SB 19-201 — Open Discussions About Adverse Health Care Incidents

First Regular Session Seventy-second General Assembly STATE OF COLORADO REENGROSSEDENGROSSED This Version Includes All Amendments Adopted on Second Reading in the House of Introduction LLS NO.

19-0976.01 Yelana Love x2295 SENATE BILL 19-201 SENATE SPONSORSHIP Pettersen and Tate, Bridges, Court, Gardner, Ginal, Lee, Moreno, Woodward HOUSE SPONSORSHIP Tipper and McKean, Senate Committees House Committees Judiciary A BILL FOR AN ACT C ONCERNING THE CREATION OF A PROCESS BY WHICH CERTAIN PARTIES TO AN ADVERSE HEALTH CARE INCIDENT MAY DISCUSS POTENTIAL OUTCOMES .

This summary applies to this bill as introduced and does i notreflectanyamendmentsthatmaybesubsequentlyadopted.Ifthisbill a 1 E R 2 passes third reading in the house of introduction, a bill summary that A r 8, applies to the reengrossed version of this bill will be available at N 3 h S e r http://leg.colorado.gov.) n M m A The bill creates the "Colorado Candor Act" (Act).

The Act establishes a process for the communication between a patient and a health care provider or health facility after an adverse health care ig incident.

The bill provides that the communications under the Act are ad 1e 0 privileged and confidential, are inadmissible as evidence in any ET R 2, TA d 7 N 2 2 Shading denotes HOUSE amendment.

SE ed rc Capital letters or bold & italic numbers indicate new material to be added to existing statune.a Dashes through the words indicate deletions from existing statute.

Dashes through the words indicate deletions from existing statute.

-2- 201 (4) (a)"OPEN "PENDISCUSSIO" DISCUSSION"MEANSMEANS ALL COMMUNICATIONS THAT AREMADEUNDERSECTIONARE 25-51-103ANDINCLUDESMEMORANDAMADEUNDERSECTION WORK25-51-103ANDINCLUDESALLMEMORANDA ,WORK PRODUCT ,DOCUMENTS ,AND,ANDOTHERMATERIALSTHATAREPREPAREDFOR OTHER, MATERIALSOR THATSUBMITTED :IN THE COURSE OF OR IN CONNECTION WITH , COMMUNICATIONS UNDER SECTION 25-51-103.

(I)(5) ARE"PATIENT" PREPAREDMEANS FOR,A ORPERSON SUBMITTEDWHO INRECEIVES THEHEALTH COURSECARE OFFROM A HEALTH CARE PROVIDER , OR INTHE CONNECTIONPERSON WITHS ,COMMUNICATIONSLEGAL UNDERREPRESENTATIVEIFTHEPERSONISANUNEMANCIPATEDMINORUNDERTHE SECTIONAGE 25-51-103;ANDOF (II)EIGHTEEN AENOTMATERIALSDESCRIBEDINSUBSECTION,DECEASED (4)(bOFTHIS,OR SECTION.INCAPACITATED .

(b) "O PEN DISCUSSIO" DOES NOT INCLUDE COMMUNICATIONS , MEMORANDA WORKPRODUCT ,DOCUMENTS ,OROTHERMATERIALSTHAT ARE OTHERWISE SUBJECT TO DISCOVERY AND THAT WERE NOT PREPARED SPECIFICALLYFORUSEINANOPENDISCUSSIONUNDERSECTION 25-51-103 AS SPECIFIED IN SECTIO25-51-105 (2).

(5) "PATIENT "MEANS A PERSON WHO RECEIVES HEALTH CARE FROM A HEALTH CARE PROVIDER , OR THE PERSON S LEGAL REPRESENTATIVEIFTHEPERSONISANUNEMANCIPATEDMINORUNDERTHE AGE OF EIGHTEEN ,DECEASED , OR INCAPACITATED.

(6) "PUBLIC EMPLOYEEEMPLOYEE" "HASHAS THE SAME MEANING AS IN SECTION 24-10-10324-10-103(4). (4).

(7) "P"PUBLIC UBLICENTITY" ENTITY"HASHAS THE SAME MEANING AS IN SECTION 24-10-10324-10-103(5). (5).

Engaginginanopendiscussion.Engagingin an open discussion.(1) IADVERSE HEALTHCARE INCIDENTOCCURS ,AHEALTHCAREPROVIDERINVOLVEDIN THE ADVERSE HEALTH CARE INCIDENT ,OR THE HEALTH CARE PROVIDER JOINTLY WITH THE HEALTH FACILITY INVOLVED IN THE ADVERSE HEALTH CAREINCIDENT ,MAYPROVIDETHEPATIENTWITHWRITTENNOTICEOFTHE DESIRE OF THE HEALTH CARE PROVIDER , OR OF THE HEALTH CARE PROVIDER JOINTLY WITH THE HEALTH FACILIT,TO ENTER INTO AN OPEN DISCUSSION UNDER THIS ARTICL51.

(1)(2) IFANADVERSEAHEALTHCAREPROVIDERORHEALTHFACILITYTHATCHOOSES HEALTHCAREINCIDENTOCCURSTO ,AHEALTHCAREPROVIDE PROVIDERINVOLVEDIN THE ADVERSENOTICE HEALTHSPECIFIED CAREIN INCIDENTSUBSECTIO(1)OF ,ORTHIS THESECTION HEALTHSHALL CARESEND PROVIDERTHE JOINTLYNOTICE WITHWITHIN THEONE HEALTHHUNDRED FACILITYEIGHTY INVOLVEDDAYS INAFTER THE ADVERSEDATEONWHICHTHEHEALTHCAREPROVIDERKNEW HEALTH,ORTHROUGHTHEUSE CAREINCIDENT ,MAYPROVIDETHEPATIENTWITHWRITTENNOTICEOFTHE -3- 201 DESIRE OF THEDILIGENCE HEALTHSHOULD CAREHAVE PROVIDERKNOWN , OR OF THE ADVERSE HEALTH CARE PROVIDERINCIDENT JOINTLY. WITH THE HEALTH FACILITY,TO ENTER INTO AN OPEN DISCUSSION UNDER THIS ARTICLE 51.

(2)HE AHEALTHCAREPROVIDERORHEALTHFACILITYTHATCHOOSES TO PROVIDE THE NOTICE SPECIFIEDMUST ININCLUDE: SUBSECTION (1)OF THIS SECTION SHALL SEND THE NOTICE WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE DATEONWHICHTHEHEALTHCAREPROVIDERKNEW ,ORTHROUGHTHEUSE OF DILIGENCE SHOULD HAVE KNOWN ,OF THE ADVERSE HEALTH CARE INCIDENT .

HE(a) NOTICEANEXPLANATIONOFTHEPATIENT MUSTSRIGHTTORECEIVE INCLUDEACOPY :OF THE MEDICAL RECORDS RELATED TO THE ADVERSE HEALTH CARE INCIDENT AND OF THE PATIENT'S RIGHT TO AUTHORIZE THE RELEASE OF THE PATIENT S MEDICAL RECORDS RELATED TO THE ADVERSE HEALTH CARE INCIDENT TO ANY THIRD PARTY ;

(a)(b) ANEXPLANATIONOFTHEPATIENTA 'SRIGHTTORECEIVEACOPYSTATEMENT OFREGARDING THE MEDICAL RECORDS RELATED TO THE ADVERSE HEALTH CARE INCIDENT AND OF THE PATIENT S RIGHT TO AUTHORIZESEEK THELEGAL RELEASECOUNSEL OFAND THETO PATIENTHAVE SLEGAL MEDICALCOUNSEL RECORDSPRESENT RELATEDTHROUGHOUT TO THE ADVERSEPROCESS HEALTHSPECIFIED CAREIN INCIDENTTHIS TOARTICL51; ANY THIRD PARTY ;

(b)(c) AACOPYOFSECTIONS STATEMENT13-80-102.5AND REGARDING13-80-112 WITHNOTICE THAT THE PATIENTTIME 'SFOR RIGHTA PATIENT TO SEEKBRING LEGALA COUNSELLAWSUIT IS LIMITED AND TOWILL HAVENOT LEGALBE COUNSELEXTENDED PRESENTMERELY THROUGHOUTBY THEENGAGINGIN PROCESSAN SPECIFIEDOPEN INDISCUSSION UNDER THIS ARTICL51;ARTICLE51;

(c)(d) ACOPYOFSECTIONSIF 13-80-102.5ANDTHE 13-80-112WITHNOTICEHEALTH THATCARE THEPROVIDER TIMEOR FORHEALTH FACILITY IS A PATIENTPUBLIC TOENTITY BRINGOR A LAWSUITPUBLIC ISEMPLOYEE, LIMITEDA ANDCOPY WILLOF SECTION24-10-109, TOGETHER WITH THE STATEMENT THAT THE DEADLINE FOR FILING THE NOTICE REQUIRED UNDER SECTION 24-10-109WILL NOT BE EXTENDED MERELY BY ENGAGINGINENGAGING IN AN OPEN DISCUSSION UNDER THIS ARTICLEARTICLE51; 51;

(d)(e) IFNOTICE THETHAT HEALTHIFTHEPATIENTCHOOSESTOENGAGEINANOPEN CAREDISCUSSIONWITHTHE PROVIDERHEALTHCARE ORPROVIDERORHEALTHFACILITY HEALTH,ALL FACILITYCOMMUNICATIONS ISMADE AIN PUBLICTHE ENTITYCOURSE OR A PUBLIC EMPLOYEE ,A COPY OF SECTION 24-10-109, TOGETHER WITH THE STATEMENTDISCUSSION THAT THE DEADLINE FOR FILING THE NOTICE REQUIRED UNDER SECTIONTHIS 24-10-109ARTICLE WILL51,INCLUDINGCOMMUNICATIONSREGARDINGTHEINITIATIONOF NOT BE EXTENDED BY ENGAGING IN AN OPEN DISCUSSION UNDER,ARE: THIS ARTICLE 51;

(e) NOTICETHATIFTHEPATIENTCHOOSESTOENGAGE INANOPEN -4- 201 DISCUSSIONWITHTHE HEALTHCARE PROVIDERORHEALTHFACILITY ,ALL COMMUNICATIONS MADE IN THE COURSE OF THE DISCUSSION UNDER THIS ARTICLE 51,INCLUDINGCOMMUNICATIONSREGARDINGTHEINITIATIONOF AN OPEN DISCUSSION,ARE:

(II) NTSUBJECTTODISCOVERYNOTSUBJECTTODISCOVERY ,SUBPOENASUBPOENA OROTHERMEANSOF LEGAL COMPULSION FOR RELEASE ;AND -4- 201 (III) NOT ADMISSIBLE AS EVIDENCE IN A PROCEEDING ARISING DIRECTLY OUT OF THE ADVERSE HEALTH CARE INCIDENT ,INCLUDING A JUDICIAL,ADMINISTRATIVE,OR ARBITRATION PROCEEDINGPROCEEDING;AND ;AND (f) ANADVISEMENTTHATCOMMUNICATIONSAADVISEMENTTHATCOMMUNICATIONS MEMORANDA,MEMORANDA WORK,WORK PRODUCT ,DOCUMENTS ,AND OTHER MATERIALS THAT ARE OTHERWISE SUBJECT TO DISCOVERY AND NOT PREPARED SPECIFICALLY FOR USE IN AN OPEN DISCUSSION UNDER THIS SECTION ARE NOT CONFIDENTIA.CONFIDENTI.L (3) (a)FTHE PATIENTAGREESINWRITINGTOENGAGE INANOPEN DISCUSSION UNDER THIS ARTICLE 51, THE PATIENT ,HEALTH CARE PROVIDER ,OR HEALTH FACILITY ENGAGED IN THE OPEN DISCUSSION MAY INCLUDE ADDITIONAL PARTIES IN THE OPEN DISCUSSI.N (b) THEHEALTHCAREPROVIDER ORTHEHEALTHCAREPROVIDER JOINTLYWITHTHE HEALTHFACILITY ,INVOLVEDINTHE ADVERSE HEALTH CARE INCIDENT SHALL ADVISE ALL ADDITIONAL PARTIES IN WRITING OF THE NATURE OF COMMUNICATIONS MADE IN ACCORDANCE WITH THIS ARTICLE 51AS SPECIFIED IN SECTI25-51-105.

(3)(c) (a)ADDITIONALPARTIESSHALLACKNOWLEDGETHEADVISEMENT IHEPATIENTAGREESINWRITINGTOENGAGEIN INANOPENSUBSECTION(3)(b)OF DISCUSSION UNDER THIS ARTICLESECTION 51, THE PATIENT, HEALTH CARE PROVIDER ,OR HEALTH FACILITY ENGAGED IN THEWRITI.G OPEN(d) DISCUSSIONT MAYHE INCLUDEADVISEMENT ADDITIONALPROVIDED PARTIES IN THEACCORDANCE OPENWITH DISCUSSI.NTHIS (b)SUBSECTION THEHEALTHCAREPROVIDER(3)MUST ,ORTHEHEALTHCAREPROVIDERINDICATE JOINTLYWITHTHEHEALTHFACILITYTHAT ,INVOLVEDINTHECOMMUNICATIONS ADVERSEHEALTH,MEMORANDA CARE, INCIDENTWORK SHALLPRODUCT ADVISE,DOCUMENTS ALL, ADDITIONALAND PARTIESOTHER INMATERIALS WRITINGTHAT OFARE THEOTHERWISESUBJECTTODISCOVERYANDNOTPREPAREDSPECIFICALLYFOR NATUREUSEINANOPENDISCUSSIONUNDERTHISSECTIONARENOTCONFIDENTIAL OF. COMMUNICATIONS MADE IN ACCORDANCE WITH THIS ARTICLE 51AS SPECIFIED IN SECTIO25-51-105.

(c) ADDITIONALPARTIESSHALLACKNOWLEDGETHEADVISEMENT IN SUBSECTION (3)(bOF THIS SECTION IN WRITI.G (d) T HE ADVISEMENT PROVIDED IN ACCORDANCE WITH THIS SUBSECTION (3)MUST INDICATE THAT COMMUNICATIONS ,MEMORANDA , -5- 201 WORK PRODUCT , DOCUMENTS ,AND OTHER MATERIALS THAT ARE OTHERWISESUBJECTTODISCOVERYANDNOTPREPAREDSPECIFICALLYFOR USEINANOPENDISCUSSIONUNDERTHISSECTIONARENOTCONFIDENTIAL .

(a) INVESTIGATE HOW THE ADVERSE HEALTH CARE INCIDENT OCCURREDANDGATHERINFORMATIONREGARDINGTHEMEDICALCAREOR -5- 201 TREATMENT PROVIDED ;

(b) DISCLOSED ISCLOSE THE RESULTS OF THE INVESTIGATION TO THE PATIENT;PATIENT ;

(c) O PENLY COMMUNICATE TO THE PATIENT THE STEPS THE HEALTH CARE PROVIDER OR HEALTH FACILITY WILL TAKE TO PREVENT FUTURE OCCURRENCES OF THE ADVERSE HEALTH CARE INCIDENT;INCIDENT ;

(d) DETERMINED ETERMINE EITHER OF THE FOLLOWIN:FOLLOWING:

(I) TATTHAT NO OFFER OFCOMPENSATION FOR THE ADVERSE HEALTH CARE INCIDENT IS WARRANTED;ORWARRANTED ;OR (II) TATANOFFEROFCOMPENSATIONFORTHEADVERSEHEALTH CARE INCIDENT IS WARRANTED.WARRANTED .

(5) FAHEALTHCAREPROVIDERORHEALTHFACILITYDETERMINES THAT NO OFFER OF COMPENSATION IS WARRANTED ,,THE THE HEALTH CARE PROVIDER OR HEALTH FACILITY SHALL ORALLY COMMUNICATE THAT DECISION WITH THE PATIEN.PATIENT.

F A HEALTH CARE PROVIDER OR HEALTH FACILITYDETERMINESTHATANOFFEROFCOMPENSATIONISWARRANTED , THE HEALTH CARE PROVIDER OR HEALTH FACILITY SHALL PROVIDE THE PATIENT WITH A WRITTEN OFFER OF COMPENSATIO.COMPENSATION .

(6) IIF A HEALTH CARE PROVIDER OR HEALTH FACILITY MAKES AN OFFER OF COMPENSATION UNDER SUBSECTION (5)OF THIS SECTION AND -6- 201 THEPATIENTISNOTREPRESENTEDBYLEGALCOUNSEL ,THEHEALTHCARE PROVIDER OR HEALTH FACILITY SHAL:SHALL:

(a) ADVISE THE PATIENT OF THE PATIESPATIENS RIGHT TO SEEK LEGAL COUNSEL REGARDING THE OFFER OF COMPENSATION ;AND (b) PROVIDE NOTICE THAT THE PATIENT MAY BE LEGALLY REQUIRED TO REPAY MEDICALAND OTHEREXPENSESTHAT WERE PAID BY A THIRD PARTY,INCLUDING PRIVATE HEALTH INSURANCE,MEDICAREINSURANCE OR,MEDICARE MEDICAID,OR .-6- 201 MEDICAID.

(7) EXCEPT FORANOFFEROFCOMPENSATIONUNDERSUBSECTION (5)(5)OF OF THIS SECTIO,OPENSECTION,OPEN DISCUSSIONS BETWEEN THE HEALTH CARE PROVIDER OR HEALTH FACILITY AND THE PATIENT ABOUT THE COMPENSATIONOFFEREDUNDERSUBSECTION (5OFTHISSECTIONSHALL(5)OFTHISSECTIONSHALL NOT BE IN WRITIN.

(1) IIENTIENT ACCEPTS AN OFFER OF COMPENSATION MADE PURSUANT TO SECTION 25-51-103 (5)AND RECEIVES THE COMPENSATION ,,THE THE PAYMENT OF COMPENSATION TO THE PATIENT IS NOT A PAYMENT RESULTING FRO:

(b) A FINAL JUDGMENTJUDGMENT,SETTLEMENT ,SETTLEMENT,,OR OR ARBITRATION AWARD AGAINST A HEALTH CARE PROFESSIONAL OR HEALTH CARE INSTITUTION FOR MEDICAL MALPRACTICE FOR PURPOSES OF SECTION13-64-303;SECTIO13-64-303;

(d) AFINALJUDGMENT AGAINST ,SETTLEMENT ENTEREDENTEREDINTOBY INTO, BY, OR ARBITRATION AWARD PAID ON BEHALF OF AN APPLICANT FOR -7- 201 MALPRACTICE UNDER SECTION 24-34-110 (4)(h)OR(4)(hOR (e) A JUDGMENT ,ADMINISTRATIVE ACTIONACTION, ,SETTLEMENTSETTLEMENT, ,OROR ARBITRATION AWARD INVOLVING MALPRACTICE UNDER SECTION 12-29.5-104 (5)(a), 12-29.9-104, 12-32-108.3 (2)(b)(III), 12-33-117 (1)(j), 12-35-129 (1)(q)R (1)(r), 12-35.5-111 (1)(i), 12-36-118 (4)(b)(III), 12-37.3-114.5,8-116.5 (3)(b)(II), 12-40-118 (OR(r) (1)(y), 12-40-127,-41-115 (1)(o), 12-41-120 (1)(a), 12-41-210 (1)(k), -7- 201 12-41-215 (1)(a), 12-42.5-(1),OR12-42.5-109 12-43-224OR)12-43-224 (8).

(a) DO NOT CONSTITUTE AN ADMISSION OF LIABILI;Y (b) A RE PRIVILEGED AND CONFIDENTIAL AND SHALL NOT BE DISCLOSED;DISCLOSED ;

(c) A RE NOT ADMISSIBLE AS EVIDENCE IN ANY SUBSEQUENT JUDICIAL, ADMINISTRATIVE, OR ARBITRATION PROCEEDING ARISING DIRECTLY OUT OF THE ADVERSE HEALTH CARE INCIDEN;INCIDENT;