Chief Sponsor: Lincoln Fillmore

House Sponsor: Brady Brammer


8     General Description:
9          This bill enacts provisions relating to the allocation of certain health care resources.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms; and
13          ▸     requires the department to make rules regarding the procedure that the department
14     must follow when adopting, modifying, requiring, facilitating, or recommending
15     criteria related to the rationing of scarce health care resources.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          This bill provides a special effective date.
20          This bill provides revisor instructions.
21     Utah Code Sections Affected:
22     ENACTS:
23          26-1-43, Utah Code Annotated 1953
24     Utah Code Sections Affected by Revisor Instructions:
25          26-1-43, Utah Code Annotated 1953

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 26-1-43 is enacted to read:

29          26-1-43. Requirements for issuing, recommending, or facilitating rationing
30     criteria.
31          (1) As used in this section:
32          (a) "Health care resource" means:
33          (i) health care as defined in Section 78B-3-403;
34          (ii) a prescription drug as defined in Section 58-17b-102;
35          (iii) a prescription device as defined in Section 58-17b-102;
36          (iv) a nonprescription drug as defined in Section 58-17b-102; or
37          (v) any supply or treatment that is intended for use in the course of providing health
38     care as defined in Section 78B-3-403.
39          (b) (i) "Rationing criteria" means any requirement, guideline, process, or
40     recommendation regarding:
41          (A) the distribution of a scarce health care resource; or
42          (B) qualifications or criteria for a person to receive a scarce health care resource.
43          (ii) "Rationing criteria" includes crisis standards of care with respect to any health care
44     resource.
45          (c) "Scarce health care resource" means a health care resource:
46          (i) for which the need for the health care resource in the state or region significantly
47     exceeds the available supply of that health care resource in that state or region;
48          (ii) that, based on the circumstances described in Subsection (1)(c)(i), is distributed or
49     provided using written requirements, guidelines, processes, or recommendations as a factor in
50     the decision to distribute or provide the health care resource; and
51          (iii) that the federal government has allocated to the state to distribute.
52          (2) (a) On or before July 1, 2022, the department shall make rules in accordance with
53     Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish a procedure that the
54     department will follow to adopt, modify, require, facilitate, or recommend rationing criteria.
55          (b) Beginning July 1, 2022, the department may not adopt, modify, require, facilitate,

56     or recommend rationing criteria unless the department follows the procedure established by the
57     department under Subsection (2)(a).
58          (3) The procedures developed by the department under Subsection (2) shall include, at
59     a minimum:
60          (a) a requirement that the department notify the following individuals in writing before
61     rationing criteria are issued, are recommended, or take effect:
62          (i) the Administrative Rules Review Committee created in Section 63G-3-501;
63          (ii) the governor or the governor's designee;
64          (iii) the president of the Senate or the president's designee;
65          (iv) the speaker of the House of Representatives or the speaker's designee;
66          (v) the executive director or the executive director's designee; and
67          (vi) if rationing criteria affect hospitals in the state, a representative of an association
68     representing hospitals throughout the state, as designated by the executive director; and
69          (b) procedures for an emergency circumstance which shall include, at a minimum:
70          (i) a description of the circumstances under which emergency procedures described in
71     this Subsection (3)(b) may be used; and
72          (ii) a requirement that the department notify the individuals described in Subsections
73     (3)(a)(i) through (vi) as soon as practicable, but no later than 48 hours after the rationing
74     criteria take effect.
75          (4) (a) Within 30 days after the effective date of the bill, the department shall send to
76     the Administrative Rules Review Committee all rationing criteria that:
77          (i) were adopted, modified, required, facilitated, or recommended by the department
78     prior to the effective date of the bill; and
79          (ii) on the effective date of the bill, were in effect and in use to distribute or qualify a
80     person to receive scarce health care resources.
81          (b) During the 2022 interim, the Administrative Rules Review Committee shall, under
82     Subsection 63G-3-501(3)(d)(i), review each of the rationing criteria submitted by the

83     department under Subsection (4)(a).
84          (5) The requirements described in this section and rules made under this section shall
85     apply regardless of whether rationing criteria:
86          (a) have the force and effect of law, or is solely advisory, informative, or descriptive;
87          (b) are carried out or implemented directly or indirectly by the department or by other
88     individuals or entities; or
89          (c) are developed solely by the department or in collaboration with other individuals or
90     entities.
91          (6) This section:
92          (a) may not be suspended under Section 53-2a-209 or any other provision of state law
93     relating to a state of emergency;
94          (b) does not limit a private entity from developing or implementing rationing criteria;
95     and
96          (c) does not require the department to adopt, modify, require, facilitate, or recommend
97     rationing criteria that the department does not determine to be necessary or appropriate.
98          (7) Subsection (2) does not apply to rationing criteria that are adopted, modified,
99     required, facilitated, or recommended by the department:
100          (a) through the regular, non-emergency rulemaking procedure described in Section
101     63G-3-301;
102          (b) if the modification is solely to correct a technical error in rationing criteria such as
103     correcting obvious errors and inconsistencies including those involving punctuation,
104     capitalization, cross references, numbering, and wording;
105          (c) to the extent that compliance with this section would result in a direct violation of
106     federal law;
107          (d) that are necessary for administration of the Medicaid program;
108          (e) if state law explicitly authorizes the department to engage in rulemaking to
109     establish rationing criteria; or

110          (f) if rationing criteria are authorized directly through a general appropriation bill that
111     is validly enacted.
112          Section 2. Effective date.
113          If approved by two-thirds of all the members elected to each house, this bill takes effect
114     upon approval by the governor, or the day following the constitutional time limit of Utah
115     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
116     the date of veto override.
117          Section 3. Revisor instructions.
118          The Legislature intends that the Office of Legislative Research and General Counsel, in
119     preparing the Utah Code database for publication, replace the references in Subsection
120     26-1-43(4)(a) from "the effective date of this bill" to the bill's actual effective date.