Legislative Update: Governor's vetoes hold
Legislative Update: Governor acts on remaining 2023 legislation
Legislative Update: Governor to act on state budget, criminal law highlights
Civil procedure, civil litigation, and tort law highlights
Breakdowns of enacted 2022 legislation, veto session in September
The General Assembly will reconvene on Wednesday, September 14, 2022, for its annual session to reconsider vetoed bills. As mentioned in the last update, the governor has communicated his intent to call an extraordinary session of the General Assembly to consider broad changes to state tax law (including income tax cuts) and to extend the expiration date for certain agricultural tax credits beyond the two years proposed by the General Assembly. Unless the legislation itself provides otherwise, the effective date for the 2022 legislation signed by the governor will be August 28, 2022. This week’s Legislative Update features highlights of enacted legislation relating to civil procedure, civil litigation, and tort law. Updates in the coming weeks will also focus on enacted legislation in particular practice or subject areas. A complete breakdown of the 2022 Truly Agreed To and Finally Passed Legislation will be available to members of The Missouri Bar in the August issue of the Legislative Digest (prior to August 28, 2022).
CIVIL PROCEDURE, CIVIL LITIGATION, AND TORT LAW
Most of the bills listed below contained numerous new or amended statutory sections. Only those which may be relevant to civil procedure, civil litigation, or tort law are summarized below:
CCS HCS#2 SB 710 (Beck) – Relating to health care, with penalty provisions and an emergency clause for a certain section
05/13/2022 – Truly Agreed To and Finally Passed
05/18/2022 – Presented to Governor
06/30/2022 – Signed by Governor
“WILL’S LAW” – DEFINITIONS – EPILEPSY OR SEIZURE DISORDER, INDIVIDUAL EMERGENCY HEALTH CARE PLAN, REQUIREMENTS – IMMUNITY FROM LIABILITY, WHEN (Section 167.625) (New) – Upon notification by a parent of a student who seeks epilepsy or seizure disorder care while at school, the school nurse shall develop an individualized health care plan and an individualized emergency health care plan for the student. Such plan shall be developed in consultation with a student’s parent or guardian and appropriate medical professionals. It shall address procedural guidelines and specific directions for particular emergency situations relating to the student’s epilepsy or seizure disorder. The individualized plan shall be updated before the beginning of each school year (and as necessary); the parent shall annually provide to the school written authorization for the provision of epilepsy or seizure disorder care as described in the plan. Notice must be given to any school employee that may interact with the student. The notice must include symptoms of the epilepsy or seizure disorder, and any medical and treatment issues that may affect the educational process.
The school nurse, school administrator, or a designee shall coordinate the provision of epilepsy and seizure disorder at the school and ensure that all school employees are training every two years in the care of students with epilepsy and seizure disorder, including an online or in-person course of instruction approved by the Department of Health and Senior Services. School personnel shall obtain a release from a student’s parent authorizing the sharing of medical information with other school employees as necessary.
No school employee (including, but not limited to, a school nurse, a school bus driver, a school bus aide, or any other officer or agent of a school) shall be held liable for any good faith act or omission consistent with the provisions of this section. No action before the State Board of Nursing shall lie against a school nurse for any action taken by a school employee trained in good faith by the school nurse under this section. “Good faith” shall not be construed to include willful misconduct, gross negligence, or recklessness.
Pursuant to the emergency clause, this section took effect on June 30, 2022.
EPINEPHRINE PREFILLED AUTO SYRINGES, SCHOOL NURSE AUTHORIZED TO MAINTAIN ADEQUATE SUPPLY – ADMINISTRATION AUTHORIZED, WHEN (Section 167.630) (Amend) – Local school boards may authorize a school nurse licensed under chapter 355 who is employed by the school district and for whom the board is responsible to maintain an adequate supply of prefilled auto syringes of epinephrine with fifteen-hundredths milligram or three-tenths milligram delivery at the school. A prescription written by a licensed physician, a physician’s assistant, or nurse practitioner is required to obtain such syringes. A school nurse, contracted agent trained by a nurse, or other employee trained and supervised by the nurse shall have the discretion to use an epinephrine auto syringe on any student who they believe is having a life-threatening anaphylactic reaction, based on training in recognizing an acute episode of an anaphylactic reaction. The provisions of section 167.624 (concerning immunity from civil liability for trained employees administering lifesaving methods) shall apply to trained employees administering a prefilled auto syringe under this section. Trained contracted agents shall have immunity from civil liability for administering a prefilled auto syringe under this section.
COMPASSIONATE CARE VISITATION ACT – CITATION OF LAW – DEFINITIONS – COMPASSIONATE CARE VISITS TO BE PERMITTED, POLICY – LIMITATIONS – INFORMATIONAL MATERIALS – VIOLATIONS MAY BE REPORTED – IMMUNITY FROM LIABILITY, WHEN (Sections 191.1400) (New) – This section shall be known as may be cited as the “Compassionate Care Visitation Act.” For purposes of this section, the following terms are defined:
- “Compassionate care visitor”
- “Compassionate care visit”
- “Health care facility”
A health care facility shall allow a patient or resident (or their legal guardian) to permit at least two compassionate care visitors simultaneously to have in-person contact with the patient or resident during visiting hours. Compassionate care visitation hours shall be no less than six hours daily (including evenings, weekends, and holidays). Health care facilities shall be permitted to place additional restrictions on children under the age of fourteen who are compassionate care visitors. Health care facilities shall have a visitation policy that includes minimum statutory standards. This section shall not affect any obligation of a health care facility to (1) provide patients or residents with effective communication supports or other reasonable accommodations to assist in remote personal contact and (2) comply with the provisions of the Americans with Disabilities Act of 1990. A health care facility may limit:
- the number of visitors per patient or resident at one time based on the size of the building and physical space;
- movement of visitors within the health care facility;
- access of any person to a patient at the request of the patient or resident (or their legal guardian); at the request of law enforcement; due to a court order; to prevent disruption of care; during the administration of emergency care in critical situations; if the person has measurable signs and symptoms of a transmissible infection; if the health care facility has reasonable cause to suspect the person of being a danger or otherwise contrary to the health or welfare of the patient or resident, other patients or residents, or facility staff; or
- If (in the clinical judgment of the attending physician of the patient or resident) the presence of visors would be medically or therapeutically detrimental to the health or life of the patient.
Nothing in this section shall:
- Limit a health care facility from limiting or redirecting visitors of a patient or resident in a shared room to ensure the health and safety of the patients or residents;
- Be construed to prohibit health care facilities from adopting reasonable safety or security restrictions or other requirements for visitors; and
- Be construed to waive or change the rights of long-term care facility residents under sections 198.088 and 198.090.
By January 1, 2023, the Department of Health and Senior Services shall develop informational materials for patients, residents, and their legal guardians regarding the provisions of this section. Health care facilities shall make these informational materials accessible upon admission or registration, and on the primary website of the facility.
A compassionate care visitor may report any violation of the Compassionate Care Visitation Act by a health care facility to the Department of Health and Senior Services. The department shall investigate any such complaint within thirty-six hours of receipt.
No health care facility shall be held liable for damages in an action involving a liability claim against the facility arising from compliance with the provisions of this section. This immunity shall not apply to any act or omission by a facility, its employees, or its contractors that constitutes recklessness or willful misconduct and shall be provided in addition to (and shall in no way limit) any other immunity protections that may apply in state or federal law.
This section has been merged with section 191.1400 in HB 2116, entitled the “No Patient Left Alone Act.”
ESSENTIAL CAREGIVER PROGRAM ACT – CITATION OF LAW – DEFINITIONS – STATE OF EMERGENCY, DESIGNATED CAREGIVER DESIGNATION – REQUIREMENTS (Sections 191.2290 and 630.202) (New) – These sections shall be known as and may be cited as the “Essential Caregiver Program Act.” For purposes of these sections, the following terms are defined:
- “Essential caregiver”
During a state of emergency declared pursuant to chapter 44 relating to infectious, contagious, communicable, or dangerous diseases, a facility shall allow a resident or patient who has not been adjudged incapacitated under chapter 475, their guardian, or their legally authorized representative to designate an essential caregiver for in-person contact with the resident in accordance with the standards or guidelines developed by the Department of Health and Senior Services.
The Department of Health and Senior Services shall develop standards and guidelines concerning the essential caregiver program. A facility shall allow at least two individuals per resident or patient to be designated as essential caregivers, although the facility may limit the in-person contact to one caregiver at a time. The facility shall establish a reasonable in-person contact schedule to allow the essential caregiver to provide care at least four hours each day (including evenings, weekends, and holidays), but shall allow for twenty-four-hour in-person care as necessary and appropriate for the well-being of the patient or resident. The facility shall establish procedures to enable physical contact between the resident or patient and the essential caregiver, but the facility may not require the caregiver to undergo more stringent procedures than those required of facility employees. The facility shall specify the criteria that it will use to determine whether in-person contact is inconsistent with the therapeutic care and treatment of the resident or patient or is a safety risk to other residents, patients, or facility staff. Any limitations placed upon a particular essential caregiver shall reviewed and documented every seven days to determine if they remain appropriate. The facility may restrict or revoke in-person contact by an essential caregiver who fails to follow required protocols and procedures established under subsection 5.
A facility may request from the Department of Health and Senior Services a suspension of in-person contact by essential caregivers for a period not to exceed seven days. A facility may request extension of suspensions, but the department shall not approve an extension period for longer than seven days at a time. A facility shall not suspend in-person caregiver contact for more than fourteen consecutive days in a twelve-month period or for more than forty-five total days in a twelve-month period. The department shall suspend in-person contact by essential caregivers if it determines that doing so is required under federal law, including a determination that federal law requires a suspension of in-person contact by members of the resident’s care team. The attorney general shall institute all suits necessary on behalf of the state to defend the right of the state to implement the provisions of this section to ensure access by residents and patients to essential caregivers as part of their care team.
The provisions of this section shall not be construed to require an essential caregiver to provide necessary care to a resident or patient and a facility shall not require an essential caregiver to provide necessary care. In addition, the provisions of this section shall not apply to those residents or patients whose particular plan of therapeutic care and treatment necessitates restricted or otherwise limited visitation for reasons unrelated to the stated reasons for the declared state of emergency.
A facility, its employees, and its contractors shall be immune from civil liability for an injury or harm caused by or resulting from (1) exposure to a contagious disease or other harmful agent that is specified during the state of emergency declared pursuant to chapter 44, or (2) acts or omissions by essential caregivers who are present in the facility, as a result of the implementation of the essential caregiver program. This immunity shall not apply to any act or omission by a facility, its employees, or its contractors that constitutes recklessness or will misconduct.
CCS HCS SS SCS SBs 775, 751 & 640 (Thompson Rehder) – Relating to judicial proceedings, with penalty provisions
05/12/2022 – Truly Agreed To and Finally Passed
05/18/2022 – Presented to Governor
07/01/2022 – Signed by Governor
SECONDARY SOURCES DO NOT CONSTITUTE LAW OR PUBLIC POLICY, WHEN (Section 1.016) (New) – A secondary source (including a legal treatise, scholarly publication, textbook, or other explanatory text) does not constitute the law or public policy of the state of Missouri to the extent that:
- Its adoption would create, eliminate, expand, or restrict a cause of action, right, or remedy; or
- It is inconsistent with, in conflict with, or otherwise not addressed by Missouri statutory law or Missouri appellate case law precedent.
SS SCS HCS HB 2116, 2097, 1690 & 2221 (Black) – Relating to the visitation rights of patients
05/13/2022 – Truly Agreed To and Finally Passed
05/18/2022 – Presented to Governor
06/30/2022 – Signed by Governor
see Sections 191.1400, 191.2290, and 630.202 under SB 710 (above)
PERSONAL PRIVACY PROTECTION ACT – CITATION OF LAW – DEFINITIONS (Section 105.1500) (New) – This section shall be known as and may be cited as “The Personal Privacy Protection Act.” For purposes of this section, the terms “personal information” and “public agency” are defined. Notwithstanding any provision of law to the contrary (but subject to exceptions listed under subsection 4 of this section), no public agency shall:
- Require any individual to provide the public agency with personal information or otherwise compel the release of personal information;
- Require any entity exempt from federal income taxation under Section 501(c) of the Internal Revenue Code to provide the public agency with personal information or otherwise compel the release of personal information;
- Release, publicize, or otherwise publicly disclose personal information in possession of a public agency; or
- Request or require a current or prospective contractor or grantee with the public agency to provide the public agency with a list of entities exempt from federal income taxation under Section 501(c) of the Internal Revenue Code of 1986, as amended, to which it has provided financial or nonfinancial support.
All personal information in the possession of a public agency shall be considered a closed record under chapter 610 and Supreme Court Operating Rules.
Under subsection 4, the provisions of this section shall not preclude any individual or entity from being required to comply with any of the following:
- Submitting any report or disclosure required by chapter 105 or chapter 130;
- Responding to any lawful request or subpoena for personal information from the Missouri Ethics Commission as a part of an investigation, or publicly disclosing personal information as a result of an enforcement action from the Missouri Ethics Commission pursuant to its authority in sections 105.955 to 105.966;
- Responding to any lawful warrant for personal information issued by a court of competent jurisdiction;
- Responding to any lawful request for discovery of personal information in litigation if the requestor demonstrates a compelling need for the personal information by clear and convincing evidence and obtains a protective order barring disclosure of personal information to any person not named in the litigation;
- Applicable court rules or admitting any personal information as relevant evidence before a court of competent jurisdiction (provided the submission of personal information to a court shall be made in a manner that it is not publicly revealed and no court shall publicly reveal personal information absent a specific finding of good cause); or
Any report or disclosure required by state law to be filed with the Secretary of State, provided that personal information so obtained is otherwise subject to the requirements of paragraph (c) of subdivision (1) of subsection 3 of this section, unless expressly required to be made public by state law.
A person or entity alleging a violation of this section may bring a civil action for appropriate injunctive relief, damages, or both. Damages awarded under this section may include one of the following (as appropriate):
- A sum of moneys not less than $2,500 to compensate for injury or loss caused by each violation; or
- A sum of moneys not to exceed three times the sum described above.
In rendering a judgment in such an action, a court may aware all or a portion of the costs of litigation, including reasonable attorney’s fees and witness fees, to the complainant if the court determines that the award is appropriate.
A person who knowingly violates this section shall be guilty of a class B misdemeanor.