S.F. 2423 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 5341SV (2) 91 ak/ko 1/ 11

S.F. 2423 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 5341SV (2) 91 ak/ko 2/ 11

S.F. 2423 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 5341SV (2) 91 ak/ko 3/ 11

S.F. 2423 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 1. 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 a. Inform the person of the person’s powers and duties 13 pursuant to this chapter. 14 b. 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 2. If a receiving care facility for the patient that can 21 provide the least restrictive and appropriate level of care as 22 described under subsection 1 is identified, and the receiving 23 care facility consents, the patient shall be transferred to the 24 receiving care facility. 25 Sec. 5. NEW SECTION . 144H.5 Petition for court order. 26 1. After good-faith efforts to locate an authorized 27 representative for the patient or a person authorized to 28 consent, a care facility or attending physician may petition a 29 court of competent jurisdiction to order any of the following: 30 a. The patient’s care facility placement. 31 b. The patient’s attending physician or a social worker, 32 intake worker, or other qualified employee of the receiving 33 care facility to assist the patient to apply for health 34 insurance coverage through a private insurer or apply for a 35 -4- LSB 5341SV (2) 91 ak/ko 4/ 11

S.F. 2423 public assistance program, if appropriate. 1 2. The petition made must include the following 2 information: 3 a. The name, age, and address where the patient resides, if 4 known to the petitioner. 5 b. The name, address, and county of residence of the 6 petitioner. 7 c. The relationship of the petitioner to the patient. 8 d. The address where the patient can be found, if different 9 from the patient’s residential address. 10 e. A physician’s certification pursuant to section 144H.2. 11 f. An affidavit from the patient’s attending physician, 12 that upon an examination of the patient and consultation with 13 another health care provider, all of the following are true: 14 (1) The patient is not able to consent. 15 (2) The patient has not identified, and despite good-faith 16 efforts the attending physician has been unable to locate, an 17 authorized representative or a person authorized to consent. 18 (3) The receiving care facility placement recommended by 19 the attending physician is in the patient’s best interests. 20 (4) The receiving care facility placement recommended by 21 the attending physician will provide the least restrictive and 22 most appropriate level of care for the patient, and is within a 23 reasonable proximity to the patient’s residence, if applicable. 24 g. An affidavit from a social worker, discharge planner, or 25 other qualified employee as designated by the patient’s current 26 care facility attesting to all of the following: 27 (1) The patient has not identified, and despite good-faith 28 efforts the current care facility has been unable to locate, an 29 authorized representative or a person authorized to consent. 30 (2) The receiving care facility placement recommended by 31 the attending physician will provide the least restrictive and 32 most appropriate level of care for the patient. 33 (3) Other care facilities within a reasonable proximity 34 to the patient’s residence were considered for placement, if 35 -5- LSB 5341SV (2) 91 ak/ko 5/ 11

S.F. 2423 applicable. 1 h. An affidavit from a social worker, intake coordinator, 2 or other qualified employee of the receiving care facility 3 recommended by the patient’s attending physician attesting to 4 all of the following: 5 (1) The receiving care facility is the most appropriate 6 facility available for the patient. 7 (2) The receiving care facility can provide the least 8 restrictive and most appropriate level of care to the patient. 9 (3) The receiving care facility consents to the transfer or 10 admission of the patient. 11 i. The name and address of the receiving care facility 12 recommended by the attending physician. 13 3. The court may grant the petition if the court finds all 14 of the following: 15 a. The patient is not able to consent. 16 b. Despite good-faith efforts by the attending physician 17 and the patient’s current care facility, an authorized 18 representative or person authorized to consent has not been 19 located. 20 c. Placement in the receiving care facility recommended 21 by the patient’s attending physician is in the patient’s best 22 interest. 23 d. Placement in the receiving care facility recommended 24 by the patient’s attending physician will provide the least 25 restrictive and most appropriate level of care for the patient. 26 e. A social worker, intake coordinator, or other qualified 27 employee of the receiving care facility recommended by the 28 patient’s attending physician has consented to the admission 29 of the patient. 30 4. If the court grants the petition under subsection 3, the 31 court shall also order, if necessary, that a qualified employee 32 of the receiving care facility has the authority to apply for a 33 public assistance program on the patient’s behalf. 34 5. An order authorizing placement pursuant to this section 35 -6- LSB 5341SV (2) 91 ak/ko 6/ 11

S.F. 2423 shall remain in effect until the earliest of any of the 1 following: 2 a. A date specified by the court not to exceed thirty 3 calendar days from the date of issuance of the order. 4 b. The date the patient’s placement in the receiving care 5 facility as ordered by the court is completed. 6 c. The date an attending physician certifies that the 7 patient is able to consent to the patient’s placement in the 8 receiving care facility. 9 6. An order authorizing a qualified employee of a receiving 10 facility to apply for a public assistance program on a 11 patient’s behalf pursuant to this section shall remain in 12 effect until the earliest of any of the following: 13 a. A date specified by the court. 14 b. Notice of approval or denial of an application for health 15 insurance coverage through a private insurer, or for a public 16 assistance program is received by a qualified employee of the 17 receiving facility. 18 c. The date that an attending physician certifies that the 19 patient is able to consent to the application for a public 20 assistance program. 21 Sec. 6. NEW SECTION . 144H.6 Immunity —— liability and 22 professional discipline. 23 1. A person or care facility acting in good faith pursuant 24 to this chapter shall not be subject to civil or criminal 25 liability. 26 2. A licensee under chapter 148 acting reasonably and in 27 good faith pursuant to this chapter shall not be subject to 28 licensee discipline. 29 Sec. 7. NEW SECTION . 144H.7 Construction. 30 This chapter shall not be construed to do any of the 31 following: 32 1. Require a care facility to accept the transfer or 33 admission of a patient. 34 2. Repeal, abrogate, or impair the operation of any other 35 -7- LSB 5341SV (2) 91 ak/ko 7/ 11

S.F. 2423 federal or state laws governing the transfer, admission, or 1 discharge of a patient to or from a care facility. 2 3. Infringe upon the rights of a patient under federal or 3 state law relating to the involuntary transfer, admission, or 4 discharge to or from a care facility. 5 Sec. 8. NEW SECTION . 144H.8 Rules. 6 The department may promulgate rules pursuant to chapter 17A 7 as necessary to administer this chapter. 8 EXPLANATION 9 The inclusion of this explanation does not constitute agreement with 10 the explanation’s substance by the members of the general assembly. 11 This bill relates to care facility placement decisions for 12 certain adults. 13 The bill defines “authorized representative” as an agent, 14 attorney in fact, conservator, or guardian. “Person authorized 15 to consent” (authorized person) is defined as a member of any 16 of the following groups of individuals, in order of priority, 17 that is willing and able to consent, refuse to consent, or 18 withdraw consent on a patient’s behalf: the patient’s spouse, 19 the adult children, the parent or parents of a patient, or the 20 adult siblings of the patient. “Care facility” is defined as 21 a facility that provides a patient with health-related and 22 personal care services, including a hospital, medical clinic, 23 nursing facility, rehabilitation facility, or residential care 24 facility. “Placement” is defined as the admission, discharge, 25 or transfer of a patient. 26 The bill provides that a physician licensed under the laws 27 of this state may certify in a patient’s record that the 28 patient is not able to consent, an authorized representative 29 for the patient has not been located by the physician despite 30 good-faith efforts, and that it is in the patient’s best 31 interests to be discharged from the patient’s current care 32 facility and transferred or admitted to a care facility 33 recommended by the physician. “Patient” and “able to consent” 34 are defined in the bill. 35 -8- LSB 5341SV (2) 91 ak/ko 8/ 11

S.F. 2423 The bill provides that an authorized person shall act in 1 good faith and consider the patient’s rights, wishes, and best 2 interests. The bill authorizes the authorized person, upon 3 the physician’s certification, to make care facility placement 4 decisions and assist the patient in applying for health 5 insurance coverage through private insurance, or for a public 6 assistance program, as necessary to facilitate placement. The 7 bill allows the authorized person, as reasonably necessary to 8 assist the patient in applying for health insurance coverage 9 through a private insurer or a public assistance program and as 10 permitted under state and federal law, to access a patient’s 11 financial and banking records as well as disclose relevant 12 health information to a third party. 13 The bill provides that the authority of an authorized person 14 expires when the placement decided by the authorized person is 15 completed and notice of approval or denial of an application 16 for health insurance coverage through a private insurer, or 17 for a public assistance program, if applicable, is received by 18 a qualified employee of the receiving care facility, or when 19 an authorized representative or authorized person of higher 20 priority is located. 21 The bill requires a social worker, discharge planner, or 22 other qualified employee as designated by the current care 23 facility of the patient to inform an authorized person of 24 the person’s powers and duties and to assist the person with 25 identifying a receiving care facility for the patient that will 26 provide the least restrictive and appropriate level of care for 27 the patient as recommended by the certifying physician. If the 28 receiving care facility as described in the bill is identified 29 and consents, the patient shall be transferred to the receiving 30 care facility. 31 After a good-faith effort to locate an authorized 32 representative or authorized person, the bill allows an 33 attending physician or a care facility to petition a court of 34 competent jurisdiction to order placement or that a patient’s 35 -9- LSB 5341SV (2) 91 ak/ko 9/ 11

S.F. 2423 attending physician or a social worker, intake worker, or 1 other qualified employee of the receiving care facility 2 assist the patient in applying for health insurance coverage 3 through a private insurer or a public assistance program. The 4 petition must include certain information about the patient, 5 the petitioner, the current care facility, and the proposed 6 receiving care facility, and be supported by affidavits from 7 an attending physician, a social worker, intake coordinator, 8 discharge planner, or other qualified employee from both the 9 current and the proposed receiving care facility. The bill 10 allows the court to grant the petition if it finds that the 11 patient is not able to consent, no authorized representative 12 for the patient or authorized person has been located by the 13 attending physician and the patient’s current care facility 14 despite good-faith efforts, placement in the receiving care 15 facility recommended to the court by the patient’s attending 16 physician is in the best interests of the patient, and will 17 provide the least restrictive and most appropriate level of 18 care for the patient. A social worker, intake coordinator, 19 or other qualified employee of the proposed receiving care 20 facility must consent to the admission of the patient. If a 21 court order authorizes a patient’s transfer to the receiving 22 care facility, the authority, if necessary, to apply for 23 a public assistance program on the patient’s behalf shall 24 transfer pursuant to court order to a qualified employee of the 25 receiving care facility. 26 The bill provides that the court’s order shall be effective 27 until a date specified by the court not to exceed 30 calendar 28 days from the date of the issuance of the order, the completion 29 of any placement of the patient in the receiving care facility 30 as ordered, or the date that a physician certifies that the 31 patient is able to consent to the patient’s placement in a care 32 facility. 33 The bill provides that a court order authorizing a qualified 34 employee of a receiving facility to apply for a public 35 -10- LSB 5341SV (2) 91 ak/ko 10/ 11

S.F. 2423 assistance program on a patient’s behalf shall be effective 1 until a date specified by the court, the date notice of 2 approval or denial of an application for health insurance 3 coverage through a private insurer, or for a public assistance 4 program is received by a qualified employee of the receiving 5 facility, or the date that an attending physician certifies 6 that the patient is able to consent to the application for a 7 public assistance program. 8 The bill provides immunity from civil or criminal liability 9 to a person or care facility acting in good faith under the 10 bill. Immunity from licensee discipline is also provided for 11 licensees acting reasonably and in good faith. 12 The bill is not to be construed to require a health care 13 facility to accept the transfer or admission of a patient; to 14 repeal, abrogate, or impair the operation of any other federal 15 or state laws governing the transfer, admission, or discharge 16 of a patient to or from a care facility; or to infringe upon 17 the rights of patients under federal or state law relating to 18 the involuntary transfer, admission, or discharge to or from a 19 care facility. 20 The bill authorizes the department of health and human 21 services to adopt rules to administer the bill. 22 -11- LSB 5341SV (2) 91 ak/ko 11/ 11