1     
EMERGENCY HEALTH CARE ACCESS AND IMMUNITY

2     
AMENDMENTS

3     
2020 THIRD SPECIAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Evan J. Vickers

6     
House Sponsor: Val L. Peterson

7     

8     LONG TITLE
9     General Description:
10          This bill expands access to certain treatments and creates limited immunity for certain
11     actions during a declared major public health emergency.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     provides limited immunity for health care, including the use of certain treatments,
16     provided during a major public health emergency;
17          ▸     amends the Utah Right to Try Act to permit the use of certain investigational drugs
18     and devices during a major public health emergency; and
19          ▸     creates limited immunity for health care providers who provide an investigational
20     drug or device to a patient during a major public health emergency.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          This bill provides a special effective date.
25     Utah Code Sections Affected:
26     ENACTS:
27          58-13-2.7, Utah Code Annotated 1953
28          58-85-106, Utah Code Annotated 1953
29     


30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 58-13-2.7 is enacted to read:
32          58-13-2.7. Limited immunity during a declared major public health emergency.
33          (1) As used in this section:
34          (a) "Declared major public health emergency" means the same as that term is defined
35     in Section 58-85-106.
36          (b) "Health care" means the same as that term is defined in Section 78B-3-403.
37          (c) "Health care provider" means the same as that term is defined in Section
38     78B-3-403.
39          (d) "Prescription device" means the same as that term is defined in Section 58-17b-102.
40          (e) "Prescription drug" means the same as that term is defined in Section 58-17b-102.
41          (f) "Qualified treatment" means the use of a prescription drug or prescription device:
42          (i) during a declared major public health emergency;
43          (ii) to treat a patient who has been diagnosed with the illness or condition that resulted
44     in the declared major public health emergency; and
45          (iii) that has been approved for sale but not indicated by the United States Food and
46     Drug Administration to treat the illness or condition described in Subsection (1)(f)(ii).
47          (2) (a) A health care provider is immune from civil liability for any harm resulting
48     from any act or omission in the course of providing health care during a declared major public
49     health emergency if:
50          (i) (A) the health care is provided in good faith to treat a patient for the illness or
51     condition that resulted in the declared major public health emergency; or
52          (B) the act or omission was the direct result of providing health care to a patient for the
53     illness or condition that resulted in the declared major public health emergency; and
54          (ii) the acts or omissions of the health care provider were not:
55          (A) grossly negligent; or
56          (B) intentional or malicious misconduct.
57          (b) The immunity in Subsection (2)(a) applies:

58          (i) even if the health care provider has a duty to respond or an expectation of payment
59     or remuneration; and
60          (ii) in addition to any immunity protections that may apply under state or federal law.
61          (c) During a declared major public health emergency, it is not a breach of the
62     applicable standard of care for a health care provider to provide health care that is not within
63     the health care provider's education, training, or experience, if:
64          (i) the health care is within the applicable scope of practice for the type of license
65     issued to the health care provider;
66          (ii) (A) the health care is provided in good faith to treat a patient for the illness or
67     condition that resulted in the declared major public health emergency; or
68          (B) there is an urgent shortage of health care providers as a direct result of the declared
69     major public health emergency; and
70          (iii) providing the health care is not:
71          (A) grossly negligent; or
72          (B) intentional or malicious misconduct.
73          (3) (a) A health care provider is not subject to civil liability, criminal liability, or
74     sanctions against the health care provider's license for providing a qualified treatment to a
75     patient if:
76          (i) the qualified treatment is within the scope of the health care provider's license;
77          (ii) if written recommendations have been issued by a federal government agency
78     regarding the use of the qualified treatment for treatment of the illness or condition that
79     resulted in the declared major public health emergency, the health care provider provides the
80     qualified treatment in accordance with the most current written recommendations issued by the
81     federal government agency;
82          (iii) the health care provider:
83          (A) describes to the patient or the patient's representative, based on the health care
84     provider's knowledge of the qualified treatment, the possible positive and negative outcomes
85     the patient could experience if the health care provider treats the patient with the qualified

86     treatment; and
87          (B) documents in the patient's medical record the information provided to the patient or
88     the patient's representative under Subsection (3)(a)(iii)(A) and whether the patient or the
89     patient's representative consented to the treatment; and
90          (iv) the acts or omissions of the health care provider were not:
91          (A) grossly negligent; or
92          (B) intentional or malicious misconduct.
93          (b) If two or more written recommendations described in Subsection (3)(a)(ii) are
94     issued by federal government agencies, a health care provider satisfies the requirement
95     described in Subsection (3)(a)(ii) by providing the qualified treatment in accordance with the
96     most current written recommendations of any one federal government agency.
97          Section 2. Section 58-85-106 is enacted to read:
98          58-85-106. Use of investigational drugs and devices during a major public health
99     emergency -- Limitations -- Immunity.
100          (1) As used in this section:
101          (a) "Declared major public health emergency" means a state of emergency declared by
102     the governor under Section 53-2a-206 as the result of a major public health emergency.
103          (b) "Health care provider" means the same as that term is defined in Section
104     76B-3-403.
105          (c) "Insurer" means the same as that term is defined in Section 31A-22-634.
106          (d) "Major public health emergency" means an occurrence of imminent threat of an
107     illness or health condition that:
108          (i) is believed to be caused by:
109          (A) bioterrorism;
110          (B) the appearance of a novel or previously controlled or eradicated infectious agent or
111     biological toxin;
112          (C) a natural disaster;
113          (D) a chemical attack or accidental release; or

114          (E) a nuclear attack or accident; and
115          (ii) poses a high probability of:
116          (A) a large number of deaths in the affected population;
117          (B) a large number of serious or long-term disabilities in the affected population; or
118          (C) widespread exposure to an infectious or toxic agent that poses a significant risk of
119     substantial future harm to a large number of people in the affected population.
120          (e) "Physician" means the same as that term is defined in Section 58-67-102.
121          (f) "Qualified patient" means a patient who has been diagnosed with a condition that
122     has resulted in a declared major public health emergency.
123          (2) (a) To the extent permitted under federal law, a qualified patient may obtain an
124     investigational drug through an agreement with the investigational drug's manufacturer and the
125     qualified patient's physician that provides:
126          (i) for the transfer of the investigational drug from the manufacturer to the physician;
127     and
128          (ii) that the physician will administer the investigational drug to the qualified patient.
129          (b) To the extent permitted under federal law, a qualified patient may obtain an
130     investigational device through an agreement with the investigational device's manufacturer and
131     the qualified patient's physician that provides:
132          (i) for the transfer of the investigational device from the manufacturer to the physician;
133     and
134          (ii) that the physician will use the investigational device to treat the qualified patient.
135          (c) The agreement described in Subsection (2)(a) or (b) shall include an informed
136     consent document that, based on the physician's knowledge of the relevant investigational drug
137     or investigational device:
138          (i) describes the possible positive and negative outcomes the qualified patient could
139     experience if the physician treats the qualified patient with the investigational drug or
140     investigational device;
141          (ii) states that an insurer is not required to cover the cost of providing the

142     investigational drug or investigational device to the qualified patient;
143          (iii) states that, subject to Subsection (5), an insurer may deny coverage for the
144     qualified patient; and
145          (iv) states that the qualified patient may be liable for all expenses caused by the
146     physician treating the patient with the investigational drug or investigational device, unless the
147     agreement provides otherwise.
148          (3) The physician of a qualified patient shall notify the qualified patient's insurer of:
149          (a) the day on which the physician treated the qualified patient with an investigational
150     drug or investigational device; and
151          (b) the investigational drug or investigational device used under an agreement
152     described in Subsection (2).
153          (4) (a) It is not a breach of the applicable standard of care for a health care provider to
154     treat a qualified patient with an investigational drug or investigational device under this
155     section.
156          (b) A health care provider that treats a qualified patient with an investigational drug or
157     investigational device in accordance with this section is not subject to civil liability, criminal
158     liability, or sanctions against the health care provider's license for any harm to the qualified
159     patient resulting from the qualified patient's use of the investigational drug or device.
160          (5) (a) This section does not:
161          (i) require a manufacturer of an investigational drug or investigational device to agree
162     to make an investigational drug or investigational device available to a qualified patient or a
163     qualified patient's physician;
164          (ii) require a physician to agree to:
165          (A) administer an investigational drug to a qualified patient under this section; or
166          (B) treat a qualified patient with an investigational device under this section;
167          (iii) create a private right of action for a qualified patient against a health care provider
168     for the health care provider's refusal to:
169          (A) administer an investigational drug to a qualified patient under this section; or

170          (B) treat a qualified patient with an investigational device under this section; or
171          (iv) create a private right of action for a qualified patient against a manufacturer for the
172     manufacturer's refusal to provide a qualified patient with an investigational drug or an
173     investigational device under this section.
174          (b) This section does not:
175          (i) require an insurer to cover the cost of:
176          (A) administering an investigational drug under this section; or
177          (B) treating a patient with an investigational device under this section; or
178          (ii) prohibit an insurer from covering the cost of:
179          (A) administering an investigational drug under this section; or
180          (B) treating a patient with an investigational device under this section.
181          (c) Except as described in Subsection (5)(d), an insurer may deny coverage to a
182     qualified patient who is treated with an investigational drug or investigational device for harm
183     to the qualified patient caused by the investigational drug or investigational device.
184          (d) An insurer may not deny coverage to a qualified patient under Subsection (5)(c) for:
185          (i) the qualified patient's preexisting condition;
186          (ii) benefits that commenced before the day on which the qualified patient was treated
187     with the investigational drug or investigational device; or
188          (iii) palliative or hospice care for a qualified patient that has been treated with an
189     investigational drug or investigational device but is no longer receiving curative treatment with
190     the investigational drug or investigational device.
191          Section 3. Effective date.
192          If approved by two-thirds of all the members elected to each house, this bill takes effect
193     upon approval by the governor, or the day following the constitutional time limit of Utah
194     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
195     the date of veto override.