House File 532 H-1084 Amend House File 532 as follows: 1 1. By striking everything after the enacting clause 2 and inserting: 3 < Section 1. NEW SECTION . 135P.1 Definitions. 4 For the purposes of this chapter, unless the context 5 otherwise requires: 6 1. “Adverse health care incident” means an objective 7 and definable outcome arising from or related to 8 patient care that results in the death or serious 9 physical injury of a patient. 10 2. “Health care provider” means a physician licensed 11 under chapter 148, a physician assistant licensed under 12 chapter 148C, a podiatrist licensed under chapter 149, 13 or an advanced registered nurse practitioner licensed 14 pursuant to chapter 152 or 152E. 15 3. “Health facility” means an institutional health 16 facility as defined in section 135.61, hospice licensed 17 under chapter 135J, home health agency as defined in 18 section 144D.1, assisted living program certified under 19 chapter 231C, clinic, or community health center, and 20 includes any corporation, professional corporation, 21 partnership, limited liability company, limited 22 liability partnership, or other entity comprised of 23 such health facilities. 24 4. “Open discussion” means all communications 25 that are made under section 135P.3, and includes 26 all memoranda, work products, documents, and other 27 materials that are prepared for or submitted in the 28 course of or in connection with communications under 29 section 135P.3. 30 5. “Patient” means a person who receives medical 31 care from a health care provider, or if the person is a 32 minor, deceased, or incapacitated, the person’s legal 33 representative. 34 Sec. 2. NEW SECTION . 135P.2 Confidentiality of 35 open discussions. 36 1. Open discussion communications and offers of 37 compensation made under section 135P.3: 38 a. Do not constitute an admission of liability. 39 b. Are privileged, confidential, and shall not be 40 disclosed. 41 c. Are not admissible as evidence in any subsequent 42 judicial, administrative, or arbitration proceeding 43 and are not subject to discovery, subpoena, or other 44 means of legal compulsion for release and shall not 45 be disclosed by any party in any subsequent judicial, 46 administrative, or arbitration proceeding. 47 2. Communications, memoranda, work products, 48 documents, and other materials, otherwise subject to 49 discovery, that were not prepared specifically for 50 -1- HF532.925 (2) 86 (amending this HF 532 to CONFORM to SF 426) jh/rj 1/ 4 #1.

use in a discussion under section 135P.3, are not 1 confidential. 2 3. The limitation on disclosure imposed by this 3 section includes disclosure during any discovery 4 conducted as part of a subsequent adjudicatory 5 proceeding, and a court or other adjudicatory body 6 shall not compel any person who engages in an open 7 discussion under this chapter to disclose confidential 8 communications or agreements made under section 135P.3. 9 4. This section does not affect any other 10 law, regulation, or requirement with respect to 11 confidentiality. 12 Sec. 3. NEW SECTION . 135P.3 Engaging in an open 13 discussion. 14 1. If an adverse health care incident occurs in 15 a health facility, the health care provider, or the 16 health care provider jointly with the health facility, 17 may provide the patient with written notice of the 18 desire of the health care provider, or of the health 19 care provider jointly with the health facility, to 20 enter into an open discussion under this chapter. If 21 the health care provider or health facility provides 22 such notice, such notice must be sent within one 23 hundred eighty days after the date on which the health 24 care provider knew, or through the use of diligence 25 should have known, of the adverse health care incident. 26 The notice must include all of the following: 27 a. Notice of the desire of the health care 28 provider, or of the health care provider jointly with 29 the health facility, to proceed with an open discussion 30 under this chapter. 31 b. Notice of the patient’s right to receive a copy 32 of the medical records related to the adverse health 33 care incident and of the patient’s right to authorize 34 the release of the patient’s medical records related to 35 the adverse health care incident to any third party. 36 c. Notice of the patient’s right to seek legal 37 counsel. 38 d. A copy of section 614.1, subsection 9, and 39 notice that the time for a patient to bring a lawsuit 40 is limited under section 614.1, subsection 9, and will 41 not be extended by engaging in an open discussion under 42 this chapter unless all parties agree to an extension 43 in writing. 44 e. Notice that if the patient chooses to engage 45 in an open discussion with the health care provider 46 or health facility, that all communications made in 47 the course of such a discussion under this chapter, 48 including communications regarding the initiation of an 49 open discussion, are privileged and confidential, are 50 -2- HF532.925 (2) 86 (amending this HF 532 to CONFORM to SF 426) jh/rj 2/ 4

not subject to discovery, subpoena, or other means of 1 legal compulsion for release, and are not admissible in 2 evidence in a judicial, administrative, or arbitration 3 proceeding. 4 2. If the patient agrees in writing to engage in 5 an open discussion, the patient, health care provider, 6 or health facility engaged in an open discussion 7 under this chapter may include other persons in the 8 open discussion. All additional parties shall also 9 be advised in writing prior to the discussion that 10 discussions are privileged and confidential, are not 11 subject to discovery, subpoena, or other means of legal 12 compulsion for release, and are not admissible in 13 evidence in a judicial, administrative, or arbitration 14 proceeding. The advice in writing must indicate that 15 communications, memoranda, work products, documents, 16 and other materials, otherwise subject to discovery, 17 that were not prepared specifically for use in a 18 discussion under this section, are not confidential. 19 3. The health care provider or health facility that 20 agrees to engage in an open discussion may do all of 21 the following: 22 a. Investigate how the adverse health care incident 23 occurred and gather information regarding the medical 24 care or treatment provided. 25 b. Disclose the results of the investigation to the 26 patient. 27 c. Openly communicate to the patient the steps the 28 health care provider or health facility will take to 29 prevent future occurrences of the adverse health care 30 incident. 31 d. Determine either of the following: 32 (1) That no offer of compensation for the 33 adverse health care incident is warranted and orally 34 communicates that determination to the patient. 35 (2) That an offer of compensation for the adverse 36 health care incident is warranted and extends such an 37 offer in writing to the patient. 38 4. If a health care provider or health facility 39 makes an offer of compensation under subsection 3 and 40 the patient is not represented by legal counsel, the 41 health care provider or health facility shall advise 42 the patient of the patient’s right to seek legal 43 counsel regarding the offer of compensation. 44 5. Except for offers of compensation under 45 subsection 3, discussions between the health care 46 provider or health facility and the patient about the 47 compensation offered under subsection 3 shall remain 48 oral. 49 Sec. 4. NEW SECTION . 135P.4 Payment and 50 -3- HF532.925 (2) 86 (amending this HF 532 to CONFORM to SF 426) jh/rj 3/ 4

resolution. 1 1. A payment made to a patient pursuant to section 2 135P.3 is not a payment resulting from any of the 3 following: 4 a. A written claim or demand for payment. 5 b. A claim for purposes of section 272C.9. 6 c. A claim for purposes of section 505.27. 7 2. A health care provider or health facility may 8 require the patient, as a condition of an offer of 9 compensation under section 135P.3, to execute all 10 documents and obtain any necessary court approval to 11 resolve an adverse health care incident. The parties 12 shall negotiate the form of such documents or obtain 13 court approval as necessary. > 14 2. Title page, by striking lines 1 through 3 and 15 inserting < An Act relating to privileged communications 16 between a health care provider or health facility and a 17 patient following an adverse health care incident. > 18 ______________________________ KAUFMANN of Cedar -4- HF532.925 (2) 86 (amending this HF 532 to CONFORM to SF 426) jh/rj 4/ 4 #2.