HOUSE OF REPRESENTATIVES

H.B. NO.

302

THIRTY-FIRST LEGISLATURE, 2021

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO ADVANCED PRACTICE REGISTERED NURSES.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that advanced practice registered nurses provide a wide variety of health care services to people across the State. The legislature further finds that existing law requires each hospital within the State to allow advanced practice registered nurses to practice at the hospital within the full scope of their authorized practice, including practice as primary care providers. Advanced practice registered nurses are also recognized as participating primary care providers for insurance purposes under the State's insurance code. Despite these facts, certain sections of existing law have not been amended to include advanced practice registered nurses in areas concerning mental health directives and disability determinations for purposes of income tax laws. Accordingly, these statutes should be expanded to authorize increased participation by advanced practice registered nurses and to recognize appropriately trained advanced practice registered nurses as the primary care providers that they are. The legislature further finds that authorizing increased participation by advanced practice registered nurses in certain circumstances will further enable improved access to health care services, expedite the processing of paperwork, and provide optimal care at the initial point of access for Hawaii patients, especially in rural and medically underserved areas.

The purpose of this Act is to improve patient access to medical care and services by:

(1) Authorizing advanced practice registered nurses to certify whether a person is totally disabled under the income tax code;

(2) Authorizing advanced practice registered nurses with psychiatric specializations to make capacity determinations for purposes of advance mental health care directives; and

(3) Adding advanced practice registered nurses with psychiatric specializations as primary providers in advance mental health care directives.

SECTION 2. Section 235-1, Hawaii Revised Statutes, is amended by amending the definition of "person totally disabled" to read as follows:

""Person totally disabled" means a person who is totally and permanently disabled, either physically or mentally, which results in the person's inability to engage in any substantial gainful business or occupation.

The disability shall be certified to by a:

(1) Physician or osteopathic physician licensed under chapter 453[;] or an advanced practice registered nurse licensed under chapter 457;

(2) Qualified out-of-state physician or advanced practice registered nurse who is currently licensed to practice in the state in which the physician or advanced practice registered nurse resides; or

(3) Commissioned medical officer in the United States Army, Navy, Marine Corps, or Public Health Service, engaged in the discharge of the officer's official duty.

Certification shall be on forms prescribed by the department of taxation."

SECTION 3. Section 327G-2, Hawaii Revised Statutes, is amended as follows:

1. By adding a new definition to be appropriately inserted and to read:

""Advanced practice registered nurse" means a person licensed as an advanced practice registered nurse pursuant to chapter 457 and who holds an accredited national certification in an advanced practice registered nurse psychiatric specialization."

2. By amending the definition of "primary physician" to read:

""Primary [physician"] provider" means a physician or advanced practice registered nurse designated by a principal or the principal's agent or guardian to have primary responsibility for the principal's health care, including mental health care or, in the absence of a designation or if the designated physician or advanced practice registered nurse is not reasonably available, a physician or advanced practice registered nursed who undertakes the responsibility."

3. By amending the definition of "supervising health care provider" to read:

""Supervising health care provider" means the primary [physician] provider or the [physician's] primary provider's designee, or the health care provider or the provider's designee who has undertaken primary responsibility for a principal's health care, that includes mental health care."

SECTION 4. Section 327G-7, Hawaii Revised Statutes, is amended by amending subsections (d) and (e) to read as follows:

"(d) For the purposes of this chapter, the determination that a principal lacks capacity shall be made by the supervising health care provider who is a physician or advanced practice registered nurse and one other physician, advanced practice registered nurse, or licensed psychologist after both have conducted an examination of the principal. Upon examination and a joint determination that the principal lacks capacity, the supervising health care provider shall promptly note the determination in the principal's medical record, including the facts and professional opinions that form the basis of the determination, and shall promptly notify the agent that the principal lacks capacity and that the advance mental health care directive has been invoked.

(e) The determination that a principal has recovered capacity shall be made by the supervising health care provider who is a physician[.] or advanced practice registered nurse. The supervising health care provider shall promptly note the recovery of capacity in the principal's medical record, and shall promptly notify the agent that the principal has recovered capacity."

SECTION 5. Section 327G-10, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) A physician [or], licensed psychologist, or advanced practice registered nurse, who in good faith determines that the principal has or lacks capacity in accordance with this chapter to decide whether to invoke an advance mental health care directive, is not subject to criminal prosecution, civil liability, or professional disciplinary action for making and acting upon that determination."

SECTION 6. Section 327G-14, Hawaii Revised Statutes, is amended to read as follows:

"327G-14 Optional form. The following sample form may be used to create an advance mental health care directive. This sample form may be duplicated, or modified to suit the needs of the person. Any written document that contains the substance of the following information may be used in an advance mental health care directive:

"ADVANCE MENTAL HEALTH CARE DIRECTIVE

 

Explanation

 

You have the right to give instructions about your own mental health care. You also have the right to name someone else to make mental health treatment decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your health care providers. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.

Part 1 of this form is a list of options you may designate as part of your mental health care and treatment. For ease of designating specific instructions, mark those options in Part 1.

Part 2 of this form is a power of attorney for mental health care. This lets you name another individual as your agent to make mental health treatment decisions for you, if you become incapable of making your own decisions, or if you want someone else to make those decisions for you now, even though you are still capable of making your own decisions. You may name alternate agents to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator, or employee of a health care institution where you are receiving care.

You may allow your agent to make all mental health treatment decisions for you. However, if you wish to limit the authority of your agent, you may specify those limitations on the form. If you do not limit the authority of your agent, your agent will have the right to:

(1) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a mental condition;

(2) Select or discharge health care providers and institutions;

(3) Approve or disapprove diagnostic tests, surgical procedures, and programs of medication; and

(4) Approve or disapprove of electroconvulsive treatment.

Part 3 of this form lets you give specific instructions about any aspect of your mental health care and treatment. Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of medication and treatment. Space is provided for you to add to the choices you have made or for you to write out any additional wishes.

Part 4 of this form must be completed in order to activate the advance mental health care directive. After completing this form, sign and date the form at the end and have the form witnessed by one or both of the two methods listed below. Give a copy of the signed and completed form to your physician[,] or advanced practice registered nurse, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any mental health care agents you have named. You should talk to the persons you have named as agents to make sure that they understand your wishes and are willing to take the responsibility.

You have the right to revoke this advance mental health care directive or replace this form at any time, unless otherwise specified in writing in the advance mental health care directive.

If you are in imminent danger of causing bodily harm to yourself or others, or have been involuntarily committed to a health care institution for mental health treatment, the advance mental health care directive will not apply.

 

PART 1

CHECKLIST OF MENTAL HEALTH CARE OPTIONS

 

NOTE TO PROVIDER: The following is a checklist of selections I have made regarding my mental health care and treatment. I include this statement to express my strong desire for you to acknowledge and abide by my rights, under state and federal laws, to influence decisions about the care I will receive.

(Declarant: Put a check mark in the left-hand column for each section you have completed.)

 

___ Designation of my mental health care agent(s).

___ Authority granted to my agent(s).

___ My preference for a court appointed guardian.

___ My preference of treating facility and alternatives to hospitalization.

___ My preferences about the physicians, advanced practice registered nurses, or other mental health care providers who will treat me if I am hospitalized.

___ My preferences regarding medications.

___ My preferences regarding electroconvulsive therapy (ECT or shock treatment).

___ My preferences regarding emergency interventions (seclusion, restraint, medications).

___ Consent for experimental drugs or treatments.

___ Who should be notified immediately of my admission to a facility.

___ Who should be prohibited from visiting me.

___ My preferences for care and temporary custody of my children or pets.

___ Other instructions about mental health care and treatment.

 

PART 2

DURABLE POWER OF ATTORNEY FOR MENTAL HEALTH

TREATMENT DECISIONS

 

(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make mental health care decisions for me:

 

___________________________________________________

(name of individual you choose as agent)

 

___________________________________________________

(address) (city) (state) (zip code)

 

___________________________________________________

(home phone) (work phone)

 

OPTIONAL: If I revoke my agent's authority or if my agent is not willing, able, or reasonably available to make a mental health care decision for me, I designate as my first alternate agent:

 

___________________________________________________

(name of individual you choose as first alternate agent)

 

___________________________________________________

(address) (city) (state) (zip code)

 

___________________________________________________

(home phone) (work phone)

 

OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a mental health care decision for me, I designate as my second alternate agent:

 

___________________________________________________

(name of individual you choose as second alternate agent)

 

___________________________________________________

(address) (city) (state) (zip code)

 

___________________________________________________

(home phone) (work phone)

 

(2) AGENT'S AUTHORITY: My agent is authorized to make all mental health care treatment decisions for me, including decisions to provide, withhold, or withdraw medication and treatment, and all other forms of mental health care, except as I state here:

 

___________________________________________________

___________________________________________________

___________________________________________________

(Add additional sheets if needed.)

 

(3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my supervising health care provider who is a physician or advanced practice registered nurse and one other physician, advanced practice registered nurse, or licensed psychologist determine that I am unable to make my own mental health care decisions.

(4) AGENT'S OBLIGATION: My agent shall make mental health care decisions for me in accordance with this power of attorney for mental health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make mental health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

(5) NOMINATION OF GUARDIAN: If a guardian needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated.

 

PART 3

INSTRUCTIONS FOR MENTAL HEALTH CARE AND TREATMENT

 

If you are satisfied to allow your agent to determine what is best for you, you need not fill out this part of the form. If you do fill out this part of the form, you may strike any wording you do not want.

(6) My preference of treating facility and alternatives to hospitalization:

(7) My preferences about the physicians, advanced practice registered nurses, or other mental health care providers who will treat me if I am hospitalized:

(8) My preferences regarding medications:

(9) My preferences regarding electroconvulsive therapy (ECT or shock treatment):

(10) My preferences regarding emergency interventions (seclusion, restraint, medications):

(11) Consent for experimental drugs or treatments:

(12) Who should be notified immediately of my admission to a facility:

(13) Who should be prohibited from visiting me:

(14) My preferences for care and temporary custody of my children or pets:

(15) My preferences about revocation of my advance mental health care directive during a period of incapacity:

(16) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:

 

___________________________________________________

___________________________________________________

___________________________________________________

(Add additional sheets if needed.)

 

PART 4

WITNESSES AND SIGNATURES

 

(17) EFFECT OF COPY: A copy of this form has the same effect as the original.

(18) SIGNATURES: Sign and date the form here:

 

____________________________ ___________________________

(date) (sign your name)

 

____________________________ ___________________________

(address) (print your name)

 

____________________________

(city) (state)

 

 

(19) WITNESSES: This power of attorney will not be valid for making mental health care decisions unless it is either: (a) signed by two qualified adult witnesses who are personally known to you and who are present when you sign or acknowledge your signature; or (b) acknowledged before a notary public in the State.

 

AFFIRMATION OF WITNESSES

 

Witness 1

 

I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility. I am not related to the principal by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.

 

____________________________ ___________________________

(date) (sign your name)

 

____________________________ ___________________________

(address) (print your name)

 

____________________________

(city) (state)

 

Witness 2

 

I declare under penalty of false swearing pursuant to section 710-1062, Hawaii Revised Statutes, that the principal is personally known to me, that the principal signed or acknowledged this power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as agent by this document, and that I am not a health care provider, nor an employee of a health care provider or facility. I am not related to the principal by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.

 

____________________________ ___________________________

(date) (sign your name)

 

____________________________ ___________________________

(address) (print your name)

 

____________________________

(city) (state)

 

DECLARATION OF NOTARY

 

State of Hawaii

County of ________________

On this _____________ day of _______________, in the year _______, before me, __________________ (insert name of notary public) appeared _________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it.

 

Notary Seal

 

____________________________

(Signature of Notary Public)"

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2060.


 


 

Report Title:

Advanced Practice Registered Nurses; Disability; Income Tax Code; Mental Capacity Determinations; Advanced Mental Health Directives

 

Description:

Authorizes advanced practice registered nurses to certify whether a person is totally disabled under the income tax code. Authorizes advanced practice registered nurses with psychiatric specializations to make capacity determinations. Adds advanced practice registered nurses with psychiatric specializations as primary providers in advance mental health care directives. Effective 7/1/2060. (HD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.