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6661S.02C
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SENATE COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 1536
AN ACT
To amend chapter 404, RSMo, by adding thereto ten new
sections relating to the appointment of a designated
health care decision-maker.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Chapter 404, RSMo, is amended by adding thereto
ten new sections, to be known as sections 404.1100, 404.1101,
404.1102, 404.1103, 404.1104, 404.1105, 404.1106, 404.1107,
404.1109, and 404.1110, to read as follows:
404.1100. Sections 404.1100 to 404.1110 shall be known
and may be cited as the "Designated Health Care Decision-
Maker Act".
404.1101. As used in sections 404.1100 to 404.1110,
the following terms mean:
(1) "Artificially supplied nutrition and hydration",
any medical procedure whereby nutrition or hydration is
supplied through a tube inserted into a person's nose,
mouth, stomach, or intestines, or nutrients or fluids are
administered into a person's bloodstream or provided
subcutaneously;
(2) "Best interests":
(a) Promoting the incapacitated person's right to
enjoy the highest attainable standard of health for that
person;
(b) Advocating that the person who is incapacitated
receive the same range, quality, and standard of health
care, care, and comfort as is provided to a similarly
situated individual who is not incapacitated; and
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(c) Advocating against the discriminatory denial of
health care, care, or comfort, or food or fluids solely on
the basis that the person who is incapacitated is considered
an individual with a disability;
(3) "Designated health care decision-maker", the
person designated to make health care decisions for a
patient under section 404.1104, not including a person
acting as a guardian or an agent under a durable power of
attorney for health care or any other person legally
authorized to consent for the patient under any other law to
make health care decisions for an incapacitated patient;
(4) "Disability" or "disabled", the same meaning as
the term "disability" is defined in 42 U.S.C. Section 12102,
the Americans with Disabilities Act of 1990, as amended,
except the term "this chapter" in that definition shall be
deemed to refer to sections 404.1100 to 404.1110;
(5) "Health care", a procedure to diagnose or treat a
human disease, ailment, defect, abnormality, or complaint,
whether of physical or mental origin, and includes:
(a) Assisted living services, or intermediate or
skilled nursing care provided in a facility licensed under
chapter 198;
(b) Services for the rehabilitation or treatment of
injured, disabled, or sick persons; or
(c) Making arrangements for placement in or transfer
to or from a health care facility or health care provider
that provides such forms of care;
(6) "Health care facility", any hospital, hospice,
inpatient facility, nursing facility, skilled nursing
facility, residential care facility, intermediate care
facility, dialysis treatment facility, assisted living
facility, or home health or hospice agency; any entity that
provides home or community-based health care services; or
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any other facility that provides or contracts to provide
health care, and that is licensed, certified, or otherwise
authorized or permitted by law to provide health care. The
term "health care facility" shall not include facilities,
including psychiatric hospitals, operated by the department
of mental health and facilities licensed, certified, or
otherwise regulated under chapters 630 to 633;
(7) "Health care provider", any individual who
provides health care to persons and who is licensed,
certified, registered, or otherwise authorized or permitted
by law to provide health care;
(8) "Incapacitated", a person who is unable by reason
of any physical or mental condition to receive and evaluate
information or to communicate decisions to such an extent
that the person lacks capacity to meet essential
requirements for food, clothing, shelter, safety, or other
care such that serious physical injury, illness, or disease
is likely to occur;
(9) "Patient", any adult person or any person
otherwise authorized to make health care decisions for
himself or herself under Missouri law;
(10) "Physician", a treating, attending, or consulting
physician licensed to practice medicine under chapter 334;
(11) "Reasonable medical judgment", a medical judgment
that would be made by a reasonably prudent physician,
knowledgeable about the case and the health care
possibilities with respect to the medical conditions
involved.
404.1102. The determination that a patient is
incapacitated shall be made as set forth in section
404.825. A health care provider or health care facility may
rely on the exercise of good faith and in accordance with
reasonable medical judgment upon the health care decisions
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made for a patient by a designated health care decision-
maker selected in accordance with sections 404.1103 and
404.1104, provided that two licensed physicians determine,
after reasonable inquiry and in accordance with reasonable
medical judgment, that such patient is incapacitated.
404.1103. Upon a determination that a patient is
incapacitated, the physician, or the physician's designee
acting at the direction of the physician, shall make
reasonable efforts to inform potential designated health
care decision-makers set forth in section 404.1104 of whom
the physician or the physician's designee is aware, of the
need to appoint a designated health care decision-maker.
Reasonable efforts include, without limitation, identifying
potential designated health care decision-makers as set
forth in subsection 1 of section 404.1104, a guardian with
medical decision-making authority appointed in accordance
with chapter 475, an attorney in fact appointed in a durable
power of attorney for health care in accordance with
sections 404.800 to 404.865, the juvenile court under
section 211.031, or any other known person who has the legal
authority to make health care decisions, by examining the
patient's personal effects and medical records. If a family
member, attorney in fact for health care, or guardian with
health care decision-making authority is identified, a
documented attempt to contact that person by telephone, with
all known telephone numbers and other contact information
used, shall be made within twenty-four hours after a
determination of incapacity is made as provided in section
404.1102.
404.1104. 1. If a patient is incapacitated under the
circumstances described in section 404.1102 and is unable to
provide consent regarding his or her own health care, and
does not have a legally appointed guardian or an agent under
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a health care durable power of attorney, is not under the
jurisdiction of the juvenile court, or does not have any
other person who has legal authority to consent for the
patient, decisions concerning the patient's health care may
be made by the following competent persons in the following
order of priority, with the exception of persons excluded
under subsection 4 of this section:
(1) The spouse of the patient, unless the spouse and
patient are separated under one of the following:
(a) A current dissolution of marriage or separation
action;
(b) A signed written property or marital settlement
agreement; or
(c) A permanent order of separate maintenance or
support or a permanent order approving a property or marital
settlement agreement between the parties;
(2) An adult child of the patient;
(3) A parent of the patient;
(4) An adult sibling of the patient;
(5) A grandparent or adult grandchild of the patient;
(6) A niece or nephew or the next nearest other
relative of the patient, by consanguinity or affinity;
(7) A person who is a member of the same community of
persons as the patient who is bound by vows to a religious
life, who conducts or assists in the conducting of religious
services, and who actually and regularly engages in
religious, benevolent, charitable, or educational ministry,
or the performance of health care services;
(8) Any nonrelative who can demonstrate that he or she
has a close personal relationship with the patient and is
familiar with the patient's personal values; or
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(9) Any other person designated by the unanimous
mutual agreement of the persons listed above who is involved
in the patient's care.
2. If a person who is a member of the classes listed
in subsection 1 of this section, regardless of priority, or
a health care provider or a health care facility involved in
the care of the patient, disagrees on whether certain health
care should be provided to or withheld or withdrawn from a
patient, any such person, provider, or facility, or any
other person interested in the welfare of the patient may
petition the probate court for an order for the appointment
of a temporary or permanent guardian in accordance with
subsection 8 of this section to act in the best interest of
the patient.
3. A person who is a member of the classes listed in
subsection 1 of this section shall not be denied priority
under this section based solely upon that person's support
for, or direction to provide, withhold, or withdraw health
care to the patient, subject to the rights of other classes
of potential designated health care decision-makers, a
health care provider, or a health care facility to petition
the probate court for an order for the appointment of a
temporary or permanent guardian under subsection 8 of this
section to act in the best interests of the patient.
4. Priority under this section shall not be knowingly
given to persons in any of the following circumstances:
(1) If a report of abuse or neglect of the patient has
been made pursuant to section 192.2475, 198.070, 208.912,
210.115, 565.188, or 630.163, or any other mandatory
reporting statutes, and if the health care provider knows of
such a report of abuse or neglect, then unless the report
has been determined to be unsubstantiated or unfounded, or a
determination of abuse was finally reversed after
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administrative or judicial review, the person reported as
the alleged perpetrator of the abuse or neglect shall not be
given priority or authority to make health care decisions
pursuant to subsection 1 of this section, provided that such
a report shall not be based on the person's support for, or
direction to provide, health care to the patient;
(2) If the patient's physician or the physician's
designee reasonably determines, after making a diligent
effort to contact the designated health care decision-maker
using known telephone numbers and other contact information
and receiving no response, that such person is not
reasonably available to make medical decisions as needed or
is not willing to make health care decisions for the
patient; or
(3) If a probate court in a proceeding under
subsection 8 of this section finds that the involvement of
the person in decisions concerning the patient's health care
is contrary to instructions that the patient had
unambiguously, and without subsequent contradiction or
change, expressed before he or she became incapacitated.
Such a statement to the patient's physician or other health
care provider contemporaneously recorded in the patient's
medical record and signed by the patient's physician or
other health care provider shall be deemed such an
instruction, subject to the ability of a party to a
proceeding under subsection 8 of this section to dispute its
accuracy, weight, or interpretation.
5. (1) The designated health care decision-maker
shall make reasonable efforts to obtain information
regarding the patient's health care preferences from health
care providers, family, friends, or others who may have
credible information.
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(2) The designated health care decision-maker, and the
probate court in any proceeding under subsection 8 of this
section, shall always make health care decisions in the
patient's best interests, and if the patient's religious and
moral beliefs and health care preferences are known and not
inconsistent with the patient's best interests, in
accordance with those beliefs and preferences.
6. This section does not authorize the provision or
withholding of health care services that the patient has
unambiguously, without subsequent contradiction or change of
instruction, expressed to the patient's physician or other
health care provider that he or she would or would not want
at a time when such patient had capacity. Such a statement
to the patient's physician or other health care provider,
contemporaneously recorded in the patient's medical record
and signed by the patient's physician or other health care
provider, shall be deemed such evidence, subject to the
ability of a party to a proceeding under subsection 8 of
this section to dispute its accuracy, weight, or
interpretation.
7. A designated health care decision-maker shall be
deemed a personal representative for the purposes of access
to and disclosure of private medical information under the
Health Insurance Portability and Accountability Act of 1996
(HIPAA), 42 U.S.C. Section 1320d and 45 CFR 160-164.
8. Nothing in sections 404.1100 to 404.1110 shall
preclude any person interested in the welfare of a patient
including, but not limited to, a designated health care
decision-maker, a member of the classes listed in subsection
1 of this section regardless of priority, or a health care
provider or health care facility involved in the care of the
patient, from petitioning the probate court for the
appointment of a temporary or permanent guardian for the
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patient including expedited adjudication as provided in
chapter 475.
9. Pending the final outcome of proceedings initiated
under subsection 8 of this section, the designated health
care decision-maker, health care provider, or health care
facility shall not withhold or withdraw, or direct the
withholding or withdrawal of, health care, nutrition, or
hydration whose withholding or withdrawal, in reasonable
medical judgment, would result in or hasten the death of the
patient, would jeopardize the health or limb of the patient,
or would result in disfigurement or impairment of the
patient's faculties.
404.1105. 1. No designated health care decision-maker
may, with the intent of hastening or causing the death of
the patient, authorize the withdrawal or withholding of
nutrition or hydration supplied through either natural or
artificial means. A designated health care decision-maker
may authorize the withdrawal or withholding of artificially
supplied nutrition and hydration only if the physician and a
second licensed physician certify in the patient's medical
record based on reasonable medical judgment that:
(1) Artificially supplied nutrition or hydration are
not necessary for comfort, care, or the relief of pain and
would serve only to prolong artificially the dying process
and where death will occur within a short period of time
whether or not such artificially supplied nutrition or
hydration is withheld or withdrawn; or
(2) Artificially supplied nutrition or hydration
cannot be physiologically assimilated or tolerated by the
patient.
2. When tolerated by the patient and adequate to
supply the patient's need for nutrition or hydration,
natural feeding shall be the preferred method.
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3. The provisions of this section shall not apply to
subdivision (3) of section 459.010.
404.1106. If any of the individuals specified in
section 404.1104, the designated health care decision-maker,
or the physician believes the patient is no longer
incapacitated, the patient's physician shall reexamine the
patient and determine in accordance with reasonable medical
judgment whether the patient is no longer incapacitated,
shall certify the decision and the basis therefor in the
patient's medical record, and shall notify the patient, the
designated health care decision-maker, and the person who
initiated the redetermination of capacity. Rights of the
designated health care decision-maker shall end upon the
physician's certification that the patient is no longer
incapacitated.
404.1107. No health care provider or health care
facility that makes good faith and reasonable attempts to
identify, locate, and communicate with potential designated
health care decision-makers in accordance with sections
404.1100 to 404.1110 shall be subject to civil or criminal
liability or regulatory sanction for the effort to identify,
locate, and communicate with such potential designated
health care decision-makers.
404.1109. No designated health care decision-maker
shall withhold or withdraw health care from a pregnant
patient, consistent with existing law, as set forth in
section 459.025.
404.1110. Nothing in sections 404.1100 to 404.1110 is
intended to:
(1) Be construed as condoning, authorizing, or
approving euthanasia or mercy killing; or
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(2) Be construed as permitting any affirmative or
deliberate act to end a person's life, except to permit
natural death as provided by sections 404.1100 to 404.1110.