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Alabama House Bill HB191

Alabama 2022 Regular Session

Alabama House Bill HB191 Compare Versions

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11 1 HB191
2-2 216429-4
2+2 216429-2
33 3 By Representatives Oliver, Isbell, Reynolds, Shaver, Lovvorn,
44 4 Rafferty, Shiver, Lee and Lipscomb
55 5 RFD: Health
66 6 First Read: 01-FEB-22
77
8-Page 0 HB191
9-1
10-2 ENROLLED, An Act,
11-3 Relating to end-of-life care; to amend Section
12-4 22-8A-11, Code of Alabama 1975; to provide further for the
13-5 certification of a surrogate designated to make end-of-life
14-6 decisions for a terminally ill patient.
15-7 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
16-8 Section 1. Section 22-8A-11, Code of Alabama 1975,
17-9 is amended to read as follows:
18-10 "§22-8A-11.
19-11 "(a) If no advance directive for health care has
20-12 been made, or if no duly appointed health care proxy is
21-13 reasonably available, or if a valid advance directive for
22-14 health care fails to address a particular circumstance,
23-15 subject to the provisions of subsection (c) hereof, a
24-16 surrogate, in consultation with the attending physician, may,
25-17 subject to the provisions of Section 22-8A-6, determine
26-18 whether to provide, withdraw, or withhold life-sustaining
27-19 treatment or artificially provided nutrition and hydration if
28-20 all of the following conditions are met:
29-21 "(1) The attending physician determines, to a
30-22 reasonable degree of medical certainty, that:
31-23 "a. The individual is no longer able to understand,
32-24 appreciate, and direct his or her medical treatment, and
33-Page 1 HB191
34-1 "b. The individual has no hope of regaining such
35-2 ability.
36-3 "(2) Two physicians, one of whom is the attending
37-4 physician and one of whom shall be is qualified and
38-5 experienced in making such diagnosis, have personally examined
39-6 the individual and have diagnosed and certified in the medical
40-7 record that the individual has a terminal illness or injury or
41-8 has a condition of permanent unconsciousness.
42-9 "(3) The attending physician or other health care
43-10 provider and the surrogate have no actual knowledge of the
44-11 existence of a valid advance directive for health care that
45-12 would give guidance to the provider in treating the
46-13 individual's condition.
47-14 "(4) The treating physician determines, to a
48-15 reasonable degree of medical certainty, that withholding or
49-16 withdrawing the life-sustaining treatment or artificially
50-17 provided nutrition and hydration will not result in undue pain
51-18 or discomfort for the patient.
52-19 "(b) The surrogate shall be a competent adult.
53-20 "(c) The surrogate shall consult with the attending
54-21 physician and make decisions permitted herein that conform as
55-22 closely as possible to what the patient would have done or
56-23 intended under the circumstances, taking into account any
57-24 evidence of the patient's religious, spiritual, personal,
58-25 philosophical, and moral beliefs and ethics, to the extent
59-Page 2 HB191
60-1 these are known to the surrogate. Where possible, the
8+Page 0 1 ENGROSSED
9+2
10+3
11+4 A BILL
12+5 TO BE ENTITLED
13+6 AN ACT
14+7
15+8 Relating to end-of-life care; to amend Section
16+9 22-8A-11, Code of Alabama 1975; to provide further for the
17+10 certification of a surrogate designated to make end-of-life
18+11 decisions for a terminally ill patient.
19+12 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
20+13 Section 1. Section 22-8A-11, Code of Alabama 1975,
21+14 is amended to read as follows:
22+15 "§22-8A-11.
23+16 "(a) If no advance directive for health care has
24+17 been made, or if no duly appointed health care proxy is
25+18 reasonably available, or if a valid advance directive for
26+19 health care fails to address a particular circumstance,
27+20 subject to the provisions of subsection (c) hereof, a
28+21 surrogate, in consultation with the attending physician, may,
29+22 subject to the provisions of Section 22-8A-6, determine
30+23 whether to provide, withdraw, or withhold life-sustaining
31+24 treatment or artificially provided nutrition and hydration if
32+25 all of the following conditions are met:
33+26 "(1) The attending physician determines, to a
34+27 reasonable degree of medical certainty, that:
35+Page 1 1 "a. The individual is no longer able to understand,
36+2 appreciate, and direct his or her medical treatment, and
37+3 "b. The individual has no hope of regaining such
38+4 ability.
39+5 "(2) Two physicians, one of whom is the attending
40+6 physician and one of whom shall be is qualified and
41+7 experienced in making such diagnosis, have personally examined
42+8 the individual and have diagnosed and certified in the medical
43+9 record that the individual has a terminal illness or injury or
44+10 has a condition of permanent unconsciousness.
45+11 "(3) The attending physician or other health care
46+12 provider and the surrogate have no actual knowledge of the
47+13 existence of a valid advance directive for health care that
48+14 would give guidance to the provider in treating the
49+15 individual's condition.
50+16 "(4) The treating physician determines, to a
51+17 reasonable degree of medical certainty, that withholding or
52+18 withdrawing the life-sustaining treatment or artificially
53+19 provided nutrition and hydration will not result in undue pain
54+20 or discomfort for the patient.
55+21 "(b) The surrogate shall be a competent adult.
56+22 "(c) The surrogate shall consult with the attending
57+23 physician and make decisions permitted herein that conform as
58+24 closely as possible to what the patient would have done or
59+25 intended under the circumstances, taking into account any
60+26 evidence of the patient's religious, spiritual, personal,
61+27 philosophical, and moral beliefs and ethics, to the extent
62+Page 2 1 these are known to the surrogate. Where possible, the
6163 2 surrogate shall consider how the patient would have weighed
6264 3 the burdens and benefits of initiating or continuing
6365 4 life-sustaining treatment or artificially provided nutrition
6466 5 and hydration against the burdens and benefits to the patient
6567 6 of that treatment;, except, that any decision by a surrogate
6668 7 regarding the withdrawal or withholding of artificially
6769 8 provided nutrition and hydration from a person who is
6870 9 permanently unconscious shall only be made upon clear and
6971 10 convincing evidence of the patient's desires. The decision to
7072 11 provide, withdraw, or withhold life-sustaining treatment or
7173 12 artificially provided nutrition and hydration by the surrogate
7274 13 shall be made in good faith and without consideration of the
7375 14 financial benefit or burden which that will accrue to the
7476 15 surrogate or the health care provider as a result of the
7577 16 decision.
7678 17 "(d) Any of the following persons, in order of
7779 18 priority stated, when persons in prior classes are not
7880 19 available or willing to serve, may serve as a surrogate
7981 20 pursuant to the provisions of this section:
8082 21 "(1) A judicially appointed guardian, provided the
8183 22 appointment specifically authorizes the guardian to make
8284 23 decisions regarding the withholding of life-sustaining
8385 24 treatment or artificially provided nutrition and hydration.
8486 25 Nothing in this section subsection shall be construed to
85-Page 3 HB191
86-1 require a judicial appointment before a decision can be made
87-2 under this chapter. In addition, this section subsection shall
88-3 not be construed to require a judicially appointed guardian
89-4 who has not been specifically authorized by a court to make
90-5 decisions regarding the providing, withholding, or withdrawing
91-6 of life-sustaining treatment or artificially provided
92-7 nutrition and hydration to make those decisions or to seek
93-8 court approval to make those decisions;.
94-9 "(2) The patient's spouse, unless legally separated
95-10 or a party to a divorce proceeding;.
96-11 "(3) An adult child of the patient;.
97-12 "(4) One of the patient's parents;.
98-13 "(5) An adult sibling of the patient;.
99-14 "(6) Any one of the patient's surviving adult
100-15 relatives who are of the next closest degree of kinship to the
101-16 patient; or.
102-17 "(7) If the patient has no relatives known to the
103-18 attending physician or to an administrator of the facility
104-19 where the patient is being treated, and none can be found
105-20 after a reasonable inquiry, a committee composed of the
106-21 patient's primary treating physician and the ethics committee
107-22 of the facility where the patient is undergoing treatment or
108-23 receiving care, acting unanimously; or if there is no ethics
109-24 committee, by unanimous consent of a committee appointed by
110-25 the chief of medical staff or chief executive officer of the
111-Page 4 HB191
112-1 facility and consisting of at least the following: (i) the
113-2 primary treating physician; (ii) the chief of medical staff or
114-3 his or her designee; (iii) the patient's clergyman, if known
115-4 and available, or a member of the clergy who is associated
116-5 with, but not employed by or an independent contractor of the
117-6 facility, or a social worker associated with but neither
118-7 employed by nor an independent contractor of the facility. In
119-8 the event a surrogate decision is being made by an ethics
120-9 committee or appointed committee of the facility where the
121-10 patient is undergoing treatment or receiving care, the
122-11 facility shall notify the Alabama Department of Human
123-12 Resources for the purpose of allowing the department to
124-13 participate in the review of the matter pursuant to its
125-14 responsibilities under the Adult Protective Services Act,
126-15 Chapter 9 of Title 38.
127-16 "(e) The surrogate shall certify and attest under
128-17 oath that he or she has contacted one or more of the person or
129-18 persons who is or are in a class equal to or higher than the
130-19 surrogate and that each class has either consented or
131-20 expressed no objections to him or her acting as surrogate or
132-21 to the decision made by the surrogate. The certification shall
133-22 be included in the medical record.
134-23 "(f)(1) A surrogate's decision shall nevertheless be
135-24 valid if: (1) He he or she certifies that he or she is unable
136-25 to contact an individual whose consent or non-objection would
137-Page 5 HB191
138-1 otherwise be required because the individual's whereabouts are
139-2 unknown, because the individual is in a remote location and
140-3 cannot be contacted in sufficient time to participate in a
141-4 decision to provide, withhold, or withdraw the treatment, or
142-5 because the individual has been adjudged incompetent and
143-6 remains under that disability; and.
144-7 "(2) The surrogate certifies and attests to that
145-8 fact. In that case If the surrogate's decision is valid under
146-9 subdivision (1), the individual shall not be included in
147-10 determining whether the individual's class has consented or
148-11 expressed no objection as required pursuant to subsection (e).
149-12 "(g) A health care provider who provides, withholds,
150-13 or withdraws life-sustaining treatment or artificially
151-14 provided nutrition and hydration from a patient upon the
152-15 instructions of a surrogate who has certified and attested
153-16 that he or she has qualified as a surrogate as required by
154-17 this section shall not be subject to civil or criminal
155-18 liability or be found to have committed an act of
156-19 unprofessional conduct for providing, withdrawing, or
157-20 withholding the life-sustaining treatment or artificially
158-21 provided nutrition and hydration, nor shall the health care
159-22 provider be deemed to be under a duty to investigate the
160-23 truthfulness of the information certified and attested to by
161-24 the surrogate.
162-Page 6 HB191
163-1 "(h) A surrogate acting pursuant to this section
164-2 shall not be subject to civil or criminal liability or found
165-3 to have committed an act of unprofessional conduct for
166-4 decisions made in good faith to provide, withhold, withdraw,
167-5 continue, or institute life-sustaining treatment, or
168-6 artificially provided nutrition and hydration, unless the
169-7 surrogate falsely or fraudulently certifies or attests to
170-8 information required by this section.
171-9 "(i) The Alabama State Board of Health shall
172-10 prescribe by rule a form, which, when completed by a surrogate
173-11 and duly notarized and signed in the presence of two witnesses
174-12 who are at least 19 years of age, shall constitute the
175-13 certification of the surrogate as required by this chapter.
176-14 Any form created pursuant to this subsection shall
177-15 include the following statement: "Under penalty of perjury, I
178-16 affirm that I am exercising my best independent judgement and
179-17 agreeing to do what I believe the patient desires.
180-18 surrogate as required by this chapter. To be valid,
181-19 a certification requires the signature of the surrogate and
182-20 both witnesses. Any form created pursuant to this subsection
183-21 shall state the provisions set forth in subsections (a)
184-22 through (f) and include the following statement: "Under
185-23 penalty of perjury, I affirm that I am exercising my best
186-24 independent judgement and agreeing to do what I believe the
187-25 patient desires." Under no circumstances may the patient's
188-Page 7 HB191
189-1 health care provider, or an employee of the patient's health
190-2 care provider who is not a relative of the patient, serve as a
191-3 witness to the certification of the surrogate.
192-4 "(j) If any relative, health care provider who is
193-5 involved directly in the care of the patient, or other
194-6 individual who is involved directly in providing care to the
195-7 patient desires to dispute the authority or the decision of a
196-8 surrogate to determine whether to provide, withhold, or
197-9 withdraw medical treatment from a patient, he or she may file
198-10 an action for declaratory and injunctive relief in the circuit
199-11 court for the county where the patient is under treatment. A
200-12 health care provider who is confronted by more than one
201-13 individual who claims authority to act as surrogate for a
202-14 patient may file an action for declaratory relief in the
203-15 circuit court for the county where the patient is under
204-16 treatment.
205-17 "(k)(1) An individual who knowingly certifies and
206-18 attests to any information which is that meets all of the
207-19 following criteria shall be guilty of a Class C felony:
208-20 "(1) Required a. Is required by this chapter;.
209-21 "(2) Material b. Is material to his or her
210-22 authorization to act as a surrogate; and.
211-23 "(3) False, shall be guilty of a Class C felony c.
212-24 Is false.
213-Page 8 HB191
214-1 "(2) This The felony offense described in
215-2 subdivision (1) shall be in addition to, and not in lieu of,
216-3 penalties for other offenses of which the surrogate may be
217-4 guilty by reason of this conduct."
218-5 Section 2. This act shall become effective on the
219-6 first day of the third month following its passage and
220-7 approval by the Governor, or its otherwise becoming law.
221-Page 9 HB191
222-1
87+26 require a judicial appointment before a decision can be made
88+27 under this chapter. In addition, this section subsection shall
89+Page 3 1 not be construed to require a judicially appointed guardian
90+2 who has not been specifically authorized by a court to make
91+3 decisions regarding the providing, withholding, or withdrawing
92+4 of life-sustaining treatment or artificially provided
93+5 nutrition and hydration to make those decisions or to seek
94+6 court approval to make those decisions;.
95+7 "(2) The patient's spouse, unless legally separated
96+8 or a party to a divorce proceeding;.
97+9 "(3) An adult child of the patient;.
98+10 "(4) One of the patient's parents;.
99+11 "(5) An adult sibling of the patient;.
100+12 "(6) Any one of the patient's surviving adult
101+13 relatives who are of the next closest degree of kinship to the
102+14 patient; or.
103+15 "(7) If the patient has no relatives known to the
104+16 attending physician or to an administrator of the facility
105+17 where the patient is being treated, and none can be found
106+18 after a reasonable inquiry, a committee composed of the
107+19 patient's primary treating physician and the ethics committee
108+20 of the facility where the patient is undergoing treatment or
109+21 receiving care, acting unanimously; or if there is no ethics
110+22 committee, by unanimous consent of a committee appointed by
111+23 the chief of medical staff or chief executive officer of the
112+24 facility and consisting of at least the following: (i) the
113+25 primary treating physician; (ii) the chief of medical staff or
114+26 his or her designee; (iii) the patient's clergyman, if known
115+27 and available, or a member of the clergy who is associated
116+Page 4 1 with, but not employed by or an independent contractor of the
117+2 facility, or a social worker associated with but neither
118+3 employed by nor an independent contractor of the facility. In
119+4 the event a surrogate decision is being made by an ethics
120+5 committee or appointed committee of the facility where the
121+6 patient is undergoing treatment or receiving care, the
122+7 facility shall notify the Alabama Department of Human
123+8 Resources for the purpose of allowing the department to
124+9 participate in the review of the matter pursuant to its
125+10 responsibilities under the Adult Protective Services Act,
126+11 Chapter 9 of Title 38.
127+12 "(e) The surrogate shall certify and attest under
128+13 oath that he or she has contacted one or more of the person or
129+14 persons who is or are in a class equal to or higher than the
130+15 surrogate and that each class has either consented or
131+16 expressed no objections to him or her acting as surrogate or
132+17 to the decision made by the surrogate. The certification shall
133+18 be included in the medical record.
134+19 "(f)(1) A surrogate's decision shall nevertheless be
135+20 valid if: (1) He he or she certifies that he or she is unable
136+21 to contact an individual whose consent or non-objection would
137+22 otherwise be required because the individual's whereabouts are
138+23 unknown, because the individual is in a remote location and
139+24 cannot be contacted in sufficient time to participate in a
140+25 decision to provide, withhold, or withdraw the treatment, or
141+26 because the individual has been adjudged incompetent and
142+27 remains under that disability; and.
143+Page 5 1 "(2) The surrogate certifies and attests to that
144+2 fact. In that case If the surrogate's decision is valid under
145+3 subdivision (1), the individual shall not be included in
146+4 determining whether the individual's class has consented or
147+5 expressed no objection as required pursuant to subsection (e).
148+6 "(g) A health care provider who provides, withholds,
149+7 or withdraws life-sustaining treatment or artificially
150+8 provided nutrition and hydration from a patient upon the
151+9 instructions of a surrogate who has certified and attested
152+10 that he or she has qualified as a surrogate as required by
153+11 this section shall not be subject to civil or criminal
154+12 liability or be found to have committed an act of
155+13 unprofessional conduct for providing, withdrawing, or
156+14 withholding the life-sustaining treatment or artificially
157+15 provided nutrition and hydration, nor shall the health care
158+16 provider be deemed to be under a duty to investigate the
159+17 truthfulness of the information certified and attested to by
160+18 the surrogate.
161+19 "(h) A surrogate acting pursuant to this section
162+20 shall not be subject to civil or criminal liability or found
163+21 to have committed an act of unprofessional conduct for
164+22 decisions made in good faith to provide, withhold, withdraw,
165+23 continue, or institute life-sustaining treatment, or
166+24 artificially provided nutrition and hydration, unless the
167+25 surrogate falsely or fraudulently certifies or attests to
168+26 information required by this section.
169+Page 6 1 "(i) The Alabama State Board of Health shall
170+2 prescribe by rule a form, which, when completed by a surrogate
171+3 and duly notarized, shall constitute the certification of the
172+4 surrogate as required by this chapter.
173+5 Any form created pursuant to this subsection shall
174+6 include the following statement: "Under penalty of perjury, I
175+7 affirm that I am exercising my best independent judgement and
176+8 agreeing to do what I believe the patient desires.
177+9 "(j) If any relative, health care provider who is
178+10 involved directly in the care of the patient, or other
179+11 individual who is involved directly in providing care to the
180+12 patient desires to dispute the authority or the decision of a
181+13 surrogate to determine whether to provide, withhold, or
182+14 withdraw medical treatment from a patient, he or she may file
183+15 an action for declaratory and injunctive relief in the circuit
184+16 court for the county where the patient is under treatment. A
185+17 health care provider who is confronted by more than one
186+18 individual who claims authority to act as surrogate for a
187+19 patient may file an action for declaratory relief in the
188+20 circuit court for the county where the patient is under
189+21 treatment.
190+22 "(k)(1) An individual who knowingly certifies and
191+23 attests to any information which is that meets all of the
192+24 following criteria shall be guilty of a Class C felony:
193+25 "(1) Required a. Is required by this chapter;.
194+26 "(2) Material b. Is material to his or her
195+27 authorization to act as a surrogate; and.
196+Page 7 1 "(3) False, shall be guilty of a Class C felony c.
197+2 Is false.
198+3 "(2) This The felony offense described in
199+4 subdivision (1) shall be in addition to, and not in lieu of,
200+5 penalties for other offenses of which the surrogate may be
201+6 guilty by reason of this conduct."
202+7 Section 2. This act shall become effective on the
203+8 first day of the third month following its passage and
204+9 approval by the Governor, or its otherwise becoming law.
205+Page 8 1
223206 2
224-3
225-4
226-Speaker of the House of Representatives
227-
228-5
229-6 President and Presiding Officer of the Senate
230-House of Representatives7
231-I hereby certify that the within Act originated in8
232-9 and was passed by the House 08-FEB-22, as amended.
207+House of Representatives3
208+Read for the first time and re-4
209+5 ferred to the House of Representa-
210+tives committee on Health .........6 .......01-FEB-22
211+ 7
212+Read for the second time and placed8
213+on the calendar....................9 .......02-FEB-22
233214 10
234-11 Jeff Woodard
235-12 Clerk
236-13
215+Read for the third time and passed11
216+as amended.........................12 .......08-FEB-22
217+Yeas 82, Nays 7, Abstains 1013
237218 14
238-Senate15 17-MAR-22 Amended and Passed
239-House16 07-APR-22
240-Concurred in Sen-
241-ate Amendment
219+15 Jeff Woodard
220+16 Clerk
242221 17
243-Page 10
222+Page 9