Regular Session 2019-2020 Senate Bill 1270 P.N. 1915

PRINTER'S NO. 1915

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1270

Session of

2020

INTRODUCED BY MUTH, COLLETT, IOVINO, FONTANA, BREWSTER, COSTA,

SANTARSIERO, A. WILLIAMS, DINNIMAN AND SCHWANK,

SEPTEMBER 3, 2020

REFERRED TO HEALTH AND HUMAN SERVICES, SEPTEMBER 3, 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

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

of a novel or previously eradicated infectious disease.

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(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

which one or more medical orders are issued for the care of an

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individual regarding cardiopulmonary resuscitation or other

medical interventions that are entered into agreement with the

voluntary consent of the individual or surrogate decisionmaker

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

(3) does not have a power of attorney or health care

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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.

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

accordance with the selections made by a resident or

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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.

(ii) Make changes to the do-not-resuscitate order or

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POLST.

(b) Collaboration.--Each State licensing department of a

facility shall collaborate to establish uniform protocols to the

extent feasible.

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

one or more residents or long-term care facility staff that

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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

measures following the occurrence of positive or presumed

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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

the publicly accessible Internet website of the facility and

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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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