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(ii) Make changes to the do-not-resuscitate order or
POLST.
(b) Collaboration.--Each State licensing department of a
facility shall collaborate to establish uniform protocols to the
extent feasible.
(c) Fines.--Each State licensing department of a facility
shall establish an administrative fine of up to $500 for each
instance of noncompliance with the provisions of this section.
(d) Compliance with other laws.--The protocols under this
section shall comply with all applicable Federal and State
health information privacy laws.
Section 4. Facilities with positive COVID-19 test results.
Within 30 days of the effective date of this section, the
department shall develop guidelines or revise current guidelines
to provide for all of the following:
(1) The safety and protection from COVID-19 of residents
and staff of a facility that is not subject to the measures
for the safety and protection of residents and staff in long-
term care facilities from COVID-19 as contained in the
guidance issued prior to the effective date of this section
by the Centers for Disease Control and Prevention and the
department. The guidelines under this paragraph shall
incorporate the measures to increase compliance addressed
under paragraph (2) for facilities that have one or more
confirmed positive or presumed positive tests of COVID-19.
(2) Measures to increase compliance with the guidance
issued prior to the effective date of this section by the
Centers for Disease Control and Prevention and the department
for the safety and protection of residents and staff in long-
term care facilities from COVID-19 for facilities that have
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one or more residents or long-term care facility staff that
have confirmed positive or presumed positive tests of COVID-
19.
Section 5. Essential workforce and employee protections.
(a) Essential employee.--A direct care worker who is an
employee of a facility or a contracted professional shall be
considered an essential employee of the facility unless the
services or treatment provided by the individual can be
delivered through an alternative method that yields the same
quality of care to a resident of the facility.
(b) Retaliation prohibited.--An employee or contracted
professional working within a facility shall not be subject to
retaliation after reporting a facility for noncompliance with
this act or the guidelines issued by the Centers for Disease
Control and Prevention or the department.
Section 6. Inspections, assessments and audits.
(a) Duties.--Notwithstanding any provision of law, during a
public health emergency or a facility outbreak, the appropriate
State licensing department of a facility:
(1) Shall conduct regular in-person inspections of the
facility for compliance with guidelines from the Centers for
Disease Control and Prevention and the department for the
safety and protection of residents and staff in the facility.
(2) Shall conduct an inspection of the facility upon
receipt of a complaint from a resident, an agent of the
resident, a relative of the resident or a member of the
facility staff that the facility is not complying with the
guidance from the Centers for Disease Control and Prevention
and the department for the protection of residents and staff
in the facility and to further address additional safety
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measures following the occurrence of positive or presumed
positive test results in the facility. The inspection shall
address the subject matter of the complaint.
(3) May conduct in-person spot assessments of the
facility to ensure compliance with the guidance from the
Centers for Disease Control and Prevention and the department
for the protection of residents and staff in the facility and
to further address additional safety measures following the
occurrence of positive or presumed positive test results in
the facility.
(4) May not waive the inspections or in-person spot
assessments of the facility under this subsection.
(b) Audit.--The Office of Auditor General shall regularly
audit the records of the department during a public health
emergency or facility outbreak to ensure the accurate and timely
dissemination of public information reported to the department
by facilities in compliance with the guidance from the Centers
for Disease Control and Prevention and the department for the
protection of people in a facility regarding an infectious
disease that is the subject of a public health emergency or a
facility outbreak. The following shall apply:
(1) The audit must also include thorough investigation
of the manner in which any Federal or State appropriation
made available after the declaration of a public health
emergency is utilized in the facility, to ensure that aid is
directly used for mitigation efforts, supplies and workforce
payroll to protect both employees and residents and ensure
safe staff-to-resident ratios in accordance with 28 Pa. Code
§ 211.12 (relating to nursing services).
(2) The findings of the audit shall be made available on
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the publicly accessible Internet website of the facility and
updated as necessary.
Section 7. Appropriation.
The General Assembly shall appropriate any additional funding
necessary from the General Fund to the department to carry out
the requirements of this act.
Section 8. Effective date.
This act shall take effect immediately.
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