WEST virginia legislature

2019 regular session

Introduced

House Bill 2493

By Delegates Rowan, Lovejoy, Fast, Kessinger, Pack, Sypolt, Butler and Wilson

[Introduced January 17, 2019; Referred
to the Committee on Health and Human Resources then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-54-1, §16-54-2, §16-54-3, and §16-54-4, all relating to creating the Nondiscrimination in Involuntary Denial of Treatment Act; requiring the provision of medical treatment under certain circumstances; requiring the disclosure of policies related to the life-preserving treatment a patient may receive or be denied; and requiring the Department of Health and Human Resources to maintain and report on certain information.

Be it enacted by the Legislature of West Virginia:

Article 54. NonDiscrimination in Involuntary Denial of Treatment Act.

§16-54-1. Short title.

This act may be known and cited as the “Nondiscrimination in Involuntary Denial of Treatment Act.”

§16-54-2. Discriminatory denial of life-preserving treatment.

(a) If a patient, the terms of a patient's advance directive, or a person legally authorized to make health care decisions on behalf of a patient directs the provision of medical treatment or nutrition or hydration, the denial of which would, in reasonable medical judgment, be likely to result in or hasten the death of the patient, the patient's physician or health care facility may not deny provision of such treatment, nutrition or hydration:

(1) On the basis of a view that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill; or

(2) On the basis of the physician's or health care provider's disagreement with how the patient or individual authorized to act on the patient's behalf values the trade-off between extending the length of the patient's life and the risk of disability.

(b) Nothing in this section requires the provision of health care:

(1) That the physician or health care facility is physically or legally unable to provide, or health care that the physician or other health care facility is physically or legally unable to provide without thereby denying the same health care to another patient;

(2) Against the wishes of the patient or the person legally authorized to make health care decisions for the patient;

(3) If in reasonable medical judgment the health care is futile because withholding or withdrawing the health care would not cause or hasten the death of the patient; or

(4) If in reasonable medical judgment the health care service is medically inappropriate because providing it to the patient would create a greater risk of causing or hastening the death of the patient than would withholding or withdrawing it.

(c) A cause of action for injunctive relief may be maintained against any physician who or health care facility which is reasonably believed to be about to violate, is in the course of violating, or has violated this section by an affected patient or a person legally authorized to make health care decisions on behalf of the patient. However, a violation of this section does not constitute negligence per se for purposes of a civil action for damages. In an action pursuant to this subsection, if the plaintiff pleads a prima facie case, the physician or other health care provider may defend his or her or its actions by pleading a legitimate, nondiscriminatory reason or reasons that provided a basis for the denial of treatment, subject to an opportunity for the plaintiff to plead that the reason or reasons for the denial of treatment are discriminatory in their application.

§16-54-3. Disclosure requirements.

(a) Upon the request of a patient or prospective patient, or of a person legally authorized to make health care decisions on behalf of a patient or prospective patient, a health care facility shall disclose in writing any policies related to the life-preserving treatment a patient may receive or be denied, including any policies related to health care deemed futile, inappropriate, or nonbeneficial.

(b) At the time a physician or health care facility communicates unwillingness to comply with a direction to provide life-sustaining treatment, nutrition or hydration to a patient by the patient, the terms of the patient's advance directive, or a person legally authorized to make health care decisions on behalf of a patient, the physician or health care facility shall provide a copy of the then-current registry list posted on the Department of Health and Human Resources’ website under subsection (c) of this section, together with a written explanation of the reasons for unwillingness to comply.

(c) The Department of Health and Human Resources shall maintain a registry listing the identity of and contact information for organizations, inside and outside of this state, that have voluntarily notified the department that they may provide information and assistance to patients and persons legally authorized to make health care decisions on behalf of patients in cases in which the patient's health care provider may be unwilling to comply with the patient's or surrogate's wishes regarding the provision, withholding, or withdrawal of life-sustaining medical treatment, such as: referrals for independent medical examinations and medical record reviews, referrals for patient transfer, assistance with ethics committee reviews or judicial review, counseling, or mediation. Each organizational listing shall provide a brief description of the types of assistance it offers. The listing of an organization in the registry does not obligate the organization to provide assistance with regard to any particular patient.

(d) The Department of Health and Human Resources shall post the current registry list on its website in a form appropriate for easy comprehension by patients and persons responsible for the health care decisions of patients and shall provide a clearly identifiable link from its home page to the registry page. The registry list shall include the following disclaimer:

“This registry lists groups that have indicated to the Department of Health and Human Resources their interest in assisting patients and their health care agents and surrogates in the circumstances described, and is provided for information purposes only. Neither the Department of Health and Human Resources nor the State of West Virginia endorses or assumes any responsibility for any representation, claim, or act of the listed providers or groups.”

§16-54-4. Reporting.

(a) The Department of Health and Human Resources shall propose rules for legislative approval under 29A-3-1 et seq. of this code requiring reporting by health care facilities of cases in which they do not comply with a directive to provide life-sustaining treatment, nutrition or hydration to a patient by the patient, the terms of the patient's advance directive, or a person legally authorized to make health care decisions on behalf of a patient. The rules shall provide for annual reporting of:

(1) The total number of cases during the reporting period;

(2) For each case:

(A) The diagnosis, race, gender, age, national origin, any disability, and financial status, including insurance status, of the patient;

(B) The specific health care denied and the reasons for the denial;

(C) The type or types of health care provider treating the patient;

(D) The type or types of health care provider, if any, to which a transfer was sought;

(E) The number of other health care providers contacted and asked to consider accepting transfer;

(F) To the extent known to the reporting health care provider, the reasons given by other health care providers contacted for refusing to accept or for accepting transfer; and

(G) Whether a transfer occurred.

(3) For each case in which a transfer was not made:

(A) Whether the patient died;

(B) The number of days between the date on which the patient or person legally authorized to make health care decisions on behalf of the patient was informed of the decision not to comply and the date of the patient's death, if applicable; and

(C) Whether directed life-sustaining care had been withdrawn or withheld before the patient's death.

(b) The Department of Health and Human Resources shall annually issue a report, which is available on its website, summarizing the data reported to it under subsection (a) of this section for the previous year, in a manner that preserves confidentiality concerning any individual patient, unless the patient or person legally authorized to make health care decisions on behalf of the patient has waived that confidentiality.

NOTE: The purpose of this bill is to create the Nondiscrimination in Involuntary Denial of Treatment Act.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.