SENT VIA EMAIL (regulatorycomment@vdh.virginia.gov)

March 29, 2021

Rebekah E. Allen

Senior Policy Analyst

Virginia Department of Health

9960 Mayland Drive, Ste. 401

Richmond, Virginia 23233

Re: Designated Support Person Implementation Guidance Document (OLC-3002-G) Public Comment

Dear Ms. Allen,

Virginia Hospital & Healthcare Association (“VHHA”) appreciates the opportunity to submit comments to the Virginia Department of Health in response to the Guidance Document OLC-3002-G titled Designated Support Person Implementation (the “Guidance Document”).  The stated purpose of the Guidance Document is to provide guidance on implementation of the designated support person (“DSP”) requirement for general hospitals, outpatient surgical hospitals, and hospice facilities as established by Item 300(F) of Chapter 56 (2020 Acts of Assembly, Special Session I) (the “Budget Item”).

VHHA has 26 member health systems, representing 110 community, psychiatric, rehabilitation, and specialty hospitals throughout Virginia.  VHHA and its members encourage the participation of family members and caregivers in patient care.  Under normal operating conditions, there are broad visitation policies available to patients with limited exceptions; however, there are circumstances (for example where there is a declared public health emergency due to a communicable disease of public health threat, such as COVID-19) under which it may be necessary to modify that access in order to protect the health and safety of patients, family and caregivers, and staff.  It is in keeping with these two primary goals of providing access to patients and protecting health and safety that we are respectfully submitting these comments on the Guidance Document.  Enclosed is a copy of the Guidance Document with our suggested revisions included.

5.1 What Constitutes a Person with a Disability

We are suggesting revisions to this section to clarify that status as a patient and admission to a hospital is not a sufficient basis for establishing a disability for purposes of the Guidance Document and Budget Item and that any support or assistance would be such that it is necessary as a result of the person’s disability. 

We are also proposing to eliminate the sentence “Until an acceptable assessment has been conducted, or the allowable documentation is provided, patients should be allowed to access their DSP.”  The effect of this language is to shift the entire burden of proof to the licensed entity.  If this provision is maintained, it would allow every patient to claim disability as a means of circumventing reasonable visitation policies, requiring licensed entities to conduct an assessment as necessary to disprove it.  We believe this goes beyond the intent of the Budget Item and imposes an unfair burden on licensed entities.  We have proposed alternative language intended to strike an appropriate balance and create responsibility for both patients and licensed entities to be flexible and accommodating.

5.1.2 Observation Planning

We are suggesting a revision to this section to clarify that for urgent or emergent care, explanation of procedures that the DSP may be required to follow would be provided as soon as practicable.  Depending upon the circumstances, it may not be possible to provide such explanation at initial intake for urgent and emergent care. 

5.2.1 Screening for Communicable Diseases

As written, this section appears to make DSP demonstration of compliance with Centers for Disease Control and Prevention (CDC) guidelines for communicable diseases (such as recommended quarantine periods) optional or permissive.  This is inconsistent with the remainder of the section, which provides the licensed entity the ability to deny entry or take other steps to mitigate risk where a DSP is reasonably suspected or confirmed to have been exposed to, or testing positive for, any communicable disease.  Similarly, the end of the last sentence of this section, which states, “a DSP’s refusal to be tested for a communicable disease is not grounds to refuse entry onto the premises,” conflicts with the first part of the sentence providing a licensed entity the right to refuse entry.  We have suggested revisions to address these two concerns.

5.2.2 Infection Control Practices

As written, this section appears to allow requiring a DSP to provide their own face mask or facial covering that meets CDC guidelines, but at the same time includes the conflicting provision to require the licensed entity to provide one if the DSP does not have an acceptable face mask.  The section further states that the DSP or patient should not be charged for PPE supplied to the DSP.  This could be construed to interfere with the ability of licensed entities to allocate and charge costs of PPE and other supplies used in treatment of the patient.  The costs of such PPE or other supplies should be able to be allocated and charged to the patient along with all other PPE or other supplies used by staff involved in treating the patient in accordance with the licensed entity’s standard practices for charging supplies.  This would not result in a separate charge to a DSP for PPE or other supplies required for use.  We have suggested revisions to address these concerns.

5.2.3 COVID-19 Positive or Presumptively Positive Patients

Depending upon the circumstances, it may be insufficient to merely “encourage” reasonable alternatives and it may be necessary to restrict physical access to the patient.  We believe this ability must be preserved in order to protect the health and safety of patients, DSPs, and staff.  We have suggested revisions to address this concern.

Thank you for your consideration of these requests and we appreciate this opportunity to submit public comment on these proposed regulations.  

                                                                        Sincerely,

                                                                        R. Brent Rawlings

                                                                        Senior Vice President & General Counsel