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SECOND REGULAR SESSION
HOUSE BILL NO. 1886
103RD GENERAL ASSEMBL Y
INTRODUCED BY REPRESENT A TIVE V AN SCHOIACK.
4219H.01I JOSEPH ENGLER, Chief Clerk
AN ACT
T o amend chapter 404, RSMo, by adding thereto eleven new sections relating to health care
decision-making procedures.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 404, RSMo, is amended by adding thereto eleven new sections, to
2 be known as sections 404.1 100, 404.1 101, 404.1 102, 404.1 103, 404.1 104, 404.1 105,
3 404.1 106, 404.1 107, 404.1 108, 404.1 109, and 404.1 1 10, to read as follows:
404.1 100. Sections 404.1 100 to 404.1 1 10 shall be known and may be cited as the
2 "Designated Health Car e Decision-Maker Act".
404.1 101. As used in sections 404.1 100 to 404.1 1 10, the following terms mean:
2 (1) "Artificially supplied nutrition and hydration", any medical pr ocedur e
3 wher eby nutrition or hydration is supplied thr ough a tube inserted into a person's nose,
4 mouth, stomach, or intestines, or nutrients or fluids ar e administered into a person's
5 bloodstr eam or pr ovided subcutaneously;
6 (2) "Best interes ts":
7 (a) Pr omoting the incapacitated person's right to enjoy the highest attainable
8 standard of health for that person;
9 (b) Advocating that the person who is incapacitated receiv e the same range,
10 quality , and standard of health car e, car e, and comfort as is provi ded to a similarly
11 situated individual who is not incapacitated; and
12 (c) Advocating against the discriminatory denial of health car e, care, or comfort,
13 or food or fluids, on the basis that the person who is incapacitated is consider ed an
14 individual with a disability;
EXPLANA TION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted from the law . Matter in bold-face type in the above bill is proposed language.
15 (3) "Designated health car e decision-maker", the person designated to make
16 health care decisions for a patient under section 404.1 104, not including a person acting
17 as a guardian or an agent under a durable power of attorney for health care or any
18 other person legally authorized to consent for the patient under any other law to make
19 health car e decisions for an incapacitated patient;
20 (4) "Disability" or "disabled", the same meaning given to the term in 42 U.S.C.
21 Section 12102, the Americans with Disabilities Act of 1990, as amended, except the term
22 "this chapter" in that definition shall be deemed to ref er to sections 404.1 100 to
23 404.1 1 10;
24 (5) "Health care" , a pr ocedur e to diagnose or tr eat a human disease, ailment,
25 defect, abnormality , or complaint, whether of physical or mental origin, and includes:
26 (a) Assisted living services;
27 (b) Intermediate or skilled nursing car e pr ovided in a facility licensed under
28 chapter 198;
29 (c) Services for the rehab ilitation or tr eatment of injur ed, disabled, or sick
30 persons; or
31 (d) Making arrangements for placement in or transfer to or fr om a health car e
32 facility or health care provi der that pr ovides such forms of car e;
33 (6) "Health car e facility", any hospital, hospice, inpatient facility , nursing
34 facility , skilled nursing facility , resi dential care facility , intermediate car e facility ,
35 dialysis tr eatment facility , assisted living facility , or home health or hospice agency; any
36 entity that pr ovides home or community-based health car e services; or any other facility
37 that pro vides or contracts to pr ovide health care and that is licensed, certified, or
38 otherwise authorized or permitted by law to pr ovide health car e;
39 (7) "Health care pr ovider", any individual who pr ovides health care to persons
40 and who is licensed, certified, regist ered, or otherwise authorized or permitted by law to
41 pr ovide health car e;
42 (8) "Incapacitated", a person who is unable by r eason of any physical or mental
43 condition to recei ve and evaluate information or to communicate decisions to such an
44 extent that the person lacks capacity to meet essential requ irem ents for food, clothing,
45 shelter , safety , or other care such that serious physical injury , illness, or disease is likely
46 to occur;
47 (9) "Patient", any adult person or any person otherwise authorized to make
48 health car e decisions for himself or herself under Missouri law;
49 (10) "Physician", a tr eating, attending, or consulting physician licensed to
50 practice medicine under chapter 334;
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51 (1 1) "Reasonable medical judgment", a medical judgment that would be made
52 by a reas onably prudent physician, knowledgeable about the case and the health car e
53 possibilities with res pect to the medical conditions involved.
404.1 102. The determination that a patient is incapacitated shall be made as set
2 forth in section 404.825. A health car e pro vider or health car e facility may r ely on the
3 exer cise of good faith and in accordance with reas onable medical judgment upon the
4 health car e decisions made for a patient by a designated health care decision-maker
5 selected in accordance with section 404.1 104, pr ovided that:
6 (1) T wo licensed physicians determine, after rea sonable inquiry and in
7 accordance with reas onable medical judgment, that the patient is incapacitated;
8 (2) The patient has neither a guardian with medical decision-making authority
9 appointed in accordance with chapter 475 or an attorney-in-fact appointed in a durable
10 power of attorney for health car e in accordance with sections 404.800 to 404.865;
11 (3) The patient is not a child under the jurisdiction of the juvenile court under
12 section 21 1.031; and
13 (4) The patient does not have any other known person who has the legal
14 authority to make health care decisions for the patient.
404.1 103. Upon a determination that a patient is incapacitated, the physician or
2 another health car e provi der acting at the dir ection of the physician shall make
3 r easonable efforts to inform potential designated health care decision-makers set forth
4 in section 404.1 104, of whom the physician or the physician's designee is awar e, of the
5 need to appoint a designated health car e decision-maker . Reasonable efforts include,
6 without limitation, identifying potential designated health car e decision-makers as set
7 forth in subsection 1 of section 404.1 104, a guardian with medical decision-making
8 authority appointed in accordance with chapter 475, an attorney-in-fact appointed in a
9 durable power of attorney for health car e in accordance with sections 404.800 to
10 404.865, the juvenile court under section 21 1.031, or any other known person who has
11 the legal authority to make health car e decisions for the patient, by examining the
12 patient's personal effects and medical record s. If a family member , attorney-in-fact for
13 health car e, or guardian with health care decision-making authority is identified, a
14 documented attempt to contact that person by telephone, with all known telephone
15 numbers and other contact information used, shall be made within twenty-four hours
16 after a determination of incapacity is made as provi ded in section 404.1 102.
404.1 104. 1. If a patient is incapacitated under the cir cumstances described in
2 section 404.1 102 and unable to pr ovide consent rega rding his or her own health care ;
3 does not have a legally appointed guardian or an agent under a health car e durable
4 power of attorney; is not under the jurisdiction of the juvenile court; and does not have
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5 any other person who has legal authority to consent for the patient, decisions concerning
6 the patient's health car e may be made by the following competent persons in the
7 following order of priority , with the exception of persons excluded under subsection 4 of
8 this section:
9 (1) The spouse of the patient, unless the spouse and the patient ar e separated
10 under one of the following:
11 (a) A curr ent dissolution of marriage or separation action;
12 (b) A signed written prop erty or marital settlement agre ement; or
13 (c) A permanent order of separate maintenance or support or a permanent
14 order appr oving a prop erty or marital settlement agre ement between the parties;
15 (2) An adult child of the patient;
16 (3) A par ent of the patient;
17 (4) An adult sibling of the patient;
18 (5) A grandpar ent of the patient or an adult grandchild of the patient;
19 (6) A niece or nephew or the next neare st other relat ive of the patient, by
20 consanguinity or affinity;
21 (7) A person who is a member of the same community of persons as the patient
22 who is bound by vows to a relig ious life, who conducts or assists in the conducting of
23 r eligious services, and who actually and regu larly engages in religi ous, benevolent,
24 charitable, or educational ministry or the performance of health care services;
25 (8) Any nonr elative who can demonstrate that he or she has a close personal
26 r elationship with the patient and is familiar with the patient's personal values; or
27 (9) Any other person designated by the unanimous mutual agr eement of the
28 persons listed above who is involved in the patient's car e.
29 2. If a person who is a member of any class of persons listed in subsection 1 of
30 this section, regard less of priority , or a health car e pro vider or a health care facility
31 involved in the care of the patient, disagre es on whether certain health care should be
32 pr ovided to or withheld or withdrawn fr om a patient, any such person, pr ovider , or
33 facility , or any other person inter ested in the welfare of the patient, may petition the
34 pr obate court for an order for the appointment of a temporary or permanent guardian
35 in accordance with subsection 8 of this section to act in the best interes ts of the patient.
36 3. A person who is a member of any class of persons listed in subsection 1 of this
37 section shall not be denied priority under this section based solely upon that person's
38 support for , or direction to pr ovide, withhold, or withdraw , health care to the patient,
39 subject to the rights of any other classes of potential designated health car e decision-
40 makers, a health care provi der , or a health care facility to petition the pro bate court for
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41 an order for the appointment of a temporary or permanent guardian under subsection 8
42 of this section to act in the best interes ts of the patient.
43 4. Priority under this section shall not be given to persons in any of the following
44 cir cumstances:
45 (1) If a r eport of abuse or neglect of the patient has been made under section
46 192.2475, 198.070, 208.912, 210.1 15, 565.188, or 630.163, or any other mandatory
47 r eporting statutes, and if the health car e prov ider knows of such a rep ort of abuse or
48 neglect, then unless the report has been determined to be unsubstantiated or unfounded,
49 or a determination of abuse was finally reversed after administrative or judicial revi ew ,
50 the person rep orted as the alleged perpetrator of the abuse or neglect shall not be given
51 priority or authority to make health care decisions under subsection 1 of this section,
52 pr ovided that such a report shall not be based on the person's support for , or dir ection
53 to prov ide, health care to the patient;
54 (2) If the patient's physician or the physician's designee reas onably determines,
55 after making a diligent effort to contact the designated health care decision-maker using
56 known telephone numbers and other contact information and receiv ing no res ponse,
57 that such person is not r easonably available to make medical decisions as needed or is
58 not willing to make health car e decisions for the patient; or
59 (3) If a pr obate court in a pr oceeding under subsection 8 of this section finds that
60 the involvement of the person in decisions concerning the patient's health care is
61 contrary to instructions that the patient had unambiguously , and without subsequent
62 contradiction or change, expr essed before he or she became incapacitated. Such a
63 statement to the patient's physician or other health care prov ider contemporaneously
64 r ecorded in the patient's medical rec ord and signed by the patient's physician or other
65 health care pr ovider shall be deemed such an instruction, subject to the ability of a
66 party to a proceed ing under subsection 8 of this section to dispute its accuracy , weight,
67 or interpr etation.
68 5. (1) The designated health care decision-maker shall make reas onable efforts
69 to obtain information regard ing the patient's health car e pr efer ences fr om health car e
70 pr oviders, family , friends, or others who may have credi ble information.
71 (2) The designated health care decision-maker , and the pro bate court in any
72 pr oceeding under subsection 8 of this section, shall always make health care decisions in
73 the patient's best inter ests and, if the patient's rel igious and moral beliefs and health
74 car e pr efer ences ar e known and not inconsistent with the patient's best interes ts, in
75 accordance with those beliefs and pref erences.
76 6. This section does not authorize the pr ovision or withholding of health care
77 services that the patient has unambiguously , without subsequent contradiction or
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78 change of instruction, expr essed to the patient's physician or other health car e provi der
79 that he or she would or would not want at a time when such patient had capacity . Such
80 a statement to the patient's physician or other health care pr ovider , contemporaneously
81 r ecorded in the patient's medical rec ord and signed by the patient's physician or other
82 health car e pr ovider , shall be deemed such an instruction, subject to the ability of a
83 party to a proceed ing under subsection 8 of this section to dispute its accuracy , weight,
84 or interpr etation.
85 7. A designated health car e decision-maker shall be deemed a personal
86 r epre sentative for the purposes of access to and disclosure of private medical
87 information under the Health Insurance Portability and Accountability Act of 1996
88 (HIP AA), 42 U.S.C. Section 1320d et seq., and its implementing r egulations, 45 CFR
89 Parts 160 to 164.
90 8. Nothing in sections 404.1 100 to 404.1 1 10 shall precl ude any person interes ted
91 in the welfare of a patient, including, but not limited to, a designated health care
92 decision-maker , a member of any class listed in subsection 1 of this section, regard less of
93 priority , or a health car e provi der or health care facility involved in the care of the
94 patient, fro m petitioning the pr obate court for the appointment of a temporary or
95 permanent guardian for the patient, including for expedited adjudication, as pr ovided
96 in chapter 475.
97 9. Pending the final outcome of procee dings initiated under subsection 8 of this
98 section, the designated health care decision-maker , health car e pr ovider , or health car e
99 facility shall not withhold or withdraw , or dir ect the withholding or withdrawal of,
100 health care, nutrition, or hydration whose withholding or withdrawal, according to
101 r easonable medical judgment, would r esult in or hasten the death of the patient, would
102 jeopardize the health or limb of the patient, or would res ult in disfigurement or
103 impairment of the patient's faculties. If a health car e pro vider or a health car e facility
104 objects to the pr ovision of such health car e, nutrition, or hydration on the basis of
105 r eligious beliefs or sincerel y held moral convictions, the pr ovider or facility shall not
106 impede the transfer of the patient to another health car e provi der or health care facility
107 willing to pro vide it and shall prov ide such health care, nutrition, or hydration to the
108 patient pending the completion of the transfer . For purposes of this section, artificially
109 supplied nutrition and hydration shall be withheld or withdrawn during the pendency
110 of the guardianship pro ceeding only if, based on reas onable medical judgment, the
111 patient's physician and a second licensed physician certify that the patient meets the
112 standard set forth in subdivision (2) of subsection 1 of section 404.1 105. If tolerated by
113 the patient and adequate to supply the patient's needs for nutrition or hydration,
114 natural feeding shall be the pref erred method.
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404.1 105. 1. No designated health care decision-maker shall, with the intent of
2 hastening or causing the death of the patient, authorize the withdrawal or withholding
3 of nutrition or hydration supplied thr ough either natural or artificial means. A
4 designated health care decision-maker shall authorize the withdrawal or withholding of
5 artificially supplied nutrition and hydration only if the physician and a second licensed
6 physician certify in the patient's medical re cord based on reas onable medical judgment
7 that:
8 (1) Artificially supplied nutrition or hydration is not necessary for comfort, car e,
9 or the relief of pain and would serve only to pr olong artificially the dying process and
10 death will occur within a short period of time regardl ess of whether such artificially
11 supplied nutrition or hydration is withheld or withdrawn; or
12 (2) Artificially supplied nutrition or hydration cannot be physiologically
13 assimilated or tolerated by the patient.
14 2. When tolerated by the patient and adequate to supply the patient's need for
15 nutrition or hydration, natural feeding shall be the pref erred method.
404.1 106. If any individual specified in section 404.1 104, the designated health
2 car e decision-maker , or the physician believes the patient is no longer incapacitated, the
3 patient's physician shall reex amine the patient and determine in accordance with
4 r easonable medical judgment whether the patient is no longer incapacitated, shall
5 certify the decision and the basis ther efor in the patient's medical record , and shall
6 notify the patient, the designated health car e decision-maker , and the person who
7 initiated the r edetermination of capacity . Rights of the designated health care decision-
8 maker shall end upon the physician's certification that the patient is no longer
9 incapacitated.
404.1 107. No health car e pr ovider or health care facility that makes good-faith
2 and reas onable attempts to identify , locate, and communicate with potential designated
3 health care decision-makers in accordance with sections 404.1 100 to 404.1 1 10 shall be
4 subject to civil or criminal liability or reg ulatory sanction for the effort to identify ,
5 locate, and communicate with such potential designated health car e decision-makers.
404.1 108. 1. A health car e pr ovider or a health car e facility may decline to
2 comply with the health car e decision of a patient or a designated health car e decision-
3 maker if such decision is contrary to the relig ious beliefs or sincere ly held moral
4 convictions of a health car e pr ovider or health car e facility .
5 2. If, at any time, a health care pr ovider or health care facility determines that
6 any known or anticipated health care pref eren ces express ed by the patient to the health
7 car e pr ovider or health car e facility , or as express ed thr ough the patient's designated
8 health car e decision-maker , are contrary to the reli gious beliefs or sincer ely held moral
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9 convictions of the health care pro vider or health car e facility , such pro vider or facility
10 shall prompt ly inform the patient or the patient's designated health car e decision-
11 maker .
12 3. If a health car e pro vider or health car e facility declines to comply with such
13 health car e decision, no health care pro vider or health care facility shall impede the
14 transfer of the patient to another health car e provi der or health car e facility willing to
15 comply with the health car e decision.
16 4. Nothing in this section shall rel ieve or exonerate a health care prov ider or a
17 health care facility fr om the duty to prov ide for the health car e, care, and comfort of a
18 patient pending transfer under this section. If withholding or withdrawing certain
19 health care would, according to reas onable medical judgment, res ult in or hasten the
20 death of the patient, such health care shall be pr ovided pending completion of the
21 transfer . Notwithstanding any other pr ovision of this section to the contrary , no such
22 health care shall be denied on the basis of a view that tr eats extending the life of an
23 elderly , disabled, or terminally ill individual as of lower value than extending the life of
24 an individual who is younger , nondisabled, or not terminally ill, or on the basis of the
25 health car e prov ider's or facility's disagr eement with how the patient or individual
26 authorized to act on the patient's behalf values the tradeoff between extending the
27 length of the patient's life and the risk of disability .
404.1 109. No designated health care decision-maker shall withhold or withdraw
2 health care fro m a pr egnant patient, consistent with existing law , as set forth in section
3 459.025.
404.1 1 10. Nothing in sections 404.1 100 to 404.1 1 10 is intended to:
2 (1) Be construed as condoning, authorizing, or appr oving euthanasia or mer cy
3 killing; or
4 (2) Be construed as permitting any affirmative or deliberate act to end a person's
5 life, except to permit natural death as pr ovided by sections 404.1 100 to 404.1 1 10.
✔
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