H.F. 2562 Section 1. NEW SECTION . 144H.1 Definitions. 1 For purposes of this chapter, unless the context otherwise 2 requires: 3 1. “Able to consent” means a patient is willing and able 4 to communicate a decision independently or with appropriate 5 services, technological assistance, support decision making, or 6 other reasonable accommodation and is able to understand the 7 nature and consequences of the decision, including the primary 8 risks and benefits of a decision. 9 2. “Authorized representative” means any of the following: 10 a. An agent as that term is defined in section 633B.102. 11 b. An attorney in fact as that term is defined in section 12 144B.1. 13 c. A conservator as that term is defined in section 14 633B.102. 15 d. A guardian as that term is defined in section 633B.102. 16 e. A public guardian as that term is defined in chapter 17 231E. 18 3. “Care facility” means a facility that provides a patient 19 with health-related and personal care services, including any 20 of the following: 21 a. A hospital. 22 b. A medical clinic. 23 c. A nursing facility. 24 d. A rehabilitation facility as that term is defined in 25 section 135C.1. 26 e. A residential care facility as that term is defined in 27 section 135C.1. 28 4. “Department” means the department of health and human 29 services. 30 5. “Patient” means an adult who is receiving health-related 31 or personal care services from a care facility. 32 6. “Person authorized to consent” means a member of any of 33 the following groups of individuals, in order of priority, who 34 is willing and able to consent, refuse to consent, or withdraw 35 -1- LSB 5341HV (2) 91 ak/ko 1/ 11

H.F. 2562 consent on a patient’s behalf: 1 a. The patient’s spouse. 2 b. An adult child of the patient or, if the patient has more 3 than one adult child, the decision agreed to by half or more of 4 the adult children reasonably available for consultation with 5 the patient’s physician. 6 c. A parent or parents of a patient, if one or both parents 7 are reasonably available for consultation with the patient’s 8 physician. 9 d. An adult sibling of the patient or, if the patient has 10 more than one adult sibling, the decision agreed to by half or 11 more of the adult siblings who are reasonably available for 12 consultation with the patient’s physician. 13 7. “Placement” means the admission, discharge, or transfer 14 of a patient. 15 8. “Public assistance program” means a state or federally 16 funded program including but not limited to: 17 a. The Medicaid program as that term is defined in section 18 249A.2. 19 b. Medicare pursuant to the federal government health 20 insurance program established under Tit. XVIII of the Social 21 Security Act. 22 c. A medical benefits package pursuant to 38 C.F.R. §17.38. 23 Sec. 2. NEW SECTION . 144H.2 Inability to consent —— 24 certification. 25 Upon examination of a patient, a physician licensed under 26 chapter 148 may certify in the patient’s medical records 27 that in the professional opinion of the physician all of the 28 following are true: 29 1. The patient is not able to consent. 30 2. Despite good-faith efforts, an authorized representative 31 for the patient has not been located by the physician. 32 3. It is in the patient’s best interests to be discharged 33 from the patient’s current care facility and to be transferred 34 or admitted to a care facility recommended by the physician. 35 -2- LSB 5341HV (2) 91 ak/ko 2/ 11

H.F. 2562 Sec. 3. NEW SECTION . 144H.3 Person authorized to consent —— 1 powers and duties. 2 1. Upon a physician’s certification pursuant to section 3 144H.2, a person authorized to consent is authorized to do any 4 of the following: 5 a. Make decisions regarding the patient’s care facility 6 placement. 7 b. Assist the patient in applying for health insurance 8 coverage through a private insurer, or applying for a public 9 assistance program, as necessary to facilitate the patient’s 10 care facility placement. 11 c. Take any other action expressly authorized by the 12 patient. 13 2. A person authorized to consent shall act in good faith 14 and must consider all of the following: 15 a. The patient’s wishes, if known. 16 b. The patient’s rights. 17 c. The best interests of the patient. 18 3. A person authorized to consent may, as reasonably 19 necessary to assist the patient in applying for health 20 insurance coverage through a private insurer, or applying for a 21 public assistance program, do any of the following: 22 a. Access the patient’s banking and other financial records 23 as permitted by state and federal law. This paragraph shall 24 not be construed to permit the person authorized to consent to 25 own, manage, use, or dispose of any of the patient’s financial 26 resources without the patient’s express consent. 27 b. Disclose the patient’s relevant health information to 28 a third party. The person authorized to consent shall not 29 disclose a patient’s protected health information in violation 30 of the federal Health Insurance Portability and Accountability 31 Act of 1996, Pub. L. No. 104-191. 32 4. The authority of a person authorized to consent shall 33 expire upon the earliest of any of the following: 34 a. The date that the patient’s care facility placement 35 -3- LSB 5341HV (2) 91 ak/ko 3/ 11

H.F. 2562 as decided by the person authorized to consent is completed, 1 and notice of approval or denial of an application for health 2 insurance coverage through a private insurer, or for a public 3 assistance program, if applicable, is received by a qualified 4 employee of the receiving care facility. 5 b. An authorized representative, or a person authorized to 6 consent who has higher priority, has been located. 7 Sec. 4. NEW SECTION . 144H.4 Care facility —— duties. 8 A social worker, discharge planner, or other qualified 9 employee as designated by a patient’s current care facility 10 shall do all of the following with respect to a person 11 authorized to consent: 12 1. Inform the person of the person’s powers and duties 13 pursuant to this chapter. 14 2. Assist the person with identifying a receiving care 15 facility for the patient that can provide the least restrictive 16 and appropriate level of care, as recommended by the physician 17 under section 144H.2, for the patient and consented to by a 18 social worker, intake coordinator, or other qualified employee 19 of the receiving care facility. 20 Sec. 5. NEW SECTION . 144H.5 Petition for court order. 21 1. After good-faith efforts to locate an authorized 22 representative for the patient or a person authorized to 23 consent, a care facility or attending physician may petition a 24 court of competent jurisdiction to order any of the following: 25 a. The patient’s care facility placement. 26 b. The patient’s attending physician or a social worker, 27 intake worker, or other qualified employee of the receiving 28 care facility to assist the patient to apply for health 29 insurance coverage through a private insurer or apply for a 30 public assistance program, if appropriate. 31 2. The petition made must include the following 32 information: 33 a. The name, age, and address where the patient resides, if 34 known to the petitioner. 35 -4- LSB 5341HV (2) 91 ak/ko 4/ 11

H.F. 2562 b. The name, address, and county of residence of the 1 petitioner. 2 c. The relationship of the petitioner to the patient. 3 d. The address where the patient can be found, if different 4 from the patient’s residential address. 5 e. A physician’s certification pursuant to section 144H.2. 6 f. An affidavit from the patient’s attending physician, 7 that upon an examination of the patient and consultation with 8 another health care provider, all of the following are true: 9 (1) The patient is not able to consent. 10 (2) The patient has not identified, and despite good-faith 11 efforts the attending physician has been unable to locate, an 12 authorized representative or a person authorized to consent. 13 (3) The receiving care facility placement recommended by 14 the attending physician is in the patient’s best interests. 15 (4) The receiving care facility placement recommended by 16 the attending physician will provide the least restrictive and 17 most appropriate level of care for the patient, and is within a 18 reasonable proximity to the patient’s residence, if applicable. 19 g. An affidavit from a social worker, discharge planner, or 20 other qualified employee as designated by the patient’s current 21 care facility attesting to all of the following: 22 (1) The patient has not identified, and despite good-faith 23 efforts the current care facility has been unable to locate, an 24 authorized representative or a person authorized to consent. 25 (2) The receiving care facility placement recommended by 26 the attending physician will provide the least restrictive and 27 most appropriate level of care for the patient. 28 (3) Other care facilities within a reasonable proximity 29 to the patient’s residence were considered for placement, if 30 applicable. 31 h. An affidavit from a social worker, intake coordinator, 32 or other qualified employee of the receiving care facility 33 recommended by the patient’s attending physician attesting to 34 all of the following: 35 -5- LSB 5341HV (2) 91 ak/ko 5/ 11

H.F. 2562 (1) The receiving care facility is the most appropriate 1 facility available for the patient. 2 (2) The receiving care facility can provide the least 3 restrictive and most appropriate level of care to the patient. 4 (3) The receiving care facility consents to the transfer or 5 admission of the patient. 6 i. The name and address of the receiving care facility 7 recommended by the attending physician. 8 3. The court may grant the petition if the court finds all 9 of the following: 10 a. The patient is not able to consent. 11 b. Despite good-faith efforts by the attending physician 12 and the patient’s current care facility, an authorized 13 representative or person authorized to consent has not been 14 located. 15 c. Placement in the receiving care facility recommended 16 by the patient’s attending physician is in the patient’s best 17 interest. 18 d. Placement in the receiving care facility recommended 19 by the patient’s attending physician will provide the least 20 restrictive and most appropriate level of care for the patient. 21 e. A social worker, intake coordinator, or other qualified 22 employee of the receiving care facility recommended by the 23 patient’s attending physician has consented to the admission 24 of the patient. 25 4. If the court grants the petition under subsection 3, the 26 court shall also order, if necessary, that a qualified employee 27 of the receiving care facility has the authority to apply for a 28 public assistance program on the patient’s behalf. 29 5. An order authorizing placement pursuant to this section 30 shall remain in effect until the earliest of any of the 31 following: 32 a. A date specified by the court not to exceed thirty 33 calendar days from the date of issuance of the order. 34 b. The date the patient’s placement in the receiving care 35 -6- LSB 5341HV (2) 91 ak/ko 6/ 11

H.F. 2562 facility as ordered by the court is completed. 1 c. The date an attending physician certifies that the 2 patient is able to consent to the patient’s placement in the 3 receiving care facility. 4 6. An order authorizing a qualified employee of a receiving 5 facility to apply for a public assistance program on a 6 patient’s behalf pursuant to this section shall remain in 7 effect until the earliest of any of the following: 8 a. A date specified by the court. 9 b. Notice of approval or denial of an application for health 10 insurance coverage through a private insurer, or for a public 11 assistance program is received by a qualified employee of the 12 receiving facility. 13 c. The date that an attending physician certifies that the 14 patient is able to consent to the application for a public 15 assistance program. 16 Sec. 6. NEW SECTION . 144H.6 Immunity —— liability and 17 professional discipline. 18 1. A person or care facility acting in good faith pursuant 19 to this chapter shall not be subject to civil or criminal 20 liability. 21 2. A licensee under chapter 148 acting reasonably and in 22 good faith pursuant to this chapter shall not be subject to 23 licensee discipline. 24 Sec. 7. NEW SECTION . 144H.7 Construction. 25 This chapter shall not be construed to do any of the 26 following: 27 1. Require a care facility to accept the transfer or 28 admission of a patient. 29 2. Repeal, abrogate, or impair the operation of any other 30 federal or state laws governing the transfer, admission, or 31 discharge of a patient to or from a care facility. 32 3. Infringe upon the rights of a patient under federal or 33 state law relating to the involuntary transfer, admission, or 34 discharge to or from a care facility. 35 -7- LSB 5341HV (2) 91 ak/ko 7/ 11

H.F. 2562 Sec. 8. NEW SECTION . 144H.8 Rules. 1 The department may promulgate rules pursuant to chapter 17A 2 as necessary to administer this chapter. 3 EXPLANATION 4 The inclusion of this explanation does not constitute agreement with 5 the explanation’s substance by the members of the general assembly. 6 This bill relates to care facility placement decisions for 7 certain adults. 8 The bill defines “authorized representative” as an agent, 9 attorney in fact, conservator, or guardian. “Person authorized 10 to consent” (authorized person) is defined as a member of any 11 of the following groups of individuals, in order of priority, 12 that is willing and able to consent, refuse to consent, or 13 withdraw consent on a patient’s behalf: the patient’s spouse, 14 the adult children, the parent or parents of a patient, or the 15 adult siblings of the patient. “Care facility” is defined as 16 a facility that provides a patient with health-related and 17 personal care services, including a hospital, medical clinic, 18 nursing facility, rehabilitation facility, or residential care 19 facility. “Placement” is defined as the admission, discharge, 20 or transfer of a patient. 21 The bill provides that a physician licensed under the laws 22 of this state may certify in a patient’s record that the 23 patient is not able to consent, an authorized representative 24 for the patient has not been located by the physician despite 25 good-faith efforts, and that it is in the patient’s best 26 interests to be discharged from the patient’s current care 27 facility and transferred or admitted to a care facility 28 recommended by the physician. “Patient” and “able to consent” 29 are defined in the bill. 30 The bill provides that an authorized person shall act in 31 good faith and consider the patient’s rights, wishes, and best 32 interests. The bill authorizes the authorized person, upon 33 the physician’s certification, to make care facility placement 34 decisions and assist the patient in applying for health 35 -8- LSB 5341HV (2) 91 ak/ko 8/ 11

H.F. 2562 insurance coverage through private insurance, or for a public 1 assistance program, as necessary to facilitate placement. The 2 bill allows the authorized person, as reasonably necessary to 3 assist the patient in applying for health insurance coverage 4 through a private insurer or a public assistance program and as 5 permitted under state and federal law, to access a patient’s 6 financial and banking records as well as disclose relevant 7 health information to a third party. 8 The bill provides that the authority of an authorized person 9 expires when the placement decided by the authorized person is 10 completed and notice of approval or denial of an application 11 for health insurance coverage through a private insurer, or 12 for a public assistance program, if applicable, is received by 13 a qualified employee of the receiving care facility, or when 14 an authorized representative or authorized person of higher 15 priority is located. 16 The bill requires a social worker, discharge planner, or 17 other qualified employee as designated by the current care 18 facility of the patient to inform an authorized person of 19 the person’s powers and duties and to assist the person with 20 identifying a receiving care facility for the patient that will 21 provide the least restrictive and appropriate level of care for 22 the patient as recommended by the certifying physician. 23 After a good-faith effort to locate an authorized 24 representative or authorized person, the bill allows an 25 attending physician or a care facility to petition a court of 26 competent jurisdiction to order placement or that a patient’s 27 attending physician or a social worker, intake worker, or 28 other qualified employee of the receiving care facility 29 assist the patient in applying for health insurance coverage 30 through a private insurer or a public assistance program. The 31 petition must include certain information about the patient, 32 the petitioner, the current care facility, and the proposed 33 receiving care facility, and be supported by affidavits from 34 an attending physician, a social worker, intake coordinator, 35 -9- LSB 5341HV (2) 91 ak/ko 9/ 11

H.F. 2562 discharge planner, or other qualified employee from both the 1 current and the proposed receiving care facility. The bill 2 allows the court to grant the petition if it finds that the 3 patient is not able to consent, no authorized representative 4 for the patient or authorized person has been located by the 5 attending physician and the patient’s current care facility 6 despite good-faith efforts, placement in the receiving care 7 facility recommended to the court by the patient’s attending 8 physician is in the best interests of the patient, and will 9 provide the least restrictive and most appropriate level of 10 care for the patient. A social worker, intake coordinator, 11 or other qualified employee of the proposed receiving care 12 facility must consent to the admission of the patient. If a 13 court order authorizes a patient’s transfer to the receiving 14 care facility, the authority, if necessary, to apply for 15 a public assistance program on the patient’s behalf shall 16 transfer pursuant to court order to a qualified employee of the 17 receiving care facility. 18 The bill provides that the court’s order shall be effective 19 until a date specified by the court not to exceed 30 calendar 20 days from the date of the issuance of the order, the completion 21 of any placement of the patient in the receiving care facility 22 as ordered, or the date that a physician certifies that the 23 patient is able to consent to the patient’s placement in a care 24 facility. 25 The bill provides that a court order authorizing a qualified 26 employee of a receiving facility to apply for a public 27 assistance program on a patient’s behalf shall be effective 28 until a date specified by the court, the date notice of 29 approval or denial of an application for health insurance 30 coverage through a private insurer, or for a public assistance 31 program is received by a qualified employee of the receiving 32 facility, or the date that an attending physician certifies 33 that the patient is able to consent to the application for a 34 public assistance program. 35 -10- LSB 5341HV (2) 91 ak/ko 10/ 11

H.F. 2562 The bill provides immunity from civil or criminal liability 1 to a person or care facility acting in good faith under the 2 bill. Immunity from licensee discipline is also provided for 3 licensees acting reasonably and in good faith. 4 The bill is not to be construed to require a health care 5 facility to accept the transfer or admission of a patient; to 6 repeal, abrogate, or impair the operation of any other federal 7 or state laws governing the transfer, admission, or discharge 8 of a patient to or from a care facility; or to infringe upon 9 the rights of patients under federal or state law relating to 10 the involuntary transfer, admission, or discharge to or from a 11 care facility. 12 The bill authorizes the department of health and human 13 services to adopt rules to administer the bill. 14 -11- LSB 5341HV (2) 91 ak/ko 11/ 11