SB 578

This bill allows a patient’s representative to consent to an admission of an incapacitated individual from a hospital to a nursing home or community-based residential facility without a petition for guardianship or protective placement and allows a patient’s representative to make health care decisions, enroll the patient in the Medical Assistance program, and authorize expenditures related to health care on behalf of an incapacitated individual without certain time limitations that are imposed under current law if certain conditions are met.

Under current law, an individual who is either related to an incapacitated individual as provided under current law or is an adult close friend of an incapacitated individual may consent to admission, directly from a hospital to a nursing home or community-based residential facility, of the incapacitated individual who does not have a valid power of attorney for health care and who has not been adjudicated incompetent in this state if certain conditions apply, including that the individual for whom admission is sought is not diagnosed as developmentally disabled or as having a mental illness at the time of the proposed admission, that the incapacitated individual does not verbally object to or otherwise actively protest the admission, and that petitions for guardianship for the individual and for protective placement of the individual are filed prior to the proposed admission. A determination that an individual is incapacitated must be made by two physicians or one physician and one psychologist who personally examine the individual. An individual who consents to admission of an incapacitated individual may make health care decisions to the same extent as a guardian of the person and authorize expenditures related to health care to the same extent as a guardian of the estate until 60 days after the admission to the facility, discharge of the incapacitated individual from the facility, or appointment of a guardian for the incapacitated individual, whichever occurs first.

The bill allows a patient’s representative to consent to an admission of an incapacitated individual from a hospital to a nursing home or community-based residential facility as provided under current law without petitions for guardianship or protective placement of the incapacitated individual being filed if 1) the incapacitated individual is admitted directly from a hospital inpatient unit, 2) the facility to which the incapacitated individual is admitted notifies the corporation counsel for the county in which the incapacitated patient resides of the admission within 72 hours of admission, and 3) the patient’s representative signs, subject to penalty of false swearing, a declaration that contains certain information including a written acknowledgment that the patient’s representative may make decisions or authorize expenditures as provided under the bill and promptly provides the signed declaration to all of the incapacitated individual’s family members that can be reasonably contacted, the discharging hospital and the accepting facility, the corporation counsel for the county in which the incapacitated individual resides, and the adult-at-risk agency for the county in which the incapacitated individual resides. Further, the bill allows a patient’s representative to make health care decisions, enroll the incapacitated individual in the Medical Assistance program, and authorize expenditures related to health care without the time limitations that apply to other direct admissions under current law if the patient’s representative satisfies the conditions for admission provided under the bill. The authority of a patient’s representative to make health care decisions and authorize expenditures related to health care under the bill ends if a court appoints a guardian to make such decisions, the incapacitated individual is discharged to a setting that is not a facility, a health care power of attorney that was not identified at the time that the patient’s representative was established is identified, or the individual is determined to no longer be incapacitated.

The bill provides that a determination that an individual is incapacitated for the purposes of admitting the individual directly from a hospital to a facility may be made by two physicians or by one physician and one advanced practice clinician, which is defined to mean either a psychologist, a registered nurse who is currently certified as a nurse practitioner, or a physician assistant who a physician responsible for overseeing the physician assistant’s practice affirms is competent to conduct evaluations of the capacity of patients to manage health care decisions. Any physician or advanced practice clinician who determines that an individual is incapacitated for the purposes of admitting the individual directly from a hospital to a facility must, if the individual is admitted to a facility as provided under the bill, prepare a written statement on a form prescribed by the DHS stating that the physician or advanced practice clinician personally examined the incapacitated individual, the date and location that the physician or advanced practice clinician determined the individual is incapacitated, the medical conditions of the individual, if any, that led the physician or advanced practice clinician to conclude that the individual is incapacitated, the physician’s or advanced practice clinician’s office address and contact information, and any other information identified by DHS. A copy of the written statement must be included in the incapacitated individual’s patient health care records and must be sent, within 72 hours of the incapacitated individual’s admission to a facility, to the corporation counsel for the county in which the incapacitated individual resides and the adult-at-risk agency for the county in which the incapacitated individual resides. The bill provides that any physician or psychologist who examines an individual who is a proposed ward pursuant to a petition for guardianship must request and review any written statements prepared for the proposed ward and received by an adult-at-risk agency as provided under the bill.

The bill provides that a petitioner for temporary guardianship of a proposed ward admitted to a facility under the alternative procedure set forth in the bill must, as soon as practicable after filing the petition, request a copy of any written statement held by the corporation counsel for the county in which the proposed ward resided prior to admission to the facility. The corporation counsel must provide a copy of any written statement relating to the proposed ward upon the request of a petitioner who has filed a petition in a court of competent jurisdiction for a temporary guardianship of the proposed ward. The petitioner must submit to the court either a copy, under seal, of any written statement received for in camera inspection by the court or a statement that the petitioner requested any relevant written statement but no such document was located. Under the bill, the court must inspect, in camera, any submitted written statement, and unless the court determines that a written statement in which a physician or advanced practice clinician determined the proposed ward is no longer incapacitated has been submitted to the court and indicates that the proposed ward’s circumstances have changed from those described in the written statement submitted to the court in which a physician or advanced practice clinician determined the individual is incapacitated, the submitted written statement containing the determination that the individual is incapacitated constitutes a prima facie showing, for purposes of temporary guardianship proceedings, that the proposed ward’s particular situation requires immediate appointment of a temporary guardian of the person or estate, notwithstanding that the document may be uncorroborated hearsay. The submitted written statement is self authenticating and does not require foundational or other testimony for its admissibility. However, the prima facie evidence may be rebutted by presenting information that affirmatively indicates a lack of trustworthiness in the document or information that the proposed ward’s circumstances have changed. The privilege between health care providers and patients does not apply to these written statements.

The bill provides that no patient’s representative may consent to admission for an incapacitated individual in the manner established in the bill after three years following the effective date of the bill.

Finally, the bill provides that an individual who consents to admission of an incapacitated individual as set forth under current law may enroll the incapacitated individual in the Medical Assistance program in addition to the authority provided under current law to make health care decisions to the same extent as a guardian of the person and authorize expenditures related to health care to the same extent as a guardian of the estate.