(1) As used in this section: (a) "Health care resource" means: (i) health care as defined in Section 78B-3-403; (ii) a prescription drug as defined in Section 58-17b-102; (iii) a prescription device as defined in Section 58-17b-102; (iv) a nonprescription drug as defined in Section 58-17b-102; or (v) any supply or treatment that is intended for use in the course of providing health care as defined in Section 78B-3-403. (b) (i) "Rationing criteria" means any requirement, guideline, process, or recommendation regarding: (A) the distribution of a scarce health care resource; or (B) qualifications or criteria for a person to receive a scarce health care resource. (ii) "Rationing criteria" includes crisis standards of care with respect to any health care resource. (c) "Scarce health care resource" means a health care resource: (i) for which the need for the health care resource in the state or region significantly exceeds the available supply of that health care resource in that state or region; (ii) that, based on the circumstances described in Subsection (1)(c)(i), is distributed or provided using written requirements, guidelines, processes, or recommendations as a factor in the decision to distribute or provide the health care resource; and (iii) that the federal government has allocated to the state to distribute. (2) (a) On or before July 1, 2022, the department shall make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to establish a procedure that the department will follow to adopt, modify, require, facilitate, or recommend rationing criteria. (b) Beginning July 1, 2022, the department may not adopt, modify, require, facilitate, or recommend rationing criteria unless the department follows the procedure established by the department under Subsection (2)(a). (3) The procedures developed by the department under Subsection (2) shall include, at a minimum: (a) a requirement that the department notify the following individuals in writing before rationing criteria are issued, are recommended, or take effect: (i) the General Oversight Committee created in Section 36-35-102; (ii) the governor or the governor's designee; (iii) the president of the Senate or the president's designee; (iv) the speaker of the House of Representatives or the speaker's designee; (v) the executive director or the executive director's designee; and (vi) if rationing criteria affect hospitals in the state, a representative of an association representing hospitals throughout the state, as designated by the executive director; and (b) procedures for an emergency circumstance which shall include, at a minimum: (i) a description of the circumstances under which emergency procedures described in this Subsection (3)(b) may be used; and (ii) a requirement that the department notify the individuals described in Subsections (3)(a)(i) through (vi) as soon as practicable, but no later than 48 hours after the rationing criteria take effect. (4) The requirements described in this section and rules made under this section shall apply regardless of whether rationing criteria: (a) have the force and effect of law, or is solely advisory, informative, or descriptive; (b) are carried out or implemented directly or indirectly by the department or by other individuals or entities; or (c) are developed solely by the department or in collaboration with other individuals or entities. (5) This section: (a) may not be suspended under Section 53-2a-209 or any other provision of state law relating to a state of emergency; (b) does not limit a private entity from developing or implementing rationing criteria; and (c) does not require the department to adopt, modify, require, facilitate, or recommend rationing criteria that the department does not determine to be necessary or appropriate. (6) Subsection (2) does not apply to rationing criteria that are adopted, modified, required, facilitated, or recommended by the department: (a) through the regular, non-emergency rulemaking procedure described in Section 63G-3-301; (b) if the modification is solely to correct a technical error in rationing criteria such as correcting obvious errors and inconsistencies including those involving punctuation, capitalization, cross references, numbering, and wording; (c) to the extent that compliance with this section would result in a direct violation of federal law; (d) that are necessary for administration of the Medicaid program; (e) if state law explicitly authorizes the department to engage in rulemaking to establish rationing criteria; or (f) if rationing criteria are authorized directly through a general appropriation bill that is validly enacted.
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