(1) A
proxy decision-maker for medical treatment selected in accordance with section
15-18.5-103 or a person with the right to act as a surrogate decision-maker in a
designated beneficiary agreement made pursuant to article 22 of this title shall
have authority to make health-care benefit decisions on behalf of an adult patient
and may be known additionally as a surrogate decision-maker for health-care
benefits.
(2) A court or the attending physician may make the determination that a
person lacks the decisional capacity to make health-care benefit decisions. The
determination shall be documented in such patient's medical record. The
determination may also be made by an advanced practice registered nurse who has
collaborated about the patient with a licensed physician either in person, by
telephone, or electronically. The advanced practice registered nurse shall
document in the patient's record the name of the physician with whom the
advanced practice registered nurse collaborated. The attending physician or nurse
shall make specific findings regarding the cause, nature, and projected duration of
the person's lack of decisional capacity regarding health-care benefit decisions.
Such determination and findings shall be documented in the person's medical
record.
(3) Upon a determination that an adult patient lacks decisional capacity to
make health-care benefit decisions, the attending physician, advanced practice
registered nurse, or the physician's or nurse's designee shall make reasonable
efforts to notify the patient of the patient's lack of decisional capacity. In addition,
the attending physician or advanced practice registered nurse or the physician's or
nurse's designee shall make reasonable efforts to locate as many interested
persons as defined in this subsection (3) as practicable, and the attending physician
or advanced practice registered nurse may rely on such individuals to notify other
family members or interested persons. For the purposes of this section, interested
persons means the patient's spouse; either parent of the patient; any adult child,
sibling, or grandchild of the patient; or any close friend of the patient. Upon locating
an interested person, the attending physician or advanced practice registered nurse
or the physician's or nurse's designee shall inform such person of the patient's lack
of decisional capacity and determine whether such interested person is available,
willing, and has the capability to act as a surrogate decision-maker for health-care
benefits for the patient.
(4) If a proxy decision-maker for medical treatment or an interested person,
as defined in subsection (3) of this section, is unavailable, unwilling, or does not
have the capability to make a health-care benefit decision on behalf of a person
lacking the decisional capacity to make a health-care benefit decision pursuant to
this section, then the attending physician or his or her designee may appoint a
surrogate decision-maker for health-care benefits as described in subsection (5) of
this section.
(5) The surrogate decision-maker for health-care benefits appointed by an
attending physician or his or her designee may be a private individual or an
individual acting on behalf of an organization, including an employee of the
organization, willing to voluntarily assume the fiduciary responsibility to make
health-care benefit decisions in the best interests of the person who lacks the
decisional capacity to make health-care benefit decisions. The appointed surrogate
decision-maker for health-care benefits shall be free of conflicts specified in
subsection (9) of this section.
(6) Community and charitable organizations may provide volunteers or
employees to serve as surrogate decision-makers for health-care benefits. The
division of insurance, established in section 10-1-103, C.R.S., shall be available to
provide assistance to surrogate decision-makers for health-care benefits regarding
medicare benefits. A physician or his or her designee may contact nonprofit entities
that serve the elderly or disability communities for assistance in locating an
appropriate surrogate decision-maker for health-care benefits.
(7) After a physician or his or her designee locates an individual willing to act
as the surrogate decision-maker for health-care benefits pursuant to subsection (3)
of this section, the physician shall certify the appointment in writing on the form set
forth in section 15-18.5-105.
(8) If the surrogate decision-maker for health-care benefits, a proxy
decision-maker for medical treatment, an interested person, the person's guardian,
or the attending physician believes the patient has regained decisional capacity,
then the attending physician shall reexamine the patient and determine whether or
not the patient has regained such decisional capacity and shall enter the decision
and the basis therefor into the patient's medical record and shall notify the patient,
the surrogate decision-maker for health-care benefits, and the person who initiated
the redetermination of decisional capacity.
(9) A surrogate decision-maker for health-care benefits may not be an
employee, a contractor, or an official representative of, or receive any remuneration
of any kind from, a health-care provider, medical benefit provider, pharmaceutical
company, pharmacy benefit management company, pharmacy, or any person or
entity engaged in the sale of insurance.
(10) A surrogate decision-maker for health-care benefits shall have access to
all necessary information, including but not limited to:
(a) Personal health information as defined by the federal Health Insurance
Portability and Accountability Act of 1996, 42 U.S.C. sec. 1320d-7 (a)(2); and
(b) Financial information needed to make appropriate health-care benefit
decisions; except that any bank, trust company, savings and loan association, credit
union, or insurance company regulated under any laws of this state or the United
States and any officer, employee, agent, or affiliate of any of the foregoing entities
shall be exempt from any requirement to provide financial information to a
surrogate decision-maker under the provisions of this section.
(11) A surrogate decision-maker for health-care benefits shall make
decisions that are in the best interests of the person on whose behalf the decisions
are made.
(12) Any entity, including a financial entity, that relies in good faith on a
certificate of appointment of a surrogate decision-maker for health-care benefits
received directly from the attending physician or his or her designee shall be
immune from liability for actions taken on the basis of said certificate.
(13) A surrogate decision-maker for health-care benefits shall be immune
from liability for decisions made in good faith.
(14) An attending physician, health-care provider, or health-care facility that
acts in substantial compliance with this section shall not be subject to civil or
criminal liability or regulatory sanction relating to the selection or actions of a
surrogate decision-maker for health-care benefits.
(15) Nothing in this section shall be construed as requiring a surrogate
decision-maker for health-care benefits to make a decision or from prohibiting an
individual from consulting another person or entity to obtain assistance in making a
health-care benefit decision.