S-5048

   Amend Senate File 2423 as follows:
   1.  By striking everything after the enacting clause and inserting:
   <Section 1.  NEW SECTION.  144H.1  Definitions.
   For purposes of this chapter, unless the context otherwise requires:
   1.  “Able to consent” means a patient is willing and able to communicate a decision independently or with appropriate services, technological assistance, support decision making, or other reasonable accommodation and is able to understand the nature and consequences of the decision, including the primary risks and benefits of a decision.
   2.  “Authorized representative” means any of the following:
   a.  An agent as that term is defined in section 633B.102.
   b.  An attorney in fact as that term is defined in section 144B.1.
   c.  A conservator as that term is defined in section 633B.102.
   d.  A guardian as that term is defined in section 633B.102.
   e.  A public guardian as that term is defined in chapter 231E.
   3.  “Care facility” means a facility that provides a patient with health-related and personal care services, including any of the following:
   a.  A hospital.
   b.  A medical clinic.
   c.  A nursing facility.
   d.  A rehabilitation facility as that term is defined in section 135C.1.
   e.  A residential care facility as that term is defined in section 135C.1.
   4.  “Department” means the department of health and human services.
   5.  “Patient” means an adult who is receiving health-related or personal care services from a care facility.
   6.  “Person authorized to consent” means a member of any of the following groups of individuals, in order of priority, who is willing and able to consent, refuse to consent, or withdraw consent on a patient’s behalf:
   a.  The patient’s spouse.
   b.  An adult child of the patient or, if the patient has more than one adult child, the decision agreed to by half or more of the adult children reasonably available for consultation with the patient’s physician.
   c.  A parent or parents of a patient, if one or both parents are reasonably available for consultation with the patient’s physician.
   d.  An adult sibling of the patient or, if the patient has more than one adult sibling, the decision agreed to by half or more of the adult siblings who are reasonably available for consultation with the patient’s physician.
   7.  “Placement” means the admission, discharge, or transfer of a patient.
   8.  “Public assistance program” means a state or federally funded program including but not limited to:
   a.  The Medicaid program as that term is defined in section 249A.2.
   b.  Medicare pursuant to the federal government health insurance program established under Tit. XVIII of the Social Security Act.
   c.  A medical benefits package pursuant to 38 C.F.R. §17.38.
   Sec. 2.  NEW SECTION.  144H.2  Inability to consent —— certification.
   Upon examination of a patient, a physician licensed under chapter 148 may certify in the patient’s medical records that in the professional opinion of the physician all of the following are true:
   1.  The patient is not able to consent.
   2.  Despite good-faith efforts, an authorized representative for the patient has not been located by the physician.
   3.  It is in the patient’s best interests to be discharged from the patient’s current care facility and to be transferred or admitted to a care facility recommended by the physician.
   Sec. 3.  NEW SECTION.  144H.3  Person authorized to consent —— powers and duties.
   1.  Upon a physician’s certification pursuant to section 144H.2, a person authorized to consent is authorized to do any of the following:
   a.  Make decisions regarding the patient’s care facility placement.
   b.  Assist the patient in applying for health insurance coverage through a private insurer, or applying for a public assistance program, as necessary to facilitate the patient’s care facility placement.
   c.  Take any other action expressly authorized by the patient.
   2.  A person authorized to consent shall act in good faith and must consider all of the following:
   a.  The patient’s wishes, if known.
   b.  The patient’s rights.
   c.  The best interests of the patient.
   3.  A person authorized to consent may, as reasonably necessary to assist the patient in applying for health insurance coverage through a private insurer, or applying for a public assistance program, do any of the following:
   a.  Access the patient’s banking and other financial records as permitted by state and federal law. This paragraph shall not be construed to permit the person authorized to consent to own, manage, use, or dispose of any of the patient’s financial resources without the patient’s express consent.
   b.  Disclose the patient’s relevant health information to a third party. The person authorized to consent shall not disclose a patient’s protected health information in violation of the federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191.
   4.  The authority of a person authorized to consent shall expire upon the earliest of any of the following:
   a.  The date that the patient’s care facility placement as decided by the person authorized to consent is completed, and notice of approval or denial of an application for health insurance coverage through a private insurer, or for a public assistance program, if applicable, is received by a qualified employee of the receiving care facility.
   b.  An authorized representative, or a person authorized to consent who has higher priority, has been located.
   Sec. 4.  NEW SECTION.  144H.4  Care facility —— duties.
   1.  A social worker, discharge planner, or other qualified employee as designated by a patient’s current care facility shall do all of the following with respect to a person authorized to consent:
   a.  Inform the person of the person’s powers and duties pursuant to this chapter.
   b.  Assist the person with identifying a receiving care facility for the patient that can provide the appropriate level of care, as recommended by the physician under section 144H.2, to the patient in the least restrictive environment and consented to by a social worker, intake coordinator, or other qualified employee of the receiving care facility.
   2.  If a receiving care facility as described in subsection 1 is identified, and the receiving care facility consents to the transfer, the patient shall be transferred to the receiving care facility.
   Sec. 5.  NEW SECTION.  144H.5  Petition for court order.
   1.  After good-faith efforts to locate an authorized representative for the patient or a person authorized to consent, a care facility or attending physician may petition a court of competent jurisdiction to order any of the following:
   a.  The patient’s care facility placement.
   b.  The patient’s attending physician or a social worker, intake worker, or other qualified employee of the receiving care facility to assist the patient to apply for health insurance coverage through a private insurer or apply for a public assistance program, if appropriate.
   2.  The petition made must include the following information:
   a.  The name, age, and address where the patient resides, if known to the petitioner.
   b.  The name, address, and county of residence of the petitioner.
   c.  The relationship of the petitioner to the patient.
   d.  The address where the patient can be found, if different from the patient’s residential address.
   e.  A physician’s certification pursuant to section 144H.2.
   f.  An affidavit from the patient’s attending physician, that upon an examination of the patient and consultation with another health care provider, all of the following are true:
   (1)  The patient is not able to consent.
   (2)  The patient has not identified, and despite good-faith efforts the attending physician has been unable to locate, an authorized representative or a person authorized to consent.
   (3)  The receiving care facility placement recommended by the attending physician is in the patient’s best interests.
   (4)  The receiving care facility placement recommended by the attending physician will provide the most appropriate level of care to the patient in the least restrictive environment, and is within a reasonable proximity to the patient’s residence, if applicable.
   g.  An affidavit from a social worker, discharge planner, or other qualified employee as designated by the patient’s current care facility attesting to all of the following:
   (1)  The patient has not identified, and despite good-faith efforts the current care facility has been unable to locate, an authorized representative or a person authorized to consent.
   (2)  The receiving care facility placement recommended by the patient’s attending physician will provide the most appropriate level of care to the patient in the least restrictive environment.
   (3)  Other care facilities within a reasonable proximity to the patient’s residence were considered for placement, if applicable.
   h.  An affidavit from a social worker, intake coordinator, or other qualified employee of the receiving care facility recommended by the patient’s attending physician attesting to all of the following:
   (1)  The receiving care facility is an appropriate facility available for the patient.
   (2)  The receiving care facility can provide the most appropriate level of care to the patient in the least restrictive environment.
   (3)  The receiving care facility consents to the transfer or admission of the patient.
   i.  The name and address of the receiving care facility recommended by the attending physician.
   3.  The court may grant the petition if the court finds all of the following:
   a.  The patient is not able to consent.
   b.  Despite good-faith efforts by the attending physician and the patient’s current care facility, an authorized representative or person authorized to consent has not been located.
   c.  Placement in the receiving care facility recommended by the patient’s attending physician is in the patient’s best interest.
   d.  Placement in the receiving care facility recommended by the patient’s attending physician will provide the most appropriate level of care to the patient in the least restrictive environment.
   e.  A social worker, intake coordinator, or other qualified employee of the receiving care facility recommended by the patient’s attending physician has consented to the admission of the patient.
   4.  If the court grants the petition under subsection 3, the court shall also order, if necessary, that a qualified employee of the receiving care facility has the authority to apply for a public assistance program on the patient’s behalf.
   5.  An order authorizing placement pursuant to this section shall remain in effect until the earliest of any of the following:
   a.  A date specified by the court not to exceed thirty calendar days from the date of issuance of the order.
   b.  The date the patient’s placement in the receiving care facility as ordered by the court is completed.
   c.  The date an attending physician certifies that the patient is able to consent to the patient’s placement in the receiving care facility.
   6.  An order authorizing a qualified employee of a receiving facility to apply for a public assistance program on a patient’s behalf pursuant to this section shall remain in effect until the earliest of any of the following:
   a.  A date specified by the court.
   b.  Notice of approval or denial of an application for health insurance coverage through a private insurer, or for a public assistance program is received by a qualified employee of the receiving facility.
   c.  The date that an attending physician certifies that the patient is able to consent to the application for a public assistance program.
   Sec. 6.  NEW SECTION.  144H.6  Immunity —— liability and professional discipline.
   1.  A person or care facility acting in good faith pursuant to this chapter shall not be subject to civil or criminal liability.
   2.  A licensee under chapter 148 acting reasonably and in good faith pursuant to this chapter shall not be subject to licensee discipline.
   Sec. 7.  NEW SECTION.  144H.7  Construction.
   This chapter shall not be construed to do any of the following:
   1.  Require a care facility to accept the transfer or admission of a patient.
   2.  Repeal, abrogate, or impair the operation of any other federal or state laws governing the transfer, admission, or discharge of a patient to or from a care facility.
   3.  Infringe upon the rights of a patient under federal or state law relating to the involuntary transfer, admission, or discharge to or from a care facility.
   Sec. 8.  NEW SECTION.  144H.8  Rules.
   The department may promulgate rules pursuant to chapter 17A as necessary to administer this chapter.>

______________________________
MARK COSTELLO