House File 231 - Introduced HOUSE FILE 231 BY OURTH , WOLFE , KOESTER , BAUDLER , LYKAM , BERRY , H. MILLER , STAED , KRESSIG , HANSON , JONES , WILLS , KLEIN , BYRNES , GRASSLEY , FINKENAUER , HEARTSILL , MOMMSEN , BROWN-POWERS , GAINES , MAXWELL , BENNETT , CARLSON , HUNTER , ABDUL-SAMAD , PRICHARD , HEDDENS , STECKMAN , RUNNING-MARQUARDT , FORBES , GUSTAFSON , HALL , DAWSON , COHOON , SMITH , DUNKEL , KEARNS , BEARINGER , RUFF , GASKILL , and STUTSMAN A BILL FOR An Act relating to confidential communications between an 1 emergency medical care provider and a patient. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 1431YH (4) 86 jh/nh

H.F. 231 Section 1. Section 232.96, subsection 5, Code 2015, is 1 amended by striking the subsection and inserting in lieu 2 thereof the following: 3 5. Sections 622.9 and 622.10 and any other statute or rule 4 of evidence which excludes or makes privileged the testimony 5 of a husband or wife against the other or the testimony of 6 a health practitioner or mental health professional as to 7 confidential communications do not apply to evidence at an 8 adjudicatory hearing. 9 Sec. 2. Section 622.10, subsections 1, 2, 3, and 5, Code 10 2015, are amended to read as follows: 11 1. A practicing attorney, counselor, physician, surgeon, 12 physician assistant, advanced registered nurse practitioner 13 health practitioner , mental health professional, or the 14 stenographer or confidential clerk of any such person, who 15 obtains information by reason of the person’s employment, 16 or a member of the clergy shall not be allowed, in giving 17 testimony, to disclose any confidential communication properly 18 entrusted to the person in the person’s professional capacity, 19 and necessary and proper to enable the person to discharge the 20 functions of the person’s office according to the usual course 21 of practice or discipline. 22 2. The prohibition does not apply to cases where the 23 person in whose favor the prohibition is made waives the 24 rights conferred; nor does the prohibition apply to physicians 25 or surgeons, physician assistants, advanced registered 26 nurse practitioners health practitioners , mental health 27 professionals, or to the stenographer or confidential clerk 28 of any physicians or surgeons, physician assistants, advanced 29 registered nurse practitioners, or mental health professionals 30 such person , in a civil action in which the condition of the 31 person in whose favor the prohibition is made is an element 32 or factor of the claim or defense of the person or of any 33 party claiming through or under the person. The evidence is 34 admissible upon trial of the action only as it relates to the 35 -1- LSB 1431YH (4) 86 jh/nh 1/ 6

H.F. 231 condition alleged. 1 3. a. In a civil action in which the condition of the 2 plaintiff in whose favor the prohibition is made is an element 3 or factor of the claim or defense of the adverse party or of 4 any party claiming through or under the adverse party, the 5 adverse party shall make a written request for records relating 6 to the condition alleged upon the plaintiff’s attorney for a 7 legally sufficient patient’s waiver under federal and state 8 law. Upon receipt of a written request, the plaintiff shall 9 execute a legally sufficient patient’s waiver and release it 10 to the adverse party making the request within sixty days of 11 receipt of the written request. The patient’s waiver may 12 require a physician or surgeon, physician assistant, advanced 13 registered nurse practitioner, health practitioner or mental 14 health professional to do all of the following: 15 (1) Provide a complete copy of the patient’s records 16 including but not limited to any reports or diagnostic imaging 17 relating to the condition alleged. 18 (2) Consult with the attorney for the adverse party prior 19 to providing testimony regarding the plaintiff’s medical 20 history and the condition alleged and opinions regarding health 21 etiology and prognosis for the condition alleged subject to the 22 limitations in paragraphs “c” and “e” . 23 b. If a plaintiff fails to sign a waiver within the 24 prescribed time period, the court may order disclosure or 25 compliance. The failure of a party to comply with the court’s 26 order may be grounds for dismissal of the action or any other 27 relief authorized under the rules of civil procedure. 28 c. Any physician or surgeon, physician assistant, advanced 29 registered nurse practitioner, health practitioner or mental 30 health professional who provides records, provides information 31 during consultation, or otherwise responds in good faith to a 32 request pursuant to paragraph “a” shall be immune with respect 33 to all civil or criminal penalties, claims, or actions of any 34 kind with respect to this section . 35 -2- LSB 1431YH (4) 86 jh/nh 2/ 6

H.F. 231 d. Any physician or surgeon, physician assistant, advanced 1 registered nurse practitioner, health practitioner or mental 2 health professional who provides records or consults with the 3 attorney for any party shall be entitled to charge a reasonable 4 fee for production of the records, diagnostic imaging, 5 and consultation. Any party seeking consultation shall be 6 responsible for payment of all charges. The fees for copies of 7 any records shall be as specified in subsection 6 . 8 e. Defendant’s The defendant’s counsel shall provide 9 a written notice to the plaintiff’s attorney in a manner 10 consistent with the Iowa rules of civil procedure providing for 11 notice of deposition at least ten days prior to any meeting 12 with the plaintiff’s physician or surgeon, physician assistant, 13 advanced registered nurse practitioner, health practitioner 14 or mental health professional. Plaintiff’s The plaintiff’s 15 attorney has the right to be present at all such meetings, or 16 participate in telephonic communication with the physician 17 or surgeon, physician assistant, advanced registered nurse 18 practitioner, health practitioner or mental health professional 19 and the attorney for the defendant. Prior to scheduling 20 any meeting or engaging in any communication with the 21 physician or surgeon, physician assistant, advanced registered 22 nurse practitioner, health practitioner or mental health 23 professional, the attorney for the defendant shall confer with 24 the plaintiff’s attorney to determine a mutually convenient 25 date and time for such meeting or telephonic communication. 26 Plaintiff’s The plaintiff’s attorney may seek a protective 27 order structuring all communication by making application to 28 the court at any time. 29 f. The provisions of this subsection do not apply to actions 30 or claims brought pursuant to chapter 85 , 85A , or 85B . 31 5. If an adverse party desires either to call as a 32 witness at the trial of the action or the oral deposition, 33 either discovery or evidentiary, of a physician or surgeon, 34 physician assistant, advanced registered nurse practitioner, 35 -3- LSB 1431YH (4) 86 jh/nh 3/ 6

H.F. 231 health practitioner or mental health professional to which 1 the prohibition would otherwise apply , or the stenographer 2 or confidential clerk of a physician or surgeon, physician 3 assistant, advanced registered nurse practitioner, or mental 4 health professional or desires to call a physician or surgeon, 5 physician assistant, advanced registered nurse practitioner, 6 or mental health professional to which the prohibition would 7 otherwise apply or the stenographer or confidential clerk of a 8 physician or surgeon, physician assistant, advanced registered 9 nurse practitioner, or mental health professional as a witness 10 at the trial of the action any such person , the adverse party 11 shall file an application with the court for permission to 12 do so. The court upon hearing, which shall not be ex parte, 13 shall grant permission unless the court finds that the evidence 14 sought does not relate to the condition alleged. At the 15 request of any party or at the request of the deponent, the 16 court shall fix a reasonable fee to be paid to a physician 17 or surgeon, physician assistant, advanced registered nurse 18 practitioner, health practitioner or mental health professional 19 by the party taking the deposition or calling the witness. 20 Sec. 3. Section 622.10, subsection 6, paragraph e, 21 subparagraph (2), Code 2015, is amended to read as follows: 22 (2) “Provider” means any physician or surgeon, physician 23 assistant, advanced registered nurse practitioner health 24 practitioner , mental health professional, hospital, nursing 25 home, or other person, entity, facility, or organization that 26 furnishes, bills, or is paid for health care in the normal 27 course of business. 28 Sec. 4. Section 622.10, subsection 7, Code 2015, is amended 29 to read as follows: 30 7. For the purposes of this section , “mental health 31 professional” : 32 a. “Emergency medical care provider” means the same as 33 defined in section 147A.1. 34 b. “Health practitioner” means a physician, surgeon, 35 -4- LSB 1431YH (4) 86 jh/nh 4/ 6

H.F. 231 physician assistant, advanced registered nurse practitioner, or 1 emergency medical care provider. 2 c. “Mental health professional” means a psychologist 3 licensed under chapter 154B , a registered nurse licensed under 4 chapter 152 , a social worker licensed under chapter 154C , a 5 marital and family therapist licensed under chapter 154D , a 6 mental health counselor licensed under chapter 154D , or an 7 individual holding at least a master’s degree in a related 8 field as deemed appropriate by the board of behavioral science. 9 EXPLANATION 10 The inclusion of this explanation does not constitute agreement with 11 the explanation’s substance by the members of the general assembly. 12 This bill amends Code section 622.10 to prohibit an 13 emergency medical care provider from disclosing confidential 14 information which a patient disclosed to the emergency 15 medical care provider in the emergency medical care provider’s 16 professional capacity. The privilege the bill creates between 17 a patient and an emergency medical care provider is identical 18 to the privilege that exists under current law between a 19 patient and a physician, surgeon, physician assistant, or 20 advanced registered nurse practitioner. 21 The bill defines “emergency medical care provider” as 22 the same as defined in Code section 147A.1, or an individual 23 trained to provide emergency and nonemergency medical care at 24 the emergency medical responder, emergency medical technician, 25 advanced emergency medical technician, paramedic, or other 26 certification levels adopted by rule by the department of 27 public health, who has been issued a certificate by the 28 department. 29 The bill provides several exceptions to the prohibition. 30 First, the patient may waive the prohibition. The prohibition 31 does not apply in a civil action in which the condition of 32 the patient is an element or factor of the claim or defense 33 of the patient. In a civil action in which the patient is a 34 plaintiff and the patient’s condition is an element or factor 35 -5- LSB 1431YH (4) 86 jh/nh 5/ 6

H.F. 231 of the claim or defense of the adverse party, the bill provides 1 the procedure by which the adverse party may request or compel 2 the disclosure of the confidential communication made by the 3 patient to the emergency medical care provider. 4 Pursuant to Code section 232.74, the privilege does not 5 apply to evidence regarding a child’s injuries or the cause of 6 such injuries in any judicial proceeding, civil or criminal, 7 which results from a report pursuant to Code chapter 232, 8 relating to juvenile justice. Finally, the privilege does not 9 apply in cases involving a petition which alleges that a child 10 is a child in need of assistance. 11 -6- LSB 1431YH (4) 86 jh/nh 6/ 6