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Thursday, November 21st, 2024
by Catherine Read
First Major Overhaul to Delaware Health Care Statutes in 30 Years
The first major overhaul to Delaware’s Health Care statutes was signed by the Governor on September 30, 2024, to go into effect in one year on September 30, 2025.
The law is a complete replacement to all of Title 16 Chapter 25, which is Delaware’s current Health Care Decisions Act, and modifies other health care provisions in the Code.
SB 309 was introduced in May 2024, amended in June 2024, passed the House and Senate in June 2024, and was signed by the Governor recently on September 30, 2024.
The new statute follows national precedent. A Uniform Health-Care Decisions Act was recently adopted by the Uniform Law Commission and is being enacted around the country.
“Uniform” in this context does not mean exactly the same. States may change or skip parts of the Uniform act in adoption.
Delaware’s current Health Care Decisions Act was enacted almost 30 years ago in 1996 and was modeled on the uniform act of 1993.
You are almost certain to see changes in health care documents and practices once the health care industry digests and incorporates the new law.
We are following this closely.
In December 2024 I will be presenting on the new Health-Care Decisions Act to estate planning attorneys and financial professionals and will share some of my research with you in future blogs.
In the meantime, we wanted to get out the word that the bill has become law.
The synopsis of the bill provides (broken into paragraphs for this Blog for easier reading):
“This Act adopts the Uniform Health-Care Decisions Act of 2023 (UHCDA 2023) to supersede the Uniform Health-Care Decisions Act of 1993, which Delaware enacted in 1996. The UHCDA 2023 was authored by the Uniform Law Commission (ULC) and was developed in a multiyear collaborative and non-partisan process to modernize and expand on the 1993 version of the act. The UHCDA 2023 maintains processes to address how health-care decisions can be made by or on behalf of individuals who lack capacity, including: (1) Allowing individuals to appoint agents to make health-care decisions for them should they become unable to make those decisions for themselves. (2) Allowing individuals to provide their health-care professionals and agents with instructions about their values and priorities regarding their health care and to indicate medical treatment they do or do not wish to receive. (3) Authorizing certain people to make health-care decisions for individuals incapable of making their own decisions, but who have not appointed agents. (4) Setting forth agent, default surrogate, and health-care professional rights and duties.
The UHCDA 2023 reflects substantial changes in how health care is delivered, increases in non-traditional familial relationships and living arrangements, the proliferation of the use of electronic documents, the growing use of separate advance directives exclusively for mental health care, and other recent developments.
Some updates to the Act include:
(1) Removal of administrative barriers that make the creation of an advance health-care directive more difficult.
(2) Addition of provisions to guide determinations of incapacity, which is important because an agent’s or default surrogate’s (surrogate’s) authority to make health-care decisions for a patient typically commences when the patient lacks capacity to make decisions. The Act modernizes the definition of capacity so that it accounts for the functional abilities of an individual and clarifies that the individual may lack capacity to make one decision but retains capacity to make other decisions.
(3) Authorizing the use of advance directives exclusively for mental health care.
(4) Modernizing default surrogate provisions that allow family members and certain other people close to a patient to make decisions in the event the patient lacks capacity and has not appointed a health-care agent. The new default surrogate provisions update the priority list in the 1993 Act to reflect a broader array of relationships and family structures. They also provide additional options to address disagreements among default surrogates who have equal priority.
(5) Clarifying the duties and powers of surrogates. For example, to reduce the likelihood that an individual’s health-care needs will go unmet due to financial barriers, the Act authorizes a surrogate to apply for health insurance for a patient who does not have another fiduciary authorized to do so.
(6) Modernizing the optional model form to be readily understandable and accessible to diverse populations. The form gives individuals the opportunity to readily share information about their values and goals for medical care. Thus, it addresses a common concern raised by health-care professionals in the context of advance planning: that instructions included in advance directives often focus exclusively on preferences for particular treatments, and do not provide health-care professionals or surrogates with the type of information about patients’ goals and values that could be used to make value-congruent decisions when novel or unexpected situations arise. The form addresses these concerns by providing options for individuals to indicate goals and values, in addition to specific treatment preferences.
This Act also adopts some of the optional provisions suggested by the ULC, including that an agent or surrogate has limited ability to consent to the long-term placement of an individual in a nursing home without express authorization. Specifically, without express authorization, the agent or surrogate may not consent to the placement for more than 100 days over the individual’s contemporaneous objection unless (1) no alternative living arrangement is reasonably feasible or (2) the individual is terminally ill. The ULC suggested 100 days in recognition that the federal Medicare program covers up to 100 days of nursing home care for qualified beneficiaries.
This Act does not authorize mercy killing, assisted suicide, or euthanasia.
In addition to style changes throughout, this Act makes some modifications to the UHCDA 2023 that are consistent with Act and should not disrupt uniform interpretation.
These modifications include:
(1) Revising language to conform to Delaware court practices.
(2) Providing surrogates with the authority to file insurance or benefit claims on behalf of the individual and to appeal such outcomes, in addition to the UHCDA 2023 allowance for a surrogate to apply for insurance or benefits on behalf of the individual. As under the UHCDA 2023, a surrogate does not have the duty to perform these actions and may only do so if no other fiduciary is authorized to do so.
(3) Creating an additional disqualification that disallows a potential surrogate from serving if the individual has a pending Protection From Abuse petition against the potential surrogate, the individual has a Protection From Abuse order against the potential surrogate, or the potential surrogate is the subject of a civil or criminal order prohibiting or limiting contact with the individual.
Section 2 of this Act adds a new Chapter 25B to the Delaware Code. Chapter 25B will contain Delaware-specific supplements to the UHCDA 2023. These Delaware-specific additions are being placed within their own chapter to promote uniform interpretation of the UHCDA 2023.
Chapter 25B includes § 2502B, which relates to health-care institution authorization to petition for guardianship for an individual to whom the institution is providing care. Section 2502B reinforces the work of the Non-Acute Medical Guardianship Task Force, created by Senate Concurrent Resolution No. 30 by the 150th General Assembly. That task force’s work resulted in the current § 2519 of Title 16, which offers a process and timeline whereby health-care institutions can take steps to help obtain a guardianship for patients who no longer require acute care and can be transferred to another type of health-care setting. While § 2502B retains the ability for a health-care institution to address the discharge of long-term stay patients without an authorized decisionmaker, it modifies the powers in the current § 2519 by doing all of the following: (1) Allowing health-care institutions to petition of the appointment of a guardian in instances beyond where an individual no longer needs acute care. (2) Reiterating that the health-care institution may only petition if they believe there is no less restrictive alternative that will meet the individual’s needs. (3) Streamlining notice requirements and changing who must receive these notices so that a health-care institution does not send a notice if there is a reasonably available surrogate. If there is a reasonably available surrogate and there is a dispute between the surrogate and the health-care institution about the treatment or level of care needed by an individual, then the parties should seek judicial relief under § 2526 of the UHCDA 2023 as opposed to using the guardianship process.
The new Chapter 25B also contains a provision to encourage public awareness and use of advance mental health-care directives.
Sections 3 through 11 of this Act update the Delaware Code in light of the adoption of the UHCDA 2023 by updating internal citations, updating terms to match the terms used in the UHCDA 2023, and ensuring a consistent list of default surrogate decisionmakers.
This Act is effective immediately and is to be implemented 1 year from the date of enactment.
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