Title 36 — Public Health and Safety

Chapter 1 State and Local Boards and Departments of Health

Article 1 Department of Health Services

§ 36-101 Definitions

In this chapter, unless the context otherwise requires:

1. "Agency" includes one or more of the governmental units consolidated into the department of health services by this chapter.

2. "Department" means the department of health services.

3. "Director" means the director of the department of health services.

4. "State plan" means any of the several state plans administered by the department that meet the federal requirements necessary for federal funding.

§ 36-102 Department of health services; director; appointment; compensation

A. There is established a department of health services.

B. The direction, operation and control of the department are the responsibility of the director.

C. The director shall be appointed by the governor pursuant to section 38-211 and shall serve at the pleasure of the governor. The director shall be a person who has:

1. Administrative experience in the private sector, with progressively increasing responsibilities.

2. An educational background that prepares the director for the administrative responsibilities assigned to the position.

3. Health related experience which insures familiarity with the peculiarities of health problems.

D. Compensation for the director shall be established pursuant to section 38-611.

§ 36-103 Department organization; deputy director; assistant directors

A. The director may establish, abolish or reorganize the positions or organizational units within the department to carry out the functions provided by this section and section 36-104, subject to legislative appropriation, if in his judgment such modification of organization would make the operation of the department more efficient, effective or economical. The director or his deputy shall enforce cooperation among the divisions in the provision and integration of all functions.

B. There shall be a deputy director of the department who is appointed by the director with the approval of the governor. The deputy director shall be subject to title 41, chapter 4, article 4, shall serve at the pleasure of the director and shall receive compensation as determined pursuant to section 38-611. The deputy director shall assist the director in administering the department and its services.

C. The director may appoint an assistant director to each organizational unit that the director establishes. Each such assistant director shall be subject to title 41, chapter 4, article 4, shall serve at the pleasure of the director and shall receive compensation as determined pursuant to section 38-611.

§ 36-103.01 Governmental units succeeded; statutory references to succeeded governmental units

A. The department succeeds to the authority, powers, duties and responsibilities of the following:

1. State department of health.

2. Arizona health planning authority.

3. Crippled children's services.

4. Arizona state hospital.

5. Anatomy board.

B. In the Arizona Revised Statutes, references to the agencies and departments listed in subsection A of this section shall be deemed to be references to the department of health services or its appropriate organizational units.

C. In the Arizona Revised Statutes, references to the state board of health, when used in the context of and in connection with the adoption of rules, the appellate or original review of administrative decisions, or the approval of decisions by department officers, shall be references to the director of the department of health services. In all other places, references to the state board of health shall be references to the department of health services.

D. In this title, and in the Arizona Revised Statutes, references to the commissioner of health shall be references to the director of the department of health services.

§ 36-104 Powers and duties

This section is not to be construed as a statement of the department's organization. This section is intended to be a statement of powers and duties in addition to the powers and duties granted by section 36-103. The director shall:

1. Administer the following services:

(a) Administrative services, which shall include at a minimum the functions of accounting, personnel, standards certification, electronic data processing, vital statistics and the development, operation and maintenance of buildings and grounds used by the department.

(b) Public health support services, which shall include at a minimum:

(i) Consumer health protection programs, consistent with paragraph 25 of this section, that include at least the functions of community water supplies, general sanitation, vector control and food and drugs.

(ii) Epidemiology and disease control programs that include at least the functions of chronic disease, accident and injury control, communicable diseases, tuberculosis, venereal disease and others.

(iii) Laboratory services programs.

(iv) Health education and training programs.

(v) Disposition of human bodies programs.

(c) Community health services, which shall include at a minimum:

(i) Medical services programs that include at least the functions of maternal and child health, preschool health screening, family planning, public health nursing, premature and newborn program, immunizations, nutrition, dental care prevention and migrant health.

(ii) Dependency health care services programs that include at least the functions of need determination, availability of health resources to medically dependent individuals, quality control, utilization control and industry monitoring.

(iii) Children with physical disabilities services programs.

(iv) Programs for the prevention and early detection of an intellectual disability.

(d) Program planning, which shall include at least the following:

(i) An organizational unit for comprehensive health planning programs.

(ii) Program coordination, evaluation and development.

(iii) Need determination programs.

(iv) Health information programs.

2. Include and administer, within the office of the director, staff services, which shall include at a minimum budget preparation, public information, appeals, hearings, legislative and federal government liaison, grant development and management and departmental and interagency coordination.

3. Make rules for the organization and proper and efficient operation of the department.

4. Determine when a health care emergency or medical emergency situation exists or occurs within this state that cannot be satisfactorily controlled, corrected or treated by the health care delivery systems and facilities available. When such a situation is determined to exist, the director shall immediately report that situation to the legislature and the governor. The report shall include information on the scope of the emergency, recommendations for solution of the emergency and estimates of costs involved.

5. Provide a system of unified and coordinated health services and programs between this state and county governmental health units at all levels of government.

6. Formulate policies, plans and programs to effectuate the missions and purposes of the department.

7. Make contracts and incur obligations within the general scope of the department's activities and operations subject to the availability of monies.

8. Be designated as the single state agency for the purposes of administering and in furtherance of each federally supported state plan.

9. Provide information and advice on request by local, state and federal agencies and by private citizens, business enterprises and community organizations on matters within the scope of the department's duties subject to the departmental rules and regulations on the confidentiality of information.

10. Establish and maintain separate financial accounts as required by federal law or regulations.

11. Advise with and make recommendations to the governor and the legislature on all matters concerning the department's objectives.

12. Take appropriate steps to reduce or contain costs in the field of health services.

13. Encourage and assist in the adoption of practical methods of improving systems of comprehensive planning, of program planning, of priority setting and of allocating resources.

14. Encourage an effective use of available federal resources in this state.

15. Research, recommend, advise and assist in the establishment of community or area health facilities, both public and private, and encourage the integration of planning, services and programs for the development of the state's health delivery capability.

16. Promote the effective use of health manpower and health facilities that provide health care for the citizens of this state.

17. Take appropriate steps to provide health care services to the medically dependent citizens of this state.

18. Certify training on the nature of sudden infant death syndrome, which shall include information on the investigation and handling of cases involving sudden and unexplained infant death for use by law enforcement officers as part of their basic training requirement.

19. Adopt protocols on the manner in which an autopsy shall be conducted under section 11-597, subsection D in cases of sudden and unexplained infant death.

20. Cooperate with the Arizona-Mexico commission in the governor's office and with researchers at universities in this state to collect data and conduct projects in the United States and Mexico on issues that are within the scope of the department's duties and that relate to quality of life, trade and economic development in this state in a manner that will help the Arizona-Mexico commission to assess and enhance the economic competitiveness of this state and of the Arizona-Mexico region.

21. Administer the federal family violence prevention and services act grants, and the department is designated as this state's recipient of federal family violence prevention and services act grants.

22. Accept and spend private grants of monies, gifts and devises for the purposes of methamphetamine education. The department shall disburse these monies to local prosecutorial or law enforcement agencies with existing programs, faith-based organizations and nonprofit entities that are qualified under section 501(c)(3) of the United States internal revenue code, including nonprofit entities providing services to women with a history of dual diagnosis disorders, and that provide educational programs on the repercussions of methamphetamine use. State general fund monies shall not be spent for the purposes of this paragraph. If the director does not receive sufficient monies from private sources to carry out the purposes of this paragraph, the director shall not provide the educational programs prescribed in this paragraph. Grant monies received pursuant to this paragraph are not lapsing and do not revert to the state general fund at the close of the fiscal year.

23. Identify successful methamphetamine prevention programs in other states that may be implemented in this state.

24. Pursuant to chapter 13, article 8 of this title, coordinate all public health and risk assessment issues associated with a chemical or other toxic fire event if a request for the event is received from the incident commander, the emergency response commission or the department of public safety and if funding is available. Coordination of public health issues shall include general environmental health consultation and risk assessment services consistent with chapter 13, article 8 of this title and, in consultation with the Arizona poison control system, informing the public as to potential public health risks from the environmental exposure. Pursuant to chapter 13, article 8 of this title, the department of health services shall also prepare a report, in consultation with appropriate state, federal and local governmental agencies, that evaluates the public health risks from the environmental exposure. The department of health services' report shall include any department of environmental quality report and map of smoke dispersion from the fire, the results of any environmental samples taken by the department of environmental quality and the toxicological implications and public health risks of the environmental exposure. The department of health services shall consult with the Arizona poison control system regarding toxicology issues and shall prepare and produce its report for the public as soon as practicable after the event. The department of health services shall not use any monies pursuant to section 49-282, subsection E to implement this paragraph.

25. Consult, cooperate, collaborate and, if necessary, enter into interagency agreements and memoranda of understanding with the Arizona department of agriculture concerning its administration, pursuant to title 3, chapter 3, article 4.1, of this state's authority under the United States food and drug administration produce safety rule (21 Code of Federal Regulations part 112) and any other federal produce safety regulation, order or guideline or other requirement adopted pursuant to the FDA food safety modernization act (P.L. 111-353; 21 United States Code sections 2201 through 2252).

26. Adopt rules pursuant to title 32, chapter 32, article 5 prescribing the designated database information to be collected by health profession regulatory boards for the health professionals workforce database.

§ 36-105 Information; state-federal cooperation

Subject to the laws and departmental rules and regulations on the confidentiality of information promulgated pursuant thereto, and upon request, the department shall furnish information to any agency of the United States which is charged with the administration of health services.

§ 36-106 Acquisition of lands and buildings

A. The director may acquire for and in the name of the state, by lease, lease-purchase agreement or otherwise, lands or buildings for the purpose of providing office space for the department at such places as the director finds necessary and suitable.

B. An agreement made for the lease or purchase of the premises mentioned in subsection A is subject to the approval of the attorney general and the director of the department of administration.

§ 36-107 Power to promulgate rules concerning confidential nature of records

The director shall promulgate such rules and regulations as are required by state law or federal law or regulation to protect confidential information. No names or other information of any applicant, claimant, recipient or employer shall be made available for any political, commercial or other unofficial purpose.

§ 36-108 Indirect cost fund; use; exemption

A. A department of health services indirect cost fund is established. Federal monies, monies collected from interagency agreements and other monies obtained for the purposes of reimbursing the department for administrative costs shall be deposited, pursuant to sections 35-146 and 35-147, in the fund.

B. Subject to legislative appropriation, monies in the fund shall be used for administrative personnel and overhead costs associated with administering federal programs, interagency agreements and other programs paying assessments into the fund.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-108.01 Department of health services funds; purposes; annual report

A. The health services lottery monies fund is established consisting of monies transferred pursuant to section 5-572, subsection C for teenage pregnancy prevention programs established by Laws 1995, chapter 190, sections 2 and 3, the health start program established by section 36-697 and the federal women, infants and children food program. The department shall administer the fund. Monies in the fund are continuously appropriated.

B. The intergovernmental agreements/interagency services agreements fund is established consisting of all monies received by the department through intergovernmental agreements, interagency services agreements and transfers between the department and other state and local entities. The department shall administer the fund. Monies in the fund are continuously appropriated.

C. The department shall report annually to the joint legislative budget committee on the revenues, expenditures and ending balances from the previous, current and subsequent fiscal years of the funds established in this section.

§ 36-109 Hospitals; health care facilities; substance abuse treatment; reporting requirements

A. On or before September 1, 2018 and each quarter thereafter, each hospital or health care facility in this state that provides substance abuse treatment shall submit to the department on a form prescribed by the department a report that includes at least the following information:

1. The name and address of the hospital or health care facility where the substance abuse treatment is provided.

2. The type of hospital or health care facility where the substance abuse treatment is provided.

3. The number of available substance abuse treatment beds.

4. The number of days in the quarter that the hospital or health care facility was at capacity and not able to accept referrals for substance abuse treatment.

B. The form may be signed electronically and shall indicate that the person who signs the report is attesting that the information in the report is correct to the best of that person's knowledge.

C. A report pursuant to this section shall be filed electronically at an internet website that is designated by the department unless the person required to file the report applies for a waiver from electronic reporting by submitting a written request to the department.

D. The department shall request outpatient substance abuse treatment providers to report to the department on a quarterly basis regarding the provider's outpatient treatment capacity.

E. On or before December 31, 2018 and each quarter thereafter, the director shall submit a report to the governor, the president of the senate and the speaker of the house of representatives on the availability of substance abuse treatment beds, the possible capacity, including outpatient treatment capacity, and any unmet need in this state. The director shall submit a copy of the report to the secretary of state. The report shall include all of the information specified in subsection A of this section.

§ 36-110 County or district liaison; duties

A. The department shall assign a county liaison officer for each county of the state. Each county liaison officer shall function as a liaison between the department and county health officials, local health planning groups, health consumer groups, private health care agencies and programs and any other health-related concerns within such county. An officer may serve more than one county.

B. Such liaison officers may:

1. Evaluate the success of state programs, coordination and integration in local health planning.

2. Relay deficiencies of local health programs and services to the department.

3. Act as a means of input for local concerns of health to the department.

4. Work to provide successful delivery of health services at the community level.

5. Provide information on client needs and services effectiveness to the department.

C. If the director determines that regional health planning has been established for the state, he shall establish, in lieu of the county liaison officers prescribed in subsection A, district liaison offices in each of the regions that are established. Such district liaison offices shall carry out the functions prescribed by subsections A and B within such region.

§ 36-111 Hearings and appeals

Appeals heard by the department shall be conducted in accordance with title 41, chapter 6, article 10.

§ 36-112 Umbilical cord blood; information pamphlet; distribution; health care institution responsibilities; definition

A. On or before January 1, 2007, the department of health services shall prepare a pamphlet that includes information regarding the following:

1. The medical processes involved in the collection of umbilical cord blood.

2. The medical risks of umbilical cord blood collection to the mother and her newborn child.

3. The current and potential future medical uses, risks and benefits of umbilical cord blood collection to a mother, her newborn child and her biological family.

4. The current and potential future medical uses, risks and benefits of umbilical cord blood collection to persons who are not biologically related to a mother or her newborn child.

5. Any costs that may be incurred by a pregnant woman who chooses to make an umbilical cord blood donation.

6. Options for ownership and future use of the donated material.

7. The average cost of public and private umbilical cord blood banking.

B. The department shall update the pamphlet prepared pursuant to this section as necessary.

C. The department shall distribute the pamphlet free of charge to physicians and health care institutions on request and shall make the pamphlet available on its web site.

D. The department may accept gifts, grants and donations for the purposes of this section.

E. A health care institution licensed pursuant to chapter 4 of this title that treats a pregnant woman during the delivery of her child shall permit her to arrange for an umbilical cord blood donation if she has made this request unless, in the professional judgment of a health care provider, the donation would threaten the health of the mother or the newborn child.

F. This section does not impose an obligation on a health care provider to permit an umbilical cord blood collection if the collection conflicts with the provider's bona fide religious beliefs and the provider makes this fact known to the woman as soon as reasonably feasible.

G. A health care institution that acts in good faith pursuant to this section is not subject to civil or criminal liability or regulatory discipline for those acts.

H. For the purposes of this section, "umbilical cord blood" means the blood that remains in the umbilical cord and placenta after the birth of a newborn child.

§ 36-113 Fingerprint clearance cards; information technology positions; vital records systems; facility surveyors; definition

A. Each employee or contractor of the department who is employed or contracted in an information technology position or who has access to vital records systems shall have a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 or provide to the department documentation that the person has applied for a fingerprint clearance card. Each employee and contractor shall certify on forms that are provided by the department that the person is not awaiting trial on or has not been convicted of any of the criminal offenses listed in section 41-1758.07, subsections B and C in this state or similar offenses in another state or jurisdiction.

B. The department may not allow a person to be an employee or contractor in an information technology position or have access to vital records systems if that person has been denied a fingerprint clearance card pursuant to section 41-1758.07 or has not received an interim approval from the board of fingerprinting pursuant to section 41-619.55.

C. Each county employee or contractor who has access to vital records systems shall have a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1.

D. A local registrar may not allow a person to be an employee or contractor with access to vital records systems if that person has been denied a fingerprint clearance card pursuant to section 41-1758.07 or has not received an interim approval from the board of fingerprinting pursuant to section 41-619.55.

E. Each employee of the department who inspects facilities with children or vulnerable adults as part of the employee's regular duties shall have a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 or provide to the department documentation that the person has applied for a fingerprint clearance card. Each employee shall certify on forms that are provided by the department that the employee is not awaiting trial on or has not been convicted of any of the criminal offenses listed in section 41-1758.07, subsections B and C in this state or similar offenses in another state or jurisdiction.

F. The department may not allow a person to be an employee who inspects facilities with children or vulnerable adults as part of the employee's regular duties if that person has been denied a fingerprint clearance card pursuant to section 41-1758.07 or has not received an interim approval from the board of fingerprinting pursuant to section 41-619.55.

G. For the purposes of this section, "vulnerable adult" has the same meaning prescribed in section 13-3623.

§ 36-114 Limitation upon authority to impose treatment

Nothing in this title shall authorize the department or any of its officers or representatives to impose on any person against his will any mode of treatment, provided that sanitary or preventive measures and quarantine laws are complied with by the person. Nothing in this title shall authorize the department or any of its officers or representatives to impose on any person contrary to his religious concepts any mode of treatment, provided that sanitary or preventive measures and quarantine laws are complied with by the person.

§ 36-115 Promulgation of rules

A. Except as provided in subsection C of this section, title 41, chapter 6 applies to the actions of the director and the department and to all rules promulgated under this title.

B. In addition to the requirements of title 41, chapter 6, the director shall:

1. Cause a copy of the notice required by section 41-1022 and a copy of any proposed rules to be posted in each county and district liaison office of the department which may be established.

2. Cause a copy of the notice required by section 41-1022 and a copy of each proposed rule to be made available to any interested person requesting same.

C. The director shall file the notice required by section 41-1022 with the secretary of state at least sixty days prior to the adoption of any rule pursuant to this title which relates directly to health care institutions licensed pursuant to chapter 4, article 2 of this title.

§ 36-117 Services for licensing agencies; costs

A. The department, at the discretion of the director, may contract to provide personal and other administrative services and facilities to the following health licensing agencies:

1. State dental board.

2. Arizona medical board.

3. State board of nursing.

4. State board of optometry.

5. Arizona board of osteopathic examiners in medicine and surgery.

6. State board of podiatry examiners.

7. Arizona state board of pharmacy.

8. Board of examiners of nursing care institution administrators.

B. The professional health licensing agency shall reimburse the department for the actual costs of services or the reasonable value of facilities provided to that agency.

§ 36-118 Director's seal; authentication of records

A. The director shall adopt a seal of office to be used to authenticate records and copies of records required to be made or kept by the department.

B. Records or copies of records authenticated with the director's seal shall be received in evidence in any proceeding without further proof of their authenticity.

§ 36-119 Breast and cervical cancer screening and diagnostic special plate fund

A. The breast and cervical cancer screening and diagnostic special plate fund is established consisting of monies received pursuant to section 28-2423. The director shall administer the fund. Not more than ten per cent of monies deposited in the fund annually shall be used for the cost of administering the fund. Monies in the fund are continuously appropriated. The director shall distribute monies in the fund before July 1 of each year.

B. The director shall allocate monies from the fund for breast and cervical cancer screening and diagnostics and outreach services in this state. Monies allocated pursuant to this section shall be used to further breast and cervical cancer screening and diagnostics.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-120 Multiple sclerosis awareness fund

A. The multiple sclerosis awareness fund is established consisting of monies received pursuant to section 28-2440. The director shall administer the fund. Not more than ten per cent of monies deposited in the fund annually shall be used for the cost of administering the fund. Monies in the fund are continuously appropriated. The director shall distribute monies in the fund before July 1 of each year.

B. The director shall allocate monies from the fund for multiple sclerosis awareness and outreach services in this state.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-121 Childhood cancer and rare childhood disease research fund

A. The childhood cancer and rare childhood disease research fund is established consisting of monies received pursuant to section 28-2442. The director shall administer the fund. Not more than ten per cent of monies deposited in the fund annually shall be used for the cost of administering the fund. The first thirty-two thousand dollars received shall be reimbursed to the person or entity that paid the implementation fee. Monies in the fund are continuously appropriated. The director shall annually distribute monies in the fund.

B. The director shall allocate monies from the fund to health care providers and research institutions that are located in this state, that are nonprofit organizations and that are engaged in phase I clinical trials relating to research on pediatric cancer or other rare pediatric diseases. The monies may be used in a collaborative study or research program with other facilities outside of this state. Nonprofit organizations receiving monies from the fund shall use the monies for the purposes prescribed in this subsection even if the monies are aggregated with other monies.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-122 Public health emergencies fund; exemption; report

A. The public health emergencies fund is established consisting of legislative appropriations. The director shall administer the fund. Monies in the fund are continuously appropriated and may be spent for public health emergency responses of this state following a state of emergency declaration by the governor. Monies in the fund are exempt from the provisions of section 35-190 relating to the lapsing of appropriations.

B. On or before September 1 of each year, the department shall report any expenditures from the fund to the joint legislative budget committee.

§ 36-123 Opioid abuse prevention campaign

The department, in conjunction with the governor's office of youth, faith and family, shall develop opioid abuse prevention campaign strategies that target youth and at-risk populations using a variety of communications platforms to maximize outreach. Communications efforts may include social media, broadcast, billboards and print media. Prevention components shall include graphic detail of the harmful effects of opioid and prescription drug abuse and law enforcement consequences and shall engage external partners, including the local education agency, for age-appropriate awareness.

§ 36-123.01 Drug disposal education and awareness; controlled substances; public-private partnership; fund

A. On or before January 1, 2019, the department shall enter into a public-private partnership to develop an education and awareness program regarding the disposal of prescription drugs, including controlled substances, nonprescription drugs, needles and sharps. The education and awareness program may include:

1. A web-based resource that:

(a) Describes available drug disposal options, including drug disposal take-back sites, drug disposal take-back events, in-home drug disposal options that render products safe from misuse and any other method that complies with state and federal laws and the rules adopted pursuant to those laws.

(b) May reduce the availability of unused controlled substances and may minimize the potential environmental impact of drug disposal options.

(c) Provides a list of drug disposal take-back sites that may be sorted and searched by name or location.

(d) Provides a list of drug disposal take-back events in this state, including the date, time and location information for each event.

(e) Describes appropriate disposal methods for needles and sharps and location sites providing for disposal of needles and sharps.

2. Educational activities designed to ensure consumer awareness of the safe storage and effective disposal of prescription drugs, including controlled substances, and nonprescription drugs.

B. The drug disposal education and awareness fund is established consisting of monies donated or contributed to the fund by private persons or organizations. The department shall administer the fund. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations. Monies in the fund shall be used to pay for the costs of administering the education and awareness program established pursuant to this section.

§ 36-123.02 Alzheimer's disease research fund; exemption

A. The Alzheimer's disease research fund is established consisting of monies received pursuant to section 28-2463. The director shall administer the fund. The first $32,000 received shall be reimbursed to the person who pays the implementation fee pursuant to section 28-2463. Not more than ten percent of monies deposited in the fund annually shall be used for the cost of administering the fund. Monies in the fund are continuously appropriated. The director shall annually distribute monies in the fund.

B. The director shall annually allocate monies from the fund, excluding administrative fees, to a charitable organization that is qualified under section 501(c)(3) of the United States internal revenue code for federal income tax purposes and that meets all of the following:

1. Is headquartered in this state.

2. Has been operating in this state for at least ten years.

3. Has participating member institutions that work together to end Alzheimer's disease by using their complementary strengths in brain imaging, computer science, genomics, basic and cognitive neurosciences and clinical and neuropathology research within a statewide collaborative model.

4. Has member institutions that educate residents of this state about Alzheimer's disease, research progress and resources needed to help patients, families and professionals manage the disease.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-123.03 Congenital heart defect special plate fund

A. The congenital heart defect special plate fund is established consisting of monies received pursuant to section 28-2470.02. The director shall administer the fund. The first $32,000 received shall be reimbursed to the person who pays the implementation fee pursuant to section 28-2470.02. Not more than ten percent of monies deposited in the fund annually shall be used for the cost of administering the fund. Monies in the fund are continuously appropriated. The director shall annually distribute monies in the fund.

B. The director shall annually allocate monies from the fund, excluding administrative fees, to a hospital's foundation that is qualified under section 501(c)(3) of the United States internal revenue code for federal income tax purposes and that meets both of the following:

1. Is headquartered in this state.

2. Supports a hospital that has been operating in this state for at least thirty-seven years, that has a primary focus of pediatric patient care and that has a heart center.

C. The monies allocated from the fund shall be used only for congenital heart defect research, treatment and community education and outreach.

D. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-123.04 988 suicide prevention special plate fund

A. The 988 suicide prevention special plate fund is established consisting of monies deposited pursuant to section 28-2470.27. The director shall administer the fund. The first $32,000 received shall be reimbursed to the person that pays the implementation fee to the department of transportation pursuant to section 28-2470.27. Not more than ten percent of the monies deposited in the fund annually shall be used for the cost of administering the fund. Monies in the fund are continuously appropriated.

B. On notice from the director, the state treasurer may invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

C. The director shall annually allocate monies from the fund to an entity in this state that:

1. Supports the continued operation of the national 988 suicide and crisis lifeline.

2. Answers calls in this state from the national 988 suicide and crisis lifeline.

Article 1.1 Uniform Reporting

§ 36-125.04 Financial statements; uniform accounting report; exemption

A. Each licensed hospital shall submit to the department an annual financial statement prepared in accordance with generally accepted accounting principles. The statement shall be accompanied by a report of an audit by an independent certified public accountant of the financial statement conducted in accordance with generally accepted auditing standards. Each hospital shall submit the statement within one hundred twenty days of the end of its fiscal year unless the director grants an extension in writing in advance of that date.

B. If a hospital is part of a consolidated or combined group and is normally included in that group's financial statement, the hospital may submit a consolidated or combined statement if the group's statement identifies each of the group's separately licensed hospitals and nursing care institutions operating in this state. For each hospital or nursing care institution operating in this state and for each additional operating unit which accounts for five per cent or more of the consolidated or combined group's gross revenues, the statement shall include financial balances and information for that unit including a balance sheet, an income statement, a statement of changes in equity or fund balance and a statement of cash flows. This information shall be presented as "other financial information" in columnar format in the details of consolidation or combination. All other operating units of the group may be included in a single column labeled "other" provided that a footnote identifies each unit and the gross revenue associated with each unit. The financial information for each hospital included in a consolidated or combined financial statement shall reflect financial balances and information for only the hospital and shall not include nonhospital operations.

C. Each hospital, nursing care institution and hospice shall submit a uniform accounting report to the department annually that includes the following:

1. A balance sheet detailing the assets, liabilities and net worth.

2. A statement of income and expenses.

3. A statement of cash flows.

4. A copy of annual financial and statistical documents submitted to the United States department of health and human services in accordance with the requirements of title XVIII and title XIX of the social security act.

5. Utilization and staffing information and standard units of measure as prescribed by rules.

D. In place of the information required by subsection C, the director may permit a health care institution to file current cost reports and financial information that the institution files for other governmental reporting purposes, except that a health care institution shall file all information required by the Arizona health care cost containment system administration pursuant to title XVIII or XIX of the social security act. The department may require by rule the submission of additional information or schedules to supplement the alternative cost reports and financial information.

E. In addition to the information prescribed in subsection C, a hospital shall also include with its title XVIII cost report all pertinent data, separately stated, on the title XIX program and the state-only funded medical programs under the Arizona health care cost containment system. A hospital may request a one year waiver from the department if logs and financial systems need to be changed in order to comply with this subsection.

F. The department shall prescribe and furnish forms for the uniform accounting report submitted pursuant to subsection C.

G. All reports filed pursuant to this section are open to public inspection at the offices of the department. The department shall ensure that this public access to reports does not breach confidentiality of privileged medical information or privileged information on an individual's work performance or earnings.

H. If further investigation is considered necessary or desirable to verify the accuracy of information in reports filed pursuant to this section, the department may further examine records and accounts related to the reporting requirements of this section. The department shall bear the cost incurred in connection with this examination unless the department finds that the records examined are significantly deficient or incorrect, in which case the department may charge the cost of the investigation to the facility examined.

I. This section does not apply to a facility owned or operated by this state.

§ 36-125.05 Uniform patient reporting system; statistical and demographic reports; exemption

A. The department shall prescribe and implement a uniform patient reporting system for hospital inpatient and emergency department services. The requirements imposed for this reporting system shall be substantially the same as the uniform billing requirements prescribed by the United States department of health and human services pursuant to titles XVIII and XIX of the social security act, as amended (42 United States Code sections 1395 through 1395pp), whether or not the effective date for the federal billing system is after January 31, 1984.

B. The department shall require hospitals to report inpatient statistical data designed to promote cost containment as the department determines. These data shall be derivable from the data obtained under the uniform patient reporting system prescribed by subsection A and, for all inpatient services, shall include the following:

1. The number of confinements.

2. The average length of stay.

3. The average charge per day.

4. The average charge per confinement, which is the product of the average length of stay multiplied by the average charge per day.

5. The average charge per confinement for each attending physician.

C. Each of the categories of data specified in subsection B shall be further categorized by one or more of the following methods as the department determines:

1. Discharge diagnoses.

2. Groupings of related diagnoses.

3. Groupings of diagnoses that typically have similar lengths of confinement.

4. Any other similar categories that may be determined by the department.

D. The department shall require hospital emergency departments to report outpatient service statistical data designed to promote cost containment. The department shall adopt rules establishing the procedures for reporting. These data shall be derivable from the data obtained under the uniform patient reporting system prescribed in subsection A, and shall include the following:

1. Date of service.

2. Surgical procedures.

3. Related diagnosis.

4. Charges for services.

E. The department may require hospitals and emergency departments to report other clinical and demographic data regarding patient age, sex or insurance coverage for inpatient and emergency department services.

F. The state hospital is exempt from the reporting requirements imposed by subsections B, D and E.

G. The data from the period beginning January 1 and ending June 30 of each year shall be reported on or before August 15 of that year. The data from the period beginning July 1 and ending December 31 of each year shall be reported on or before February 15 of the following year.

H. All reports filed pursuant to this section are open to public inspection at the offices of the department. The department shall ensure that this public access to reports does not breach confidentiality of privileged medical information or privileged information on an individual's work performance or earnings.

I. If further investigation is considered necessary or desirable to verify the accuracy of information in reports submitted under this section, the department may further examine records and accounts related to the reporting requirements of this section. The department shall bear the cost incurred in connection with this examination unless the department finds that the records examined are significantly deficient or incorrect, in which case the department may charge the cost of the investigation to the facility examined.

§ 36-125.06 Comparative report; brochure

A. The director shall publish a semiannual comparative report of patient charges utilizing the statistical data submitted pursuant to section 36-125.05, subsections B through E. The comparative report shall be in the format prescribed by the director and shall be published within sixty days after the date the statistical data are required to be submitted by hospitals and emergency departments to the department pursuant to section 36-125.05, subsection G. Copies of the report shall be delivered to the governor, the president of the senate and the speaker of the house of representatives and placed on file with the Arizona state library, archives and public records.

B. The director shall publish a brochure semiannually at the same time as the comparative report is published pursuant to subsection A of this section. The brochure shall be in the format prescribed by the director and shall contain a simple and concise comparison among hospitals and emergency departments in the same geographic region of average charges per confinement for the most common diagnoses and procedures for inpatient and emergency department services. Each hospital shall obtain copies of all current brochures for its geographic region and shall make available in its reception area a sufficient number of these brochures for free distribution of one copy to each individual requesting a copy. A hospital may charge a fee sufficient to cover the cost of postage and handling, if any, for each brochure, if mailed. The director shall provide on request a sufficient number of brochures to any authorized local agency as defined in section 36-401 and any other person or group requesting copies. The director shall not charge for brochures provided by the department.

§ 36-125.07 Uniform billing; third party payors; exception; definitions

A. A person, including a third party payor, who is obligated to pay a charge for any item or service that is subject to the uniform billing requirements of section 36-125.05 shall accept such billing as its principal billing format.

B. A person, including a third party payor, who is obligated to pay a charge for any item or service may require that a hospital subject to the uniform billing requirements of section 36-125.05 submit existing supplemental information in conjunction with the uniform billing form in order to substantiate billing for emergency services. Except for the Arizona health care cost containment system and counties providing indigent health care as defined in subsection D, paragraphs 13 and 14 of this section, such person shall pay the reasonable cost to the hospital of reproducing such supplemental information that shall be related solely to such emergency services.

C. For purposes of this section:

1. "Person" includes this state, any of its agencies, boards or commissions, any political subdivision of this state and any agency, board or commission of any such political subdivision.

2. "Third party payor" means any person obligated to pay for items or services provided to another. Third party payor includes the following:

(a) Insurers as defined in section 20-104, including any insurer transacting any kind of insurance defined in title 20, chapter 2, article 2.

(b) Hospital, medical, dental and optometric service corporations as defined in section 20-822.

(c) Fraternal benefit societies as defined in section 20-861.

(d) Prepaid dental plan organizations as defined in section 20-1001.

(e) Health care services organizations as defined in section 20-1051.

(f) Any person writing disability insurance policies subject to title 20, chapter 6, article 4.

(g) Any person writing group or blanket disability insurance policies subject to title 20, chapter 6, article 5.

(h) Providers of life care contracts as defined in section 20-1801.

(i) Insurance carriers as defined in section 23-901.

(j) Insurance carriers writing motor vehicle liability policies.

(k) The Arizona health care cost containment system established pursuant to chapter 29 of this title.

(l) Counties providing indigent health care.

(m) Self-insured persons.

§ 36-126 Violation; civil penalties

A. A person who violates this article or a rule adopted under this article is subject to a civil penalty of not to exceed three hundred dollars for each violation. Each day that a violation continues constitutes a separate violation. The director shall issue a notice of the violation and the penalty pursuant to title 41, chapter 6, article 10. A person may appeal the penalty by filing a written request for a hearing within thirty days after receiving the notice. The department shall conduct this hearing pursuant to title 41, chapter 6, article 10. The director shall not enforce the penalty until the hearing is concluded.

B. The attorney general shall enforce penalties imposed under this section in the justice court or the superior court in the county in which the violation occurred.

C. Penalties imposed under this section are in addition to other penalties imposed under this chapter. Penalties collected pursuant to this section shall be deposited in the state general fund.

Article 2 Department of Health Services; Additional Functions

§ 36-131 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

§ 36-132 Department of health services; functions; contracts

A. The department, in addition to other powers and duties vested in it by law, shall:

1. Protect the health of the people of the state.

2. Promote the development, maintenance, efficiency and effectiveness of local health departments or districts of sufficient population and area that they can be sustained with reasonable economy and efficient administration, provide technical consultation and assistance to local health departments or districts, provide financial assistance to local health departments or districts and services that meet minimum standards of personnel and performance and in accordance with a plan and budget submitted by the local health department or districts to the department for approval, and recommend the qualifications of all personnel.

3. Collect, preserve, tabulate and interpret all information required by law in reference to births, deaths and all vital facts, and obtain, collect and preserve information relating to the health of the people of this state and the prevention of diseases as may be useful in the discharge of functions of the department not in conflict with chapter 3 of this title and sections 36-693, 36-694 and 39-122.

4. Operate sanitariums, hospitals or other facilities assigned to the department by law or by the governor.

5. Conduct a statewide program of health education relevant to the powers and duties of the department, prepare educational materials and disseminate information as to conditions affecting health, including basic information to promote good health on the part of individuals and communities, and prepare and disseminate technical information concerning public health to the health professions, local health officials and hospitals. In cooperation with the department of education, the department of health services shall prepare and disseminate materials and give technical assistance for the purpose of educating children in hygiene, sanitation and personal and public health, and provide consultation and assistance in community organization to counties, communities and groups of people.

6. Administer or supervise a program of public health nursing, prescribe the minimum qualifications of all public health nurses engaged in official public health work, and encourage and aid in coordinating local public health nursing services.

7. Encourage and aid in coordinating local programs concerning control of preventable diseases in accordance with statewide plans that shall be formulated by the department.

8. Encourage and aid in coordinating local programs concerning maternal and child health, including midwifery, antepartum and postpartum care, infant and preschool health and the health of schoolchildren, including special fields such as the prevention of blindness and conservation of sight and hearing.

9. Encourage and aid in coordinating local programs concerning nutrition of the people of this state.

10. Encourage, administer and provide dental health care services and aid in coordinating local programs concerning dental public health, in cooperation with the Arizona dental association. The department may bill and receive payment for costs associated with providing dental health care services and shall deposit the monies in the oral health fund established by section 36-138.

11. Establish and maintain adequate serological, bacteriological, parasitological, entomological and chemical laboratories with qualified assistants and facilities necessary for routine examinations and analyses and for investigations and research in matters affecting public health.

12. Supervise, inspect and enforce the rules concerning the operation of public bathing places and public and semipublic swimming pools adopted pursuant to section 36-136, subsection I, paragraph 10.

13. Take all actions necessary or appropriate to ensure that bottled water sold to the public and water used to process, store, handle, serve and transport food and drink are free from filth, disease-causing substances and organisms and unwholesome, poisonous, deleterious or other foreign substances. All state agencies and local health agencies involved with water quality shall provide to the department any assistance requested by the director to ensure that this paragraph is effectuated.

14. Enforce the state food, caustic alkali and acid laws in accordance with chapter 2, article 2 of this title, chapter 8, article 1 of this title and chapter 9, article 4 of this title, and collaborate in enforcing the federal food, drug, and cosmetic act (52 Stat. 1040; 21 United States Code sections 1 through 905).

15. Recruit and train personnel for state, local and district health departments.

16. Conduct continuing evaluations of state, local and district public health programs, study and appraise state health problems and develop broad plans for use by the department and for recommendation to other agencies, professions and local health departments for the best solution of these problems.

17. License and regulate health care institutions according to chapter 4 of this title.

18. Issue or direct the issuance of licenses and permits required by law.

19. Participate in the state civil defense program and develop the necessary organization and facilities to meet wartime or other disasters.

20. Subject to the availability of monies, develop and administer programs in perinatal health care, including:

(a) Screening in early pregnancy for detecting high-risk conditions.

(b) Comprehensive prenatal health care.

(c) Maternity, delivery and postpartum care.

(d) Perinatal consultation, including transportation of the pregnant woman to a perinatal care center when medically indicated.

(e) Perinatal education oriented toward professionals and consumers, focusing on early detection and adequate intervention to avert premature labor and delivery.

21. License and regulate the health and safety of group homes and behavioral-supported group homes for persons with developmental disabilities. The department shall issue a license to an accredited facility for a period of the accreditation, except that a licensing period shall not be longer than three years. The department is authorized to conduct an inspection of an accredited facility to ensure that the facility meets health and safety licensure standards. The results of the accreditation survey shall be public information. A copy of the final accreditation report shall be filed with the department of health services. For the purposes of this paragraph, "accredited" means accredited by a nationally recognized accreditation organization.

B. The department may accept from the state or federal government, or any agency of the state or federal government, and from private donors, trusts, foundations or eleemosynary corporations or organizations grants or donations for or in aid of the construction or maintenance of any program, project, research or facility authorized by this title, or in aid of the extension or enforcement of any program, project or facility authorized, regulated or prohibited by this title, and enter into contracts with the federal government, or an agency of the federal government, and with private donors, trusts, foundations or eleemosynary corporations or organizations, to carry out such purposes. All monies made available under this section are special project grants. The department may also expend these monies to further applicable scientific research within this state.

C. The department, in establishing fees authorized by this section, shall comply with title 41, chapter 6. The department shall not set a fee at more than the department's cost of providing the service for which the fee is charged. State agencies are exempt from all fees imposed pursuant to this section.

D. The department may enter into contracts with organizations that perform nonrenal organ transplant operations and organizations that primarily assist in the management of end-stage renal disease and related problems to provide, as payors of last resort, prescription medications necessary to supplement treatment and transportation to and from treatment facilities. The contracts may provide for department payment of administrative costs it specifically authorizes.

§ 36-133 Chronic disease surveillance system; confidentiality; immunity; violation; classification

A. A central statewide chronic disease surveillance system is established in the department. Diseases in the surveillance system shall include cancer, birth defects and other chronic diseases required by the director to be reported to the department.

B. The department, in establishing the surveillance system, shall:

1. Provide a chronic disease information system.

2. Provide a mechanism for patient follow-up.

3. Promote and assist hospital cancer registries.

4. Improve the quality of information gathered relating to the detection, diagnosis and treatment of patients with cancer, birth defects and other diseases included in the surveillance system.

5. Monitor the incidence patterns of diseases included in the surveillance system.

6. Pursuant to rules adopted by the director, establish procedures for reporting diseases included in the surveillance system.

7. Identify population subgroups at high risk for cancer, birth defects and other diseases included in the surveillance system.

8. Identify regions of this state that need intervention programs or epidemiological research, detection and prevention.

9. Establish a data management system to perform various studies, including epidemiological studies, and to provide biostatistic and epidemiologic information to the medical community relating to diseases in the surveillance system.

C. A person who provides a case report to the surveillance system or who uses case information from the system authorized pursuant to this section is not subject to civil liability with respect to providing the case report or accessing information in the system.

D. The department may authorize other persons and organizations to use surveillance data:

1. To study the sources and causes of cancer, birth defects and other chronic diseases.

2. To evaluate the cost, quality, efficacy and appropriateness of diagnostic, therapeutic, rehabilitative and preventive services and programs related to cancer, birth defects and other chronic diseases.

E. The department of health services and the Arizona early intervention program in the department of economic security may use surveillance data to notify the families of children with birth defects regarding services that are available to them and provide these families with information about organizations that provide services to these children and their families.

F. Information collected on individuals by the surveillance system that can identify an individual is confidential and may be used only pursuant to this section. A person who discloses confidential information in violation of this section is guilty of a class 3 misdemeanor.

§ 36-134 Asbestosis and mesothelioma

The department shall develop and implement by rule standards and procedures to make asbestosis and mesothelioma diseases reportable to the department.

§ 36-135 Child immunization reporting system; requirements; access; confidentiality; immunity; violation; classification; definitions

A. The child immunization reporting system is established in the department to collect, store, analyze, release and report immunization data.

B. A health care professional who is licensed under title 32 to provide immunizations, except as provided in subsection I of this section, shall report the following information:

1. The health care professional's name, business address and business telephone number.

2. The child's name, address, social security number if known and not confidential, gender, date of birth and mother's maiden name.

3. The type of vaccine administered and the date it is administered.

C. The health care professional may submit this information to the department on a weekly or monthly basis by telephone, fax, mail, computer or any other method prescribed by the department.

D. Except as provided in subsection I of this section, the department shall release identifying information only to the person, the person's health care decision maker, parent or guardian, a health care provider, an entity regulated under title 20, the Arizona health care cost containment system and its contractors as defined in chapter 29 of this title, its external quality review organization or any other entity that has a business associate agreement with the Arizona health care cost containment system, a school official who is authorized by law to receive and record immunization records, a person or entity that provides services to a health care provider and with whom the health care provider has a business associate agreement that requires the person or entity to protect the confidentiality of the information, as required by the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 164, subpart E) or a nonprofit health information organization as defined in section 36-3801 that is designated by the department as this state's official health information exchange organization. The department may also release identifying information to an entity designated by the person or the person's health care decision maker, parent or guardian. The department, by rule, may release immunization information to persons for a specified purpose. The department may release nonidentifying summary statistics.

E. Identifying information in the system is confidential. A person who is authorized to receive confidential information under subsection D of this section or pursuant to rules adopted by the department shall disclose this information only as permitted by this section or rules adopted by the department.

F. A health care provider that provides information in good faith pursuant to this section is not subject to civil or criminal liability.

G. A health care provider that does not comply with the requirements of this section violates a law applicable to the practice of medicine and commits an act of unprofessional conduct or a violation of chapter 4 of this title.

H. Any agency or person receiving confidential information from the system who subsequently discloses that information to any other person other than as permitted by this section is guilty of a class 3 misdemeanor.

I. At the request of the person, or if the person is a child the child's parent or guardian, the department of health services shall provide a form to be signed that allows confidential immunization information to be withheld from all persons including persons authorized to receive confidential information pursuant to subsection D of this section. If the request is delivered to the health care professional before the immunization, the health care professional shall not forward the information required under subsection B of this section to the department.

J. For the purposes of this section, "health care decision maker" and "health care provider" have the same meanings prescribed in section 12-2291.

§ 36-136 Powers and duties of director; compensation of personnel; rules; definitions

A. The director shall:

1. Be the executive officer of the department of health services and the state registrar of vital statistics but shall not receive compensation for services as registrar.

2. Perform all duties necessary to carry out the functions and responsibilities of the department.

3. Prescribe the organization of the department. The director shall appoint or remove personnel as necessary for the efficient work of the department and shall prescribe the duties of all personnel. The director may abolish any office or position in the department that the director believes is unnecessary.

4. Administer and enforce the laws relating to health and sanitation and the rules of the department.

5. Provide for the examination of any premises if the director has reasonable cause to believe that on the premises there exists a violation of any health law or rule of this state.

6. Exercise general supervision over all matters relating to sanitation and health throughout this state. When in the opinion of the director it is necessary or advisable, a sanitary survey of the whole or of any part of this state shall be made. The director may enter, examine and survey any source and means of water supply, sewage disposal plant, sewerage system, prison, public or private place of detention, asylum, hospital, school, public building, private institution, factory, workshop, tenement, public washroom, public restroom, public toilet and toilet facility, public eating room and restaurant, dairy, milk plant or food manufacturing or processing plant, and any premises in which the director has reason to believe there exists a violation of any health law or rule of this state that the director has the duty to administer.

7. Prepare sanitary and public health rules.

8. Perform other duties prescribed by law.

B. If the director has reasonable cause to believe that there exists a violation of any health law or rule of this state, the director may inspect any person or property in transportation through this state, and any car, boat, train, trailer, airplane or other vehicle in which that person or property is transported, and may enforce detention or disinfection as reasonably necessary for the public health if there exists a violation of any health law or rule.

C. The director, after consultation with the department of administration, may take all necessary steps to enhance the highest and best use of the state hospital property, including contracting with third parties to provide services, entering into short-term lease agreements with third parties to occupy or renovate existing buildings and entering into long-term lease agreements to develop the land and buildings. The director shall deposit any monies collected from contracts and lease agreements entered into pursuant to this subsection in the Arizona state hospital charitable trust fund established by section 36-218. At least thirty days before issuing a request for proposals pursuant to this subsection, the department of health services shall hold a public hearing to receive community and provider input regarding the highest and best use of the state hospital property related to the request for proposals. The department shall report to the joint committee on capital review on the terms, conditions and purpose of any lease or sublease agreement entered into pursuant to this subsection relating to state hospital lands or buildings or the disposition of real property pursuant to this subsection, including state hospital lands or buildings, and the fiscal impact on the department and any revenues generated by the agreement. Any lease or sublease agreement entered into pursuant to this subsection relating to state hospital lands or buildings or the disposition of real property pursuant to this subsection, including state hospital lands or buildings, must be reviewed by the joint committee on capital review.

D. The director may deputize, in writing, any qualified officer or employee in the department to do or perform on the director's behalf any act the director is by law empowered to do or charged with the responsibility of doing.

E. The director may delegate to a local health department, county environmental department or public health services district any functions, powers or duties that the director believes can be competently, efficiently and properly performed by the local health department, county environmental department or public health services district if:

1. The director or superintendent of the local health department, environmental department or public health services district is willing to accept the delegation and agrees to perform or exercise the functions, powers and duties conferred in accordance with the standards of performance established by the director of the department of health services.

2. Monies appropriated or otherwise made available to the department for distribution to or division among counties or public health services districts for local health work may be allocated or reallocated in a manner designed to ensure the accomplishment of recognized local public health activities and delegated functions, powers and duties in accordance with applicable standards of performance. If in the director's opinion there is cause, the director may terminate all or a part of any delegation and may reallocate all or a part of any monies that may have been conditioned on the further performance of the functions, powers or duties conferred.

F. The compensation of all personnel shall be as determined pursuant to section 38-611.

G. The director may make and amend rules necessary for the proper administration and enforcement of the laws relating to the public health.

H. Notwithstanding subsection I, paragraph 1 of this section, the director may define and prescribe emergency measures for detecting, reporting, preventing and controlling communicable or infectious diseases or conditions if the director has reasonable cause to believe that a serious threat to public health and welfare exists. Emergency measures are effective for not longer than eighteen months.

I. The director, by rule, shall:

1. Define and prescribe reasonably necessary measures for detecting, reporting, preventing and controlling communicable and preventable diseases. The rules shall declare certain diseases that are reportable. The rules shall prescribe measures, including isolation or quarantine, that are reasonably required to prevent the occurrence of, or to seek early detection and alleviation of, disability, insofar as possible, from communicable or preventable diseases. The rules shall include reasonably necessary measures to control animal diseases that are transmittable to humans.

2. Define and prescribe reasonably necessary measures, in addition to those prescribed by law, regarding the preparation, embalming, cremation, interment, disinterment and transportation of dead human bodies and the conduct of funerals, relating to and restricted to communicable diseases and regarding the removal, transportation, cremation, interment or disinterment of any dead human body.

3. Define and prescribe reasonably necessary procedures that are not inconsistent with law in regard to the use and accessibility of vital records, delayed birth registration and the completion, change and amendment of vital records.

4. Except as relating to the beneficial use of wildlife meat by public institutions and charitable organizations pursuant to title 17, prescribe reasonably necessary measures to ensure that all food or drink, including meat and meat products and milk and milk products sold at the retail level, provided for human consumption is free from unwholesome, poisonous or other foreign substances and filth, insects or disease-causing organisms. The rules shall prescribe reasonably necessary measures governing the production, processing, labeling, storing, handling, serving and transportation of these products. The rules shall prescribe minimum standards for the sanitary facilities and conditions that shall be maintained in any warehouse, restaurant or other premises, except a meatpacking plant, slaughterhouse, wholesale meat processing plant, dairy product manufacturing plant or trade product manufacturing plant. The rules shall prescribe minimum standards for any truck or other vehicle in which food or drink is produced, processed, stored, handled, served or transported. The rules shall provide for the inspection and licensing of premises and vehicles so used, and for abatement as public nuisances of any premises or vehicles that do not comply with the rules and minimum standards. The rules shall provide an exemption relating to food or drink that is:

(a) Served at a noncommercial social event such as a potluck.

(b) Prepared at a cooking school that is conducted in an owner-occupied home.

(c) Not potentially hazardous and prepared in a kitchen of a private home for sale or distribution for noncommercial purposes.

(d) Prepared or served at an employee-conducted function that lasts less than four hours and is not regularly scheduled, such as an employee recognition, an employee fundraising or an employee social event.

(e) Offered at a child care facility and limited to commercially prepackaged food that is not potentially hazardous and whole fruits and vegetables that are washed and cut on-site for immediate consumption.

(f) Offered at locations that sell only commercially prepackaged food or drink that is not potentially hazardous.

(g) A cottage food product that is prepared in a kitchen of a private home for commercial purposes consistent with chapter 8, article 2 of this title.

(h) A whole fruit or vegetable grown in a public school garden that is washed and cut on-site for immediate consumption.

(i) Produce in a packing or holding facility that is subject to the United States food and drug administration produce safety rule (21 Code of Federal Regulations part 112) as administered by the Arizona department of agriculture pursuant to title 3, chapter 3, article 4.1. For the purposes of this subdivision, "holding", "packing" and "produce" have the same meanings prescribed in section 3-525.

(j) Spirituous liquor produced on the premises licensed by the department of liquor licenses and control. This exemption includes both of the following:

(i) The area in which production and manufacturing of spirituous liquor occurs, as defined in an active basic permit on file with the United States alcohol and tobacco tax and trade bureau.

(ii) The area licensed by the department of liquor licenses and control as a microbrewery, farm winery or craft distiller that is open to the public and serves spirituous liquor and commercially prepackaged food, crackers or pretzels for consumption on the premises. A producer of spirituous liquor may not provide, allow or expose for common use any cup, glass or other receptacle used for drinking purposes. For the purposes of this item, "common use" means the use of a drinking receptacle for drinking purposes by or for more than one person without the receptacle being thoroughly cleansed and sanitized between consecutive uses by methods prescribed by or acceptable to the department.

(k) Spirituous liquor produced by a producer that is licensed by the department of liquor licenses and control or spirituous liquor imported and sold by wholesalers that is licensed by the department of liquor licenses and control. This exemption includes all commercially prepackaged spirituous liquor and all spirituous liquor poured at a licensed special event, festival or fair in this state.

5. Prescribe reasonably necessary measures to ensure that all meat and meat products for human consumption handled at the retail level are delivered in a manner and from sources approved by the Arizona department of agriculture and are free from unwholesome, poisonous or other foreign substances and filth, insects or disease-causing organisms. The rules shall prescribe standards for sanitary facilities to be used in identifying, storing, handling and selling all meat and meat products sold at the retail level.

6. Prescribe reasonably necessary measures regarding production, processing, labeling, handling, serving and transportation of bottled water to ensure that all bottled drinking water distributed for human consumption is free from unwholesome, poisonous, deleterious or other foreign substances and filth or disease-causing organisms. The rules shall prescribe minimum standards for the sanitary facilities and conditions that shall be maintained at any source of water, bottling plant and truck or vehicle in which bottled water is produced, processed, stored or transported and shall provide for inspection and certification of bottled drinking water sources, plants, processes and transportation and for abatement as a public nuisance of any water supply, label, premises, equipment, process or vehicle that does not comply with the minimum standards. The rules shall prescribe minimum standards for bacteriological, physical and chemical quality for bottled water and for submitting samples at intervals prescribed in the standards.

7. Define and prescribe reasonably necessary measures governing ice production, handling, storing and distribution to ensure that all ice sold or distributed for human consumption or for preserving or storing food for human consumption is free from unwholesome, poisonous, deleterious or other foreign substances and filth or disease-causing organisms. The rules shall prescribe minimum standards for the sanitary facilities and conditions and the quality of ice that shall be maintained at any ice plant, storage and truck or vehicle in which ice is produced, stored, handled or transported and shall provide for inspection and licensing of the premises and vehicles, and for abatement as public nuisances of ice, premises, equipment, processes or vehicles that do not comply with the minimum standards.

8. Define and prescribe reasonably necessary measures concerning sewage and excreta disposal, garbage and trash collection, storage and disposal, and water supply for recreational and summer camps, campgrounds, motels, tourist courts, trailer coach parks and hotels. The rules shall prescribe minimum standards for preparing food in community kitchens, adequacy of excreta disposal, garbage and trash collection, storage and disposal and water supply for recreational and summer camps, campgrounds, motels, tourist courts, trailer coach parks and hotels and shall provide for inspection of these premises and for abatement as public nuisances of any premises or facilities that do not comply with the rules. Primitive camp and picnic grounds offered by this state or a political subdivision of this state are exempt from rules adopted pursuant to this paragraph but are subject to approval by a county health department under sanitary regulations adopted pursuant to section 36-183.02. Rules adopted pursuant to this paragraph do not apply to two or fewer recreational vehicles as defined in section 33-2102 that are not park models or park trailers, that are parked on owner-occupied residential property for less than sixty days and for which no rent or other compensation is paid. For the purposes of this paragraph, "primitive camp and picnic grounds" means camp and picnic grounds that are remote in nature and without accessibility to public infrastructure such as water, electricity and sewer.

9. Define and prescribe reasonably necessary measures concerning the sewage and excreta disposal, garbage and trash collection, storage and disposal, water supply and food preparation of all public schools. The rules shall prescribe minimum standards for sanitary conditions that shall be maintained in any public school and shall provide for inspection of these premises and facilities and for abatement as public nuisances of any premises that do not comply with the minimum standards.

10. Prescribe reasonably necessary measures to prevent pollution of water used in public or semipublic swimming pools and bathing places and to prevent deleterious health conditions at these places. The rules shall prescribe minimum standards for sanitary conditions that shall be maintained at any public or semipublic swimming pool or bathing place and shall provide for inspection of these premises and for abatement as public nuisances of any premises and facilities that do not comply with the minimum standards. The rules shall be developed in cooperation with the director of the department of environmental quality and shall be consistent with the rules adopted by the director of the department of environmental quality pursuant to section 49-104, subsection B, paragraph 12.

11. Prescribe reasonably necessary measures to keep confidential information relating to diagnostic findings and treatment of patients, as well as information relating to contacts, suspects and associates of communicable disease patients. Confidential information may not be made available for political or commercial purposes.

12. Prescribe reasonably necessary measures regarding human immunodeficiency virus testing as a means to control the transmission of that virus, including the designation of anonymous test sites as dictated by current epidemiologic and scientific evidence.

13. Establish an online registry of food preparers that are authorized to prepare cottage food products for commercial purposes pursuant to paragraph 4 of this subsection and chapter 8, article 2 of this title. A registered food preparer shall renew the registration every three years and shall provide to the department updated registration information within thirty days after any change.

14. Prescribe an exclusion for fetal demise cases from the standardized survey known as "the hospital consumer assessment of healthcare providers and systems".

J. The rules adopted under the authority conferred by this section shall be observed throughout this state and shall be enforced by each local board of health or public health services district, but this section does not limit the right of any local board of health or county board of supervisors to adopt ordinances and rules as authorized by law within its jurisdiction if the ordinances and rules do not conflict with state law and are equal to or more restrictive than the rules of the director.

K. The powers and duties prescribed by this section do not apply in instances in which regulatory powers and duties relating to public health are vested by the legislature in any other state board, commission, agency or instrumentality, except that with regard to the regulation of meat and meat products, the department of health services and the Arizona department of agriculture within the area delegated to each shall adopt rules that are not in conflict.

L. The director, in establishing fees authorized by this section, shall comply with title 41, chapter 6. The department shall not set a fee at more than the department's cost of providing the service for which the fee is charged. State agencies are exempt from all fees imposed pursuant to this section.

M. After consultation with the state superintendent of public instruction, the director shall prescribe the criteria the department shall use in deciding whether or not to notify a local school district that a pupil in the district has tested positive for the human immunodeficiency virus antibody. The director shall prescribe the procedure by which the department shall notify a school district if, pursuant to these criteria, the department determines that notification is warranted in a particular situation. This procedure shall include a requirement that before notification the department shall determine to its satisfaction that the district has an appropriate policy relating to nondiscrimination of the infected pupil and confidentiality of test results and that proper educational counseling has been or will be provided to staff and pupils.

N. Until the department adopts exemptions by rule as required by subsection I, paragraph 4, subdivision (f) of this section, food and drink are exempt from the rules prescribed in subsection I of this section if offered at locations that sell only commercially prepackaged food or drink that is not potentially hazardous, without a limitation on its display area.

O. Until the department adopts exemptions by rule as required by subsection I, paragraph 4, subdivision (h) of this section, a whole fruit or vegetable grown in a public school garden that is washed and cut on-site for immediate consumption is exempt from the rules prescribed in subsection I of this section.

P. Until the department adopts an exclusion by rule as required by subsection I, paragraph 14 of this section, the standardized survey known as "the hospital consumer assessment of healthcare providers and systems" may not include patients who experience a fetal demise.

Q. Until the department adopts exemptions by rule as required by subsection I, paragraph 4, subdivision (j) of this section, spirituous liquor and commercially prepackaged food, crackers or pretzels that meet the requirements of subsection I, paragraph 4, subdivision (j) of this section are exempt from the rules prescribed in subsection I of this section.

R. For the purposes of this section:

1. "Cottage food product" has the same meaning prescribed in section 36-931.

2. "Fetal demise" means a fetal death that occurs or is confirmed in a licensed hospital. Fetal demise does not include an abortion as defined in section 36-2151.

§ 36-136.01 Sanitarians council; members; registration; examinations; continuing education; renewal; fees; definition

A. The director shall establish a sanitarians council composed of five members. The members shall be the director or the director's representative, two governmental sanitarians, one of whom represents the two largest counties and one of whom represents the thirteen smaller counties, one industrial sanitarian and one layperson who represents the public. The director shall be the council chairman. Members of the council are not eligible to receive compensation but are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

B. The council shall provide for the classification of sanitarians, establish standards for persons employed as sanitarians and provide for the examination of applicants for registration as sanitarians. A person shall not be employed as a sanitarian by this state or any political subdivision of this state unless that person is registered by the department as a sanitarian of the class determined by the council to be appropriate for the performance of the functions of that person's employment.

C. The council may register an applicant as a sanitarian without an examination if both of the following are true:

1. The applicant is registered, certified or licensed as a sanitarian in another jurisdiction and pays all applicable fees prescribed pursuant to this section.

2. The council determines that the applicant meets at least one of the requirements prescribed pursuant to subsection I of this section and the examination requirements in the applicant's regulatory jurisdiction are substantially equivalent to this state's examination requirements.

D. Each registration expires on December 31 of each year. To renew a registration, the registrant must submit an application that contains the information prescribed by the director by rule and documentation of completion of at least ten hours of council-approved continuing education during the previous twelve months. A registrant who has been registered for less than twelve months before the registration expiration date is not required to complete continuing education for the year that immediately precedes registration renewal. A registrant who does not renew the registration on or before February 15 of each year shall not perform the duties of a registered sanitarian.

E. Pursuant to rules adopted by the director, the council may defer the continuing education requirements prescribed in subsection D of this section.

F. The council shall charge and collect a nonrefundable application fee of $25. The council shall charge and collect a nonrefundable examination fee established by the director by rule that does not exceed the cost of administering the examination. A fee of $10 shall be charged and collected for the annual renewal of registration certificates.

G. All monies collected by the sanitarians council shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

H. Only a person with a valid registration certificate issued pursuant to this section may use the title "registered sanitarian" or the abbreviation "R.S." after the registrant's name.

I. An applicant is eligible for registration as a sanitarian if the applicant meets at least one of the following qualifications:

1. Has completed three years of employment as a sanitarian aide in either a recognized public health agency or private industry in a position directly related to environmental health.

2. Has satisfactorily completed at least three years of full-time military duty in the field of environmental health.

3. Has successfully completed thirty semester hours of credit at an accredited college or university in subjects relevant to the role of sanitarian, including twenty-two semester hours in the natural sciences, as approved by the sanitarians council.

J. For the purposes of this section, "sanitarian" means a person who by education or experience in the physical, biological and sanitary sciences is qualified to carry out educational, investigational and technical duties in the field of environmental health.

§ 36-137 Annual report of director

The director shall submit annually to the governor, the president of the senate and the speaker of the house of representatives a copy of the annual report setting forth:

1. The condition of public health in the state.

2. The activities of the department during the preceding fiscal year.

3. The work done in each county.

4. The character and extent of all diseases reported.

5. The expenditures of the department and of each county or district health department.

6. Recommendations the director deems advisable for protection of the public health.

7. The financial statement of the affairs of the Arizona state hospital.

8. The operations and administration of the program of service for children with a physical disability or who are suffering from conditions that lead to a physical disability.

§ 36-138 Oral health fund; nonlapsing

A. The oral health fund is established consisting of monies received by the department as reimbursement from Arizona health care cost containment system contractors for dental services provided by the department pursuant to section 36-132, subsection A, paragraph 10. The department shall administer the fund and shall expend monies from the fund for dental health services. On notice from the department, the state treasurer shall invest and divest monies in the fund as provided by section 35-313 and monies earned from investment shall be credited to the fund.

B. Fund monies:

1. Do not revert to the state general fund.

2. Are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

3. Are continuously appropriated.

§ 36-139 Fees

A. The department of health services may charge fees for:

1. Rental of films and film strips.

2. Laboratory tests.

B. The amount of the fees charged for such services shall not exceed the cost to the department of rendering them, and all fees shall be deposited, pursuant to sections 35-146 and 35-147, at least once each month in the state general fund. No rental or laboratory fee shall be charged to or collected from a county, city, town, school, school district or any political subdivision thereof.

§ 36-140 Violation; classification

A person who violates a provision of this article, or a regulation adopted pursuant to this article, is guilty of a class 3 misdemeanor for each violation. In the instance of continuing violation, each day constitutes a separate offense.

§ 36-141 Authority to contract and pay for alcohol and drug abuse services; services to pregnant women; priority

A. The director of the Arizona health care cost containment system administration is authorized to contract for the development and maintenance of alcohol and drug abuse services from monies available for such purpose with public or private agencies or organizations engaged in providing such preventive, rehabilitative and research services including educational, counseling and research activities directed toward preventing persons from becoming addicted to the excessive use of alcohol or other drugs and consultative services to relatives or other persons concerned with the care of persons addicted to the excessive use of alcohol or other drugs, in addition to detecting, counseling, referring, caring for and training those afflicted.

B. In allocating any new and existing undedicated monies available to the Arizona health care cost containment system for alcohol and substance abuse, the director of the Arizona health care cost containment system administration shall give priority to treatment services for pregnant abusers of alcohol and other drugs.

§ 36-142 Diabetes action plan team; report

A. The diabetes action plan team is established in the department of health services. The team is composed of the head of the following entities or that person's designee:

1. The Arizona diabetes program within the department of health services.

2. The Arizona health care cost containment system.

3. The public safety personnel retirement system.

4. The Arizona state retirement system.

5. The department of administration benefits services division.

6. Diabetes stakeholder organizations, including health insurers, a nationally recognized diabetes association and the Arizona diabetes coalition.

B. The team shall compile a report once every two years that includes the following information:

1. The prevalence in this state of:

(a) Diabetes by type.

(b) Diabetes by age, race and gender.

(c) Complications associated with diabetes.

(d) Prediabetes.

2. The costs of diabetes in this state.

3. The Arizona diabetes program's plan for reducing the incidence of diabetes in this state, improving diabetes care and reducing diabetes-related health disparities, including proposed action steps.

4. A description of the level of coordination that exists between the department of health services and hospitals, the department's contracted partners and other stakeholders on activities and programmatic activities and the level of communication on managing, treating or preventing all forms of diabetes and its complications.

C. The requirements of subsection B, paragraphs 1 and 2 of this section are limited to the diabetes information, data, initiatives and programs within each agency before August 3, 2018, unless there is unobligated funding for diabetes in an agency that may be used for new research, data collection and reporting for the purposes of subsection B, paragraphs 1 and 2 of this section.

D. On or before January 1, 2019 and once every two years thereafter, the department shall provide the report required by subsection B of this section, including its recommendations for action, to the governor, the president of the senate and the speaker of the house of representatives and shall submit a copy to the secretary of state.

§ 36-142.01 Arizona rare disease advisory council; purpose; membership; duties; annual report

A. The Arizona rare disease advisory council is established in the department. The council shall provide guidance and recommendations to educate the public, the legislature and other government agencies and departments, as appropriate, on the needs of individuals who have rare diseases and who are living in this state.

B. The council's appointment process shall be conducted in a transparent manner to provide interested individuals an opportunity to apply for membership on the council. All members of the council shall be full-time residents of this state, if practicable. Membership shall include a diverse set of stakeholders who represent the geographic and population diversity of this state. The council consists of the following members:

1. One person who represents an academic research institution in this state that receives grant funding for rare disease research and who is appointed by the speaker of the house of representatives.

2. One person who represents the department and who is appointed by the governor.

3. One person who represents the Arizona health care cost containment system and who is appointed by the governor.

4. One representative from the department of insurance and financial institutions who is appointed by the governor.

5. One registered nurse or advanced practice registered nurse who is licensed and practicing in this state, who has experience treating rare diseases and who is appointed by the governor.

6. Two physicians who are practicing in this state and who have experience treating patients with rare diseases, one of whom has experience working with pediatric populations and who is appointed by the governor and one of whom is appointed by the president of the senate.

7. One geneticist or genetic counselor who is appointed by the governor.

8. One hospital administrator, or the hospital administrator's designee, from a hospital in this state that provides care to persons diagnosed with rare diseases who is appointed by the president of the senate.

9. At least one patient who has a rare disease and who is appointed by the governor.

10. At least one caregiver of a person with a rare disease who is appointed by the governor.

11. One person who represents a rare disease patient organization that operates in this state and who is appointed by the speaker of the house of representatives.

12. A pharmacist with experience dispensing drugs used to treat rare diseases who is appointed by the governor.

13. One representative of the biopharma industry who is appointed by the president of the senate.

14. One representative of a health insurer who is appointed by the president of the senate.

15. One member of the scientific community who is a medical researcher with experience conducting research on rare diseases and who is appointed by the speaker of the house of representatives.

16. One mental health provider with experience treating patients with rare diseases in this state who is appointed by the speaker of the house of representatives.

C. The initial meeting of the council shall occur within ninety days after September 26, 2025. During the first year, the council shall meet at least once per month. The council may meet in person or via an online meeting platform. The council shall provide opportunities for the public to hear updates on the council's work and to provide input. The council shall develop and maintain a public website on which meeting minutes and meeting notices may be posted and public comments may be submitted.

D. Council members shall serve three-year terms. Council members are not eligible to receive compensation but are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

E. The council may conduct the following activities to benefit those impacted by rare diseases in this state:

1. Convene public hearings, make inquiries and solicit comments from the public in this state to assist the council with a first-year landscape or survey of the unmet needs of rare disease patients, caregivers and providers in this state.

2. Provide testimony and comments on pending legislation and rules that impact this state's rare disease community.

3. Consult with experts on rare diseases to develop policy recommendations that improve patient access to, and quality of, rare disease specialists, affordable and comprehensive health care coverage, relevant diagnostics, timely treatment and other needed services.

4. Research and make recommendations to state agencies and health insurers that provide services to persons with rare diseases regarding the impact of orphan drug pricing, prior authorization, cost sharing or other barriers to providing treatment and care for patients.

5. Evaluate and make recommendations to improve the Arizona health care cost containment system and state-regulated private health insurance coverage of drugs for rare disease patients, including engaging with the pharmacy and therapeutics committee, to improve coverage of diagnostics and facilitate access to necessary health care providers with expertise in treating rare diseases.

6. Identify and distribute educational resources for health care providers to foster recognition and optimize treatment of rare diseases in this state.

F. On or before December 1 of each year, the council shall submit a report to the governor and the chairpersons and ranking members of the health and human services committees of the senate and the house of representatives, or their successor committees. Before submission, a draft of the annual report shall be made available for public comment and discussed at an open public meeting. The annual report shall:

1. Describe the activities and progress of the council pursuant to this section.

2. Provide recommendations to the governor and the legislature on ways to address the needs of people living with rare diseases in this state.

G. The council may solicit gifts, grants and donations for operations, activities and initiatives of the council.

§ 36-143 Care and treatment for residents twenty-one and older with cystic fibrosis; costs

A. The department of health services may develop and conduct a program of care and treatment services through appropriate treatment facilities for residents of this state suffering from cystic fibrosis who are twenty-one years of age and older. Costs of the program shall be borne by the state, subject to appropriation, except as provided by subsection B.

B. Care and treatment services shall be provided without cost to indigents as defined by the rules and regulations of the department of economic security. The cost of care and treatment services for indigents shall be borne by the county in the same manner as costs for medical care for the indigent sick of the county pursuant to title 11, chapter 2, article 7. All other persons shall pay, either directly or through some form of third-party coverage, for at least a portion of the costs of provided services based on a cost-sharing system established by the director of the department of health services. The cost-sharing system shall take into consideration the income and family size of the recipient and be adjusted annually to reflect fluctuations in the cost of living index.

§ 36-144 Home care services; disclosure; definition

A. A business entity that provides home care services in this state shall annually disclose to each of its home care service clients at least all of the following information:

1. Whether criminal background checks have been performed on the employees or contractors who provide home care services and the entity's policy on sending employees or contractors who have a criminal history to a client's home.

2. The name and position of the person who is responsible for the day-to-day management of the employees and contractors, for the hiring and firing of employees and for the termination of contracts.

3. A description of any required training for employees or contractors who provide home care services and whether the training includes first aid and cardiopulmonary resuscitation.

4. A description of the home care services the entity provides and the cost of each service.

5. A description of the entity's home care services agreements and how an agreement may be terminated.

B. Subsection A of this section does not apply to:

1. A volunteer organization, person or family member who employs, recommends, refers or provides home care services for one or more persons and who does not receive compensation or monetary benefit for the volunteer organization's, person's or family member's services beyond a nominal benefit or value.

2. An organization or individual licensed pursuant to title 32 or 36 to provide home care services or related services.

3. An organization or individual who is contracted through this state to provide home care services or who is contracted with an organization to provide home care services on behalf of this state or the federal government.

C. For the purposes of this section, "home care services" means home care and support services including activities of daily living and instrumental activities of daily living.

§ 36-146 Veteran suicides; annual report; distribution

A. The department of health services shall annually compile a report on veteran suicides in this state that includes all of the following information:

1. The number and rate of veterans who died by suicide in this state's resident population for the most current complete calendar year.

2. Historic trends of veteran suicide rates and instances in this state's resident population covering at least the preceding five years.

3. Historic trends of rates and instances of the most common mechanism of suicide among this state's resident veterans.

4. An analysis of the years of potential life lost to suicide among this state's resident veterans.

5. Comparisons of this state's resident veteran suicide rate to the suicide rates of the nation and other regions of the country during the same time period as reported by the United States department of veterans affairs.

6. An analysis of the relative risk of suicide among this state's resident veterans, including demographic breakdowns by race or ethnicity, age group, gender and region of the state.

7. A regional distribution analysis of suicide patterns among this state's resident veterans that considers population density as a potential risk factor and informs the distribution of suicide prevention services within this state.

8. An analysis of patterns of drugs, or combinations of drugs, that were used by this state's resident veterans when drug poisoning was the mechanism of suicide.

9. An analysis of patterns of recent medical history of this state's resident veterans who died by suicide using data from the United States department of veterans affairs and from the Arizona health care cost containment system. Data linkage completed for this analysis shall be used to inform suicide prevention strategies based on medical risk factors that significantly correlate to suicide.

10. Utilization and encounter data for a nonprofit veterans' services organization that provides services related to reducing suicides among this state's military and veteran populations.

B. The report required by this section may not contain any identifiers that would make it possible to personally identify in any manner or under any circumstance an individual who died by suicide.

C. The department of veterans' services shall submit to the department of health services on a form prescribed by the department of health services all data, including protected health information, if necessary, in order for the department of health services to comply with this section. The data may include national, state and local sources as available.

D. The information and records acquired by the department of health services to create the report required by this section are confidential and are not subject to subpoena, discovery or introduction into evidence in any civil or criminal proceedings.

E. The department of health services shall provide the annual report required by this section to the speaker of the house of representatives, the president of the senate and the department of veterans' services and shall provide a copy to the secretary of state.

§ 36-147 Annual expenditure report; medical marijuana fund; justice reinvestment fund

On or before July 1 of each year, the department shall submit to the joint legislative budget committee an expenditure report for the preceding fiscal year on monies transferred to the department from the medical marijuana fund pursuant to section 36-2817 and monies transferred to the department from the justice reinvestment fund pursuant to section 36-2863. The report shall include expenditures by program and a list of grants distributed by the department. The department shall indicate when all monies from transfers made pursuant to section 36-2817 have been spent.

§ 36-148 Annual distribution report; smart and safe Arizona fund

On or before September 1 of each year, the state treasurer shall report to the joint legislative budget committee and the governor's office of strategic planning and budgeting on distributions made from the smart and safe Arizona fund established by section 36-2856 to the department of health services, the department of revenue, the supreme court, the department of public safety and the state treasurer pursuant to section 36-2856, subsection B. The report shall include the amount of actual distributions made to each entity in the prior fiscal year and the amount of estimated distributions for the current fiscal year.

§ 36-149 Searchable online database; health profession regulatory boards; license and certification revocations; definitions

A. Each health profession regulatory board shall report to the department:

1. The revocation of a health professional's license or certification.

2. All license and certification revocations that have occurred beginning July 1, 2019 through July 1, 2024.

B. On or before July 1, 2024, the department shall create a searchable online database that is posted on the department's public website that contains, at a minimum, the names of the health professionals who have had a license or certification revoked in the preceding five years, the date of the revocation and the health profession regulatory board that revoked the license or certification. The department shall inform the health profession regulatory boards of the information that is required to be reported to the department for the database.

C. For the purposes of this section, "health profession regulatory board" and "health professional" have the same meanings prescribed in section 32-3201.

Article 2.1 Home Health Services by State and County

§ 36-151 Definitions

In this article, unless the context otherwise requires:

1. "County department" means a county department of health.

2. "Department" means the department of health services.

3. "Home health services" means the items and services enumerated in this paragraph and furnished to a person who is under the care of a physician and surgeon, not including the services of a physician and surgeon. Such items and services may be furnished by a home health agency or by others under arrangements made by such agency, under a plan established and periodically reviewed by such physician and surgeon. Such items and services, except as provided in subdivision (b) of this paragraph, shall be furnished on a visiting basis in a place of residence used as such person's home and shall consist of:

(a) Part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse and either physical, occupational or speech therapy, or, to the extent permitted in department regulations, part-time or intermittent services of a home health aide, and such items and services may further consist of any or all of the following:

(i) Medical social services under the direct supervision of a physician and surgeon.

(ii) Medical supplies, other than drugs and biologicals, and the use of medical appliances, while under such a plan.

(iii) In the case of a home health agency which is affiliated or under common control with a hospital, medical services provided by an intern or resident-in-training of such hospital, under a teaching program of such hospital approved as provided in paragraph 4 of this section.

(b) Any of the items and services enumerated in subdivision (a) of this paragraph, which are provided on an outpatient basis, under arrangements made by the home health agency, at a hospital or extended care facility, or at a rehabilitation center which meets such standards as may be prescribed in regulations, and under one of the following conditions:

(i) The furnishing of such items and services involves the use of equipment of such a nature that the items and services cannot readily be made available to such person in such place of residence.

(ii) Such items and services are furnished at such facility while he is there to receive any such item or service described in item (i) of this subdivision, but not including transportation of such person in connection with any such item or service. Any item or service, if it would not be included under paragraph 4 of this section if furnished to an inpatient of a hospital, shall be excluded.

4. "Inpatient hospital services" means the following items and services, furnished to an inpatient of a hospital and, except as provided in subdivision (c) of this paragraph, by the hospital:

(a) Bed and board.

(b) Such nursing services and other related services, such use of hospital facilities, and such medical social services as are ordinarily furnished by the hospital for the care and treatment of inpatients, and such drugs, biologicals, supplies, appliances, and equipment, for use in the hospital, as are ordinarily furnished by such hospital for the care and treatment of inpatients.

(c) Such other diagnostic or therapeutic items or services, furnished by the hospital or by others under arrangements with them made by the hospital, as are ordinarily furnished to inpatients either by such hospital or by others under such arrangements, excluding the following:

(i) Medical or surgical services provided by a physician and surgeon, resident or intern.

(ii) The services of a private duty nurse or other private duty attendant. Item (i) of this subdivision shall not apply to services provided in the hospital by an intern or a resident-in-training under a teaching program approved by the council on medical education of the American medical association or, in the case of an osteopathic hospital, approved by the committee on hospitals of the bureau of professional education of the American osteopathic association, or, in the case of services in a hospital or osteopathic hospital by an intern or resident-in-training in the field of dentistry, approved by the council on dental education of the American dental association.

5. "Home health agency" means an agency or organization, or a subdivision of such an agency or organization, which meets all of the following requirements:

(a) Is primarily engaged in providing skilled nursing services and other therapeutic services.

(b) Has policies, established by a group of professional personnel, associated with the agency or organization, including one or more physicians and one or more registered professional nurses, to govern the services referred to in subdivision (a), which it provides, and provides for supervision of such services by a physician or registered professional nurse.

(c) Maintains clinical records on all patients.

6. "Supportive services" or "related supportive services" means services other than home health services which may reasonably be expected to help maintain an individual in his home as an alternative to institutionalization. Such services may include, but not limited to, nutrition counseling, meals services, homemaker services, general maintenance services and transportation services.

§ 36-152 Authority to provide services; fees

The department may provide home health services to persons living in areas of the state in which adequate home nursing care is not otherwise available. For such services the department shall charge fees to be paid by persons to whom the department renders such services, or to be paid by any governmental agency purchasing such services for persons, except when such services are provided for demonstration and public health program activities.

§ 36-153 Authority to contract for services and fees

The department may enter into contracts with any governmental or private agency, or with any person, whereby the department agrees to render such home health services to or for such agency or person in exchange for a fee to cover the cost of rendering such services.

§ 36-154 Limitation of authority regarding services and fees

The authority granted by this article is limited to services voluntarily rendered and voluntarily received, and shall not apply to services required by statute, regulation, or ordinance to be rendered or received. Fees authorized by this article to be charged shall not exceed the cost to the department or county departments of rendering the services.

§ 36-155 Personnel and equipment

The department may employ the necessary personnel, including nursing and supervisory personnel, and purchase equipment and materials necessary to maintain an effective program of home health services and to render such services.

§ 36-156 Home health services and related supportive services; coordination and development; consultation; powers and duties of director

A. The director may act to coordinate the activities of the department with the activities of the department of economic security which relate, directly or indirectly, to home health services or related supportive services.

B. The director may act to coordinate the activities of existing home health agencies and other agencies or associations which supply, directly or indirectly, home health services or related supportive services.

C. Upon the request of any agency or organization, the director may provide consultation and assistance for:

1. The development and implementation of home health services programs to be carried out by such agency or association.

2. The coordination and integration of home health services provided by or planned by such agency or association with other existing or planned home health services programs or related supportive services programs.

3. The development and acquisition of funding sources for home health services.

D. In order to carry out the provisions of subsection C the director may enter into contracts or agreements with agencies or organizations specifying the type of consultation and assistance to be provided.

§ 36-157 County authority to provide services; fees

County departments shall have the same authority as granted to the department, under the provisions of this article, to provide home health services within their county, enter into contracts therefor, charge fees for such services, and expend monies, employ personnel and to purchase equipment and materials.

§ 36-158 Authority to receive funds; disbursement

The department and county departments may receive monies from any source for home health services. All such monies the department and county departments receive for such services shall be deposited in special accounts by the respective state and county treasurers. All such monies are appropriated to the department and county departments that receive them and shall be used to carry out the provisions of this article.

§ 36-159 Authorized court action to collect fees

The department and county departments may maintain legal action through the attorney general or county attorney for the collection of fees charged for home health services which have been rendered to any person or agency.

§ 36-160 Confidentiality of records; unauthorized disclosures unlawful; classification

A. Clinical records, medical reports and laboratory statements or reports, maintained as a result of services authorized by this article, and the information contained therein, shall be confidential and shall not be divulged to or open to inspection by any person other than attending physicians and surgeons, and persons authorized by them, the home health agency involved and state or local health officers. The director may, by regulation, authorize other persons or groups of persons to inspect or otherwise use such records and information.

B. A person who knowingly divulges such information or opens to inspection such clinical records, medical reports or laboratory statements or reports, without authority, to any person not by law or regulation entitled to such is guilty of a class 2 misdemeanor.

Article 3 Health Care Professionals Workforce Data Repository

§ 36-171 Health care professionals workforce data repository; maintenance; rules; fee; public access

A. The department shall establish and maintain the health care professionals workforce data repository containing the data collected and transferred to the department pursuant to title 32, chapter 32, article 5.

B. In accordance with the rules adopted pursuant to this section, the department may assist the health profession regulatory boards in complying with a standardized format and securely transferring the data collected.

C. The department shall adopt rules to:

1. Provide procedures for the transfer of data from the health profession regulatory boards.

2. Maintain the privacy and security of the data pursuant to section 32-3249.01.

3. Specify the conditions and agreements to release the data consistent with paragraph 2 of this subsection.

4. Establish a fee to provide the data in the repository to persons who request the information.

D. The data in the repository is not a public record pursuant to title 39, chapter 1, article 3, and the department may provide the data only:

1. Subject to the conditions and agreements required by the rules adopted pursuant to this section.

2. Without any personally identifiable information.

3. For a fee that is not based on the intended use of the data.

§ 36-172 Workforce data repository fund; exemption

A. The workforce data repository fund is established consisting of legislative appropriations, fees collected pursuant to this article and private gifts, grants, donations and contributions. The department shall administer the fund, and monies in the fund are continuously appropriated. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

B. The director may accept and spend private gifts, grants, donations and contributions to assist in carrying out the purposes of this article. These monies do not revert to the state general fund at the end of the fiscal year.

§ 36-173 Advisory committee; membership

A. The health care professionals workforce data repository advisory committee is established to advise the director regarding rules and policies relating to the operation of the health care professionals workforce data repository. The advisory committee consists of at least fourteen members but not more than fifteen members who are appointed by the director and includes:

1. The director or the director's designee, who serves as the chairperson.

2. One person who represents each health profession regulatory board that collects and transfers data to the health care professionals workforce data repository.

3. At least two persons who represent universities in this state.

4. At least one person who represents a community college in this state.

5. At least one person who represents a hospital in a county in this state with a population of five hundred thousand persons or more.

6. At least one person who represents a hospital in a county in this state with a population of less than five hundred thousand persons.

7. One person who is a behavioral health services provider.

8. One person who is an outpatient services provider.

9. At least one person who represents a nonprofit organization that conducts research and education related to health care.

B. The advisory committee members shall serve three-year terms. Members serve in a voluntary capacity but are eligible to receive reimbursement of expenses pursuant to title 38, chapter 4, article 2.

Article 4 Local Health Departments

§ 36-181 Definitions

In this article "a local full-time public health service" means a full-time service utilizing local, state, federal and other funds, or any combination thereof, employing qualified personnel working under the direction and supervision of a qualified director appointed by the county board of supervisors and conducted in conformity with the rules, regulations and policies of the department of health services.

§ 36-182 Establishment of local health departments or public health services district; powers; expenditures; plan for local health departments

A. For the purpose of providing local full-time public health service, the board of supervisors of a county shall establish a county department of health or a public health services district.

B. The board of supervisors shall not impose any charges on any city or town for public health services unless a valid intergovernmental agreement was in effect during the period being charged.

C. A department of health established pursuant to this article may:

1. Develop health services with the use of any combination of federal, state or local funds.

2. Expend monies budgeted for use of the department with the advice of the local board of health.

D. The department of health services shall prepare a plan for recommendation to the counties, which shall outline a practical grouping of cities and counties of sufficient population and of such area as may be sustained with reasonable economy and efficient administration in order to provide efficient and effective local health services.

§ 36-183 Boards of health of local health departments; membership; terms

A. Except as provided in subsection B, for a county department of health in a county having three supervisorial districts, the board of supervisors shall appoint a board of five members consisting of a member of the board of supervisors, a physician licensed pursuant to title 32, chapter 13 or 17 and three citizens selected for their interest in public health, each citizen member to be a resident of a different supervisorial district, so that each supervisory district in the county has a representative on the board. The member selected from the board of supervisors shall serve during that member's term of office. The term of office of the physician member and of the citizen members shall be four years.

B. In a county having three supervisorial districts, the board of supervisors may determine by majority vote to appoint a board of nine members for the county department of health. In the event a board of supervisors determines to appoint a nine member board, the board shall consist of a member of the board of supervisors, a physician licensed pursuant to title 32, chapter 13 or 17, a member of a city governing body selected by the board and six citizens selected for their interest in public health. The citizen members shall be residents of different supervisorial districts, so that each supervisorial district in the county has two representatives on the board. The members selected from the board of supervisors and the city governing body shall serve during their terms of office. The term of office of the physician member and the citizen members shall be four years. In the event four additional members are appointed pursuant to this subsection, the city governing body member shall be appointed for a term of four years, one citizen member shall be appointed for a term of one year, one citizen member shall be appointed for a term of two years and one citizen member shall be appointed for a term of three years.

C. In a county having five supervisorial districts, the board of supervisors shall appoint a board of eleven members consisting of a member of the board of supervisors, a physician licensed pursuant to title 32, chapter 13 or 17 and five citizen members selected for their interest in public health, each citizen member to be a resident of a different supervisorial district so that all five supervisorial districts in the county have representatives on the board. In addition, four citizen members shall be appointed from the county at large. The term of office of the physician member and each member appointed pursuant to this subsection shall be four years.

D. Appointment to fill a vacancy in the membership of a board caused other than by expiration of term shall be for the unexpired portion of the term.

E. The director of a county health department shall serve, without vote, as an ex officio member of the board.

F. Citizen members appointed pursuant to this section shall not be county health department employees.

§ 36-183.01 County hospital under board of health or hospital board; powers and duties

A. In any county that maintains a hospital, the board of supervisors may delegate to a county board of health the responsibility to manage and operate the hospital or if the county has a population of more than one million persons according to the most recent United States decennial census, the board of supervisors or in the case of a county with a special health care district that is subject to section 48-5541.01, the board of directors of the district, by majority vote, may appoint a hospital board to perform that function. If the board of supervisors decides to appoint a hospital board, the board shall be composed of the following members:

1. A member of the board of supervisors who is chosen by the board of supervisors. This member shall act as board chairman.

2. The director of the county hospital, who is a nonvoting member.

3. A physician licensed pursuant to title 32, chapter 13 or 17. This member shall not be a county employee.

4. A professional nurse licensed pursuant to title 32, chapter 15. This member shall not be a county employee.

5. Each current president or chairman of the hospital's medical staff, who is a nonvoting member.

6. Five public members selected by the board of supervisors for their interest in health care. The public members shall be residents of different supervisorial districts.

7. Two additional public members selected by the board of supervisors, one who has financial expertise and one who has legal expertise.

B. The member of the hospital board from the board of supervisors shall serve at the pleasure of the board of supervisors but no longer than four years. Other members of the hospital board shall serve staggered four-year terms, but no member may serve more than two full terms. A vacancy occurring on the hospital board shall be filled by the board of supervisors appointing another qualified person to serve the remainder of the term.

C. The county board of health or the appointed hospital board may:

1. With the consent of the board of supervisors and at salaries fixed by the supervisors, appoint a hospital director, physicians and employees to perform the work of the hospital.

2. Advise the director of the hospital and request from that person the information it deems necessary.

3. Prescribe standards of medical care to be furnished by the hospital and make reasonable rules for the operation and maintenance of the hospital.

4. With the consent of the board of supervisors, prescribe the charges to be made by the hospital to persons able to pay in whole or in part for services furnished by the hospital.

5. Prepare and submit to the board of supervisors an annual statement of the financial affairs of the hospital and an estimate of the amounts required to meet the expenses of the hospital for the next fiscal year. The estimate shall include an estimate of the amount of money required for each item of expenditure by the hospital.

6. Make long-range plans for the hospital and the care of the indigent sick of the county.

7. Advise the board of supervisors on all matters relating to the county hospital and medical services furnished by the county.

§ 36-183.02 Sanitary regulations; notice

A. Each county shall investigate all nuisances, sources of filth and causes of sickness and make regulations necessary for the public health and safety of the inhabitants.

B. The county shall give notice of all general orders and regulations by publishing them in a newspaper published within the jurisdiction of the county. If there is no such newspaper, the county shall post the orders and regulations in five public places within the jurisdiction of the county and this constitutes legal notice to all persons.

§ 36-183.03 Maintaining unsanitary premises; violation; classification

A person who violates a published order or regulation of a county or maintains in an unsanitary condition premises located within the county and who refuses or fails to place the premises in a sanitary condition within three days after being ordered to do so by the director of a local health department, county environmental department or public health services district, the county sanitary officer or any county peace officer acting under the direction and authority of the director or who thereafter refuses or fails to maintain the premises in a sanitary condition is guilty of a class 3 misdemeanor if the person holds a valid permit under this article or a class 2 misdemeanor if the person does not hold a valid permit under this article.

§ 36-183.04 Notice of violation; civil penalties; administrative hearings

A. If the director of a local health department, county environmental department or public health services district has reason to believe that a person has violated this article or a sanitary ordinance or regulation, the director may issue a notice of violation and demand for compliance by certified or registered mail or by hand delivery to the respondent.

B. The notice of violation and demand for compliance must state with reasonable specificity the nature of the violation and the deadline for compliance. The notice of violation shall also state that the respondent may request a hearing.

C. Unless the respondent either complies within the stated deadline or requests a hearing within fifteen days after service of the notice of violation and demand for compliance, the director of the local health department, county environmental department or public health services district may issue a compliance order consistent with the terms of the notice of violation.

D. The director of a local health department, county environmental department or public health services district may appoint a hearing officer to conduct a hearing pursuant to this section. Hearings held pursuant to this section shall be conducted in the same manner as hearings are conducted pursuant to title 41, chapter 6, article 6. The hearing officer shall either issue or deny a compliance order and shall make a finding regarding a civil penalty.

E. A compliance order issued pursuant to this section is final and enforceable in superior court unless the respondent files an appeal to the director of the local health department, county environmental department or public health services district within fifteen days after receiving the compliance order.

F. On appeal, the director may affirm, modify or vacate the hearing officer's decision. The director shall consider the factors prescribed in subsection H. The director's decision is enforceable as a judgment in superior court. The director's decision is subject to appeal pursuant to title 12, chapter 7, article 6.

G. A compliance order issued pursuant to this section may provide for a civil penalty of not more than seven hundred fifty dollars for each violation by an individual and not more than five thousand dollars for a violation by an enterprise. A compliance order shall not impose a civil penalty for the same acts for which a court has previously imposed a civil or criminal penalty.

H. In determining the amount of a civil penalty under this section, the director and the hearing officer shall consider the following:

1. The seriousness of the violation.

2. As an aggravating factor only, any economic benefit that results from the violation.

3. The history of that violation.

4. The economic impact of the penalty on the violator.

5. Any good faith efforts to comply with the applicable requirements.

6. The duration of the violation as established by any credible evidence.

7. Payment by the violator of penalties previously assessed for the same violation.

8. Other factors affecting the public health and safety the director deems relevant.

I. The director of the local health department, county environmental department or a public health services district shall deposit all penalties collected pursuant to this section in the general fund of the county where the action was initiated.

§ 36-183.05 Violations; injunctive relief; civil penalties; consent decrees

A. If the director of a local health department, county environmental department or a public health services district has reasonable cause to believe that a person is violating this article, any sanitary ordinance or regulation adopted or order issued pursuant to this article or an order issued pursuant to section 36-602, the director through the county attorney may file an action in the superior court:

1. For a temporary restraining order, a preliminary or permanent injunction or any other appropriate relief necessary to enjoin the person from further violations and to protect public health or the environment.

2. To compel compliance with a nuisance abatement order or a compliance order, including the collection of civil penalties assessed under that order.

3. For civil penalties of not to exceed one thousand dollars a day but not more than ten thousand dollars for each violation.

B. In determining the amount of a civil penalty under this section, the court shall consider all of the following:

1. The seriousness of the violation.

2. As an aggravating factor only, any economic benefit that results from the violation.

3. The history of that violation.

4. The economic impact of the penalty on the violator.

5. Any good faith efforts to comply with the applicable requirements.

6. The duration of the violation as established by any credible evidence.

7. Payment by the violator of penalties previously assessed for the same violation.

8. Other factors affecting the public health and safety the court deems relevant.

C. The director of the local health department, county environmental department or a public health services district shall deposit all penalties collected pursuant to this section in the general fund of the county where the action was filed.

D. The director of a local health department, county environmental department or a public health services district may settle any action filed pursuant to this section by submitting a consent decree that is agreed to by the parties for approval by the superior court.

§ 36-183.06 Health inspectors; violations; notice to appear

A. If a health inspector has reasonable cause to believe that a person is violating this article, a sanitary ordinance or regulation adopted or order issued pursuant to this article or an order issued pursuant to section 36-602, the inspector may serve a notice of violation that contains a specific time and place for the alleged violator to appear and that specifies the statute, ordinance, regulation or order violated. The inspector may serve the notice of violation on the person in the same manner provided in section 13-3903. The notice of violation shall specify the penalty sought pursuant to section 36-183.07.

B. If a health inspector is unable to personally serve the notice, the notice may be served in the same manner prescribed for alternative methods of service by the Arizona rules of criminal procedure, and a response is required within the time prescribed by the rule under which it is served.

C. The notice must state the time prescribed for a response.

§ 36-183.07 Violation; classification

A. A person who violates this article, a sanitary ordinance or regulation adopted or order issued pursuant to this article or an order issued pursuant to section 36-602 is guilty of a class 3 misdemeanor if the person holds a valid permit issued under this article or a class 2 misdemeanor if the person does not hold a valid permit.

B. A penalty under this section shall not be imposed for the same acts for which a civil penalty has been imposed under this article.

C. In determining the penalty under this section, the court shall consider all of the following:

1. The seriousness of the violation.

2. As an aggravating factor only, any economic benefit that results from the violation.

3. The history of that violation.

4. The economic impact of the penalty on the violator.

5. Any good faith efforts to comply with the applicable requirements.

6. The duration of the violation as established by any credible evidence.

7. Payment by the violator of penalties previously assessed for the same violation.

8. Other factors the court deems relevant.

D. Lack of criminal intent does not constitute a defense to violations alleged under this section.

§ 36-184 Boards of health of local health departments; organization; meetings; powers and duties

A. The board of health of each county health department shall meet and elect from among its members a president and vice-president, and adopt rules not inconsistent with law for its procedure. The director of the local health department shall serve as secretary of the board. The board shall hold an annual meeting in July each year at which officers shall be elected for the ensuing year. Monthly and special meetings may be held on the call of the president, the director or any two members. A majority of the members constitutes a quorum. Members who fail to attend three consecutive meetings shall be considered as resigned from the board, but the board may, for good cause, grant leaves of absence to its members.

B. The board shall:

1. Advise the director and request from the director information it deems necessary.

2. Keep minutes of all meetings of the board.

3. Make rules and regulations, not inconsistent with the rules and regulations of the department of health services, for the protection and preservation of public health.

4. Advise the board of supervisors regarding suitable offices, facilities and equipment for the health department.

5. Recommend rules and regulations to the respective county boards of supervisors for adoption and enforcement in their respective counties.

C. This article does not authorize a county health department or any of its officers or representatives to impose on any person any mode of treatment against that person's will, or any examination inconsistent with the creed or tenets of any religious denomination of which the person is an adherent, provided that the person complies with sanitary and quarantine laws, rules and regulations.

§ 36-185 Local department of health funds

A. A county board of health annually, before May 1 of each year, shall estimate the cost of maintaining the department for the ensuing fiscal year and the monies that may be available from unexpended surpluses from grants or donations. The estimates shall be submitted in the form of a budget on or before May 1 of each year to the board of supervisors. The board of supervisors shall provide monies necessary to cover the cost of maintaining the department for the ensuing fiscal year.

B. Local health department monies made available under this article are nonreverting and nonlapsing monies.

C. The board of supervisors shall not require a city or town to contribute to the county's public health budget if the board of supervisors did not require the city or town to contribute monies to the county for a portion of the county's public health budget before January 1, 1999.

§ 36-186 Director of county health department; powers and duties

The director of a county health department shall:

1. Be the executive officer of the department.

2. Be the secretary of the board of health.

3. Keep a record of the proceedings of the board of health and of the director's official acts and submit a monthly written report to the department on these proceedings and acts.

4. Report to the department of health services when the health of persons is in danger or when any contagious or infectious disease occurs.

5. Enforce and observe the rules of the director of the department of health services, the director of the department of environmental quality and the local board of health, county rules and regulations concerning health, and laws of the state pertaining to the preservation of public health and protection of the environment.

6. Appoint necessary personnel in accordance with regulations of the county board of supervisors.

7. Submit an annual report to the local board of health, the county board of supervisors, each city in the county and the director of the department of health services. The report shall set forth:

(a) The condition of public health in the county.

(b) Activities of the department during the preceding year.

(c) The character and extent of all diseases reported.

(d) Expenditures of the department.

(e) Such recommendations as the director of the county health department deems advisable for protection of the public health.

8. Enforce any law or ordinance enacted or adopted by the respective jurisdiction relating to public health, including laws and ordinances that relate to public businesses, rental properties and vacant properties.

§ 36-187 County treasurer as treasurer of local departments of health; duties; collection of fees

A. In the case of a county health department, the county treasurer, as a part of the official duties as county treasurer, shall serve as treasurer of the department, and the official bond as county treasurer shall extend to and cover his duties as treasurer of the department.

B. The treasurer of the county shall, upon organization of the department, establish a health department fund to which shall be credited any monies appropriated from a general county or city fund or funds, any revenue received by the department and any monies received from state, federal or other grants or donations for local health purposes. Any monies credited to such funds shall be expended only for the purposes of the local health department and claims or demands against the funds shall be allowed only if certified by the director of the department or the president of the local board of health or any other member of the board designated by the president for such purpose.

C. A county board of health established pursuant to this article may adopt a schedule of reasonable fees to be collected by the department for issuing or renewing licenses or permits or for other services as are authorized by law and the rules of the director of the department of health services or the director of environmental quality, provided that:

1. Fees for services shall not be assessed or collected for services rendered to individuals except when those services are for the convenience of the individual and not a part of the preventive or curative medical care of persons for whom the county has a legal responsibility.

2. Fees for services shall not exceed the reasonable cost of providing the services required, including administrative costs.

3. Any such fee or schedule shall be approved by the county board of supervisors.

§ 36-188 Abolishment of other health agencies by establishment of county health department or public health services district

Upon establishment of a county health department in conformity with this article or a public health services district under section 48-5802, a county health department or public health services district succeeds to the authority of any existing city or local board of health in that county and any references to a city or local board of health apply instead to that county health department or public health services district.

§ 36-189 State participation in establishment and maintenance of local health departments and local health services

A. The department of health services may use monies at its disposal and not otherwise appropriated to match monies provided by cities and counties to establish and maintain local health department services for any city or county, on such reasonable terms as it establishes by rule. From the appropriation made for purposes of this section, the department of health services shall reimburse local health departments, which meet minimum standards of personnel and performance established by the director of the department of health services and, on submission and approval of a plan and budget by such local health departments, fifty percent of the portion of the total approved budget not in excess of one dollar twenty-five cents per capita or a prorated portion thereof if sufficient monies are not available to meet the approved requests. If annual expenditures of the local health department are less than the amount budgeted, the total state reimbursement to such department for the year shall not exceed the appropriate percentage of the amount actually expended by such local health department. The department of health services, in addition, may provide federal monies or services for demonstrations, studies and special projects, or for emergencies.

B. The Arizona health care cost containment system may use monies at its disposal, including federal monies available to the state for this purpose, and not otherwise appropriated to contract for the establishment and maintenance of local mental health facilities and services to be provided by either private or public agencies. Monies available for this purpose shall be expended only for local mental health facilities and services. The Arizona health care cost containment system administration shall advance or reimburse monies to local agencies that have submitted and obtained approval of an annual plan and budget. The annual amount of state matching funds provided shall not exceed seventy-five percent of the total annual amount of monies and value of in-kind resources used by the agency to establish and maintain local mental health facilities and services.

§ 36-190 Participation of incorporated cities and towns in health services

The legally appointed director of any county health department shall provide equal public health services to all residents of the county including residents of incorporated cities and towns and as consistent with any grant requirements. The county may spend monies for public health services to address a specific public health need that is unique to a particular area or condition. Any city or town may provide services to its residents beyond the county's basic level of service and may use any combination of internal municipal departments or any other provider, including an intergovernmental agreement with a county for the provision of those services.

§ 36-191 Violation; classification

A person violating any provision of this article or the rules and regulations adopted thereunder is guilty of a class 3 misdemeanor.

§ 36-192 County health departments; naloxone kits

The department and the Arizona health care cost containment system shall continue to distribute naloxone kits as necessary. In addition, a county health department may provide to a person who is at risk of experiencing or who is experiencing an opioid-related overdose a kit that contains naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration for the treatment of a drug overdose.

Article 5 Advisory Committee

§ 36-195 Establishment of advisory committee by authorized local agency

A. Each authorized local agency may establish an advisory committee to the agency and the department representing the needs and interests of the people who are inpatients or residents of nursing care institutions and residential care institutions in the area served by the agency.

B. If such a committee is established, the local agency shall appoint the members of the committee.

C. The committee shall be composed of at least six members. At least one-half of the members shall be consumers of health services who are not providers of health services. No more than one-sixth of the members shall be providers of nursing care services or residential care services.

D. Committee members shall serve in a voluntary capacity, except that the authorized local agency may reimburse committee members for subsistence and travel expenses while performing committee functions as determined by the authorized local agency.

§ 36-196 Duties and responsibilities

A. Each advisory committee established pursuant to this article may:

1. Promote communication among the patients and residents of nursing care institutions and residential care institutions, the providers of such services, the authorized local agency and the department.

2. Collect and maintain data on nursing care institutions and residential care institutions, including, but not limited to, data on residents, cost of services, scope of services and grievances.

3. Receive grievances from inpatients, residents or employees of nursing care institutions and residential care institutions or any other person, investigate such grievances when necessary and make reports on such grievances to the authorized local agency and to the department when necessary.

4. Make recommendations to the agency or the department regarding rules, regulations, policy or procedures related to nursing care institutions or residential care institutions.

B. Each advisory committee established pursuant to this article shall file an annual report by January 31 of each year with the agency and department, summarizing all findings and activities of the advisory committee during the previous year. The advisory committee shall file additional reports as required by the authorized local agency or the department. A copy of the report shall be maintained at the office of the authorized local agency and shall be made available to the public for inspection and copying pursuant to section 39-121.01.

Article 6 Drug Overdose Fatalities

§ 36-198 Drug overdose fatality review team; members; duties; local drug overdose fatality review teams; confidentiality

(Rpld. 1/1/29)

A. The drug overdose fatality review team is established in the department of health services. The head of each of the following entities or that person's designee shall serve on the review team:

1. The attorney general.

2. The department of health services.

3. The Arizona health care cost containment system.

4. The department of economic security.

5. The governor's office of youth, faith and family.

6. The administrative office of the courts.

7. The state department of corrections.

8. The Arizona council of human services providers.

9. The department of public safety.

B. The director of the department of health services shall appoint the following members to serve on the review team:

1. A medical examiner who is a rural forensic pathologist.

2. A medical examiner who is a metropolitan forensic pathologist.

3. A representative of a tribal government.

4. A public member.

5. A representative of a professional emergency management system association.

6. A health care professional from a statewide association representing nurses.

7. A health care professional from a statewide association representing physicians.

8. A representative of an association of county health officers.

9. A representative of an association representing hospitals.

10. A health care professional who specializes in the prevention, diagnosis and treatment of substance use disorders.

11. A county sheriff, or the sheriff's designee, who represents a county with a population of less than five hundred thousand persons and a county sheriff, or the sheriff's designee, who represents a county with a population of five thousand persons or more.

C. The review team shall:

1. Develop a drug overdose fatalities data collection system.

2. Conduct an annual analysis on the incidence and causes of drug overdose fatalities in this state during the preceding fiscal year.

3. Encourage and assist in the development of local drug overdose fatality review teams.

4. Develop minimum standards and protocols for local drug overdose fatality review teams and provide training and technical assistance to these teams.

5. Develop protocols for drug overdose investigations, including protocols for law enforcement agencies, prosecutors, medical examiners, health care facilities and social service agencies.

6. Study the adequacy of statutes, ordinances, rules, training and services to determine what changes are needed to decrease the incidence of preventable drug overdose fatalities and, as appropriate, take steps to implement these changes.

7. Educate the public regarding the incidence and causes of drug overdose fatalities as well as the public's role in preventing these deaths.

8. Designate a member of the review team to serve as chairperson or team coordinator.

D. Team members are not eligible to receive compensation, but members appointed pursuant to subsection B of this section are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

E. The department of health services shall provide professional and administrative support to the review team.

F. Law enforcement agencies shall provide unredacted department reports to the chairperson or team coordinator of a local drug overdose fatality review team on request. All information and records acquired by a local drug overdose fatality review team are confidential and are not subject to subpoena, discovery or introduction into evidence in a civil or criminal proceeding or disciplinary action. Information and records that are otherwise available from other sources are not immune from subpoena, discovery or introduction into evidence through those sources solely because the information or record was presented to or reviewed by a local drug overdose fatality review team.

G. A member of a local drug overdose fatality review team or any person who presents information to a local drug overdose fatality review team may not be questioned in any civil or criminal proceeding or disciplinary action regarding the information presented. This subsection does not prevent a person from testifying regarding information obtained independently of the local drug overdose fatality review team or as to public information.

§ 36-198.01 Access to information; confidentiality; violation; classification

(Rpld. 1/1/29)

A. On request of the chairperson or team coordinator of the drug overdose fatality review team who is an employee of the department of health services or a local drug overdose fatality review team who is an employee of the local county health department or an organization that manages the local overdose fatality review team for the local health department and as necessary to carry out the review team's duties, the chairperson or team coordinator shall be provided, within five days excluding weekends and holidays, with access to information and records regarding a drug overdose fatality that is being reviewed by the review team or regarding the person who overdosed on drugs. The review team may review drug overdose fatalities from January 1, 2021 to the present and may request the information and records from any of the following:

1. A provider of medical, dental or mental health care.

2. This state or a political subdivision of this state that might assist the review team in reviewing the fatality.

B. A law enforcement agency, with the approval of the prosecuting attorney, may withhold from the drug overdose fatality review team or a local team any investigative records that might interfere with a pending criminal investigation or prosecution.

C. The director of the department of health services or the director's designee may apply to the superior court for a subpoena as necessary to compel the production of books, records, documents and other evidence related to the person who overdosed on drugs. Subpoenas issued under this subsection shall be served and, on application to the court by the director or the director's designee, enforced in the manner provided by law for the service and enforcement of subpoenas. A law enforcement agency is not required to produce the information requested under the subpoena if the subpoenaed evidence relates to a pending criminal investigation or prosecution. All records shall be returned to the agency or organization on completion of the review. The drug overdose fatality review team or a local team may not keep written reports or records containing identifying information.

D. All information and records acquired by the drug overdose fatality review team or any local team are confidential and are not subject to subpoena, discovery or introduction into evidence in any civil or criminal proceeding, except that information, documents and records that are otherwise available from other sources are not immune from subpoena, discovery or introduction into evidence through those sources solely because they were presented to or reviewed by a review team pursuant to this article.

E. Members of the drug overdose fatality review team or a local team, persons attending a review team meeting and persons who present information to a review team may not be questioned in any civil or criminal proceeding regarding information presented in or opinions formed as a result of a meeting. This subsection does not prevent a person from testifying to information that is obtained independently of the review team or that is public information.

F. A member of the drug overdose fatality review team or a local team may contact, interview or obtain information by request or subpoena from a family member of a deceased person who overdosed on drugs.

G. Meetings of the drug overdose fatality review team or a local team are closed to the public and are not subject to title 38, chapter 3, article 3.1 if the review team is reviewing information on a person who overdosed on drugs. All other review team meetings are open to the public.

H. A person who violates the confidentiality requirements of this section is guilty of a class 2 misdemeanor.

Article 7 Suicide Mortality

§ 36-199 Suicide mortality review team; members; duties

A. The suicide mortality review team is established in the department of health services. The head of each of the following entities or that person's designee shall serve on the review team:

1. The department of health services.

2. The Arizona health care cost containment system.

3. The department of economic security.

4. The governor's office of youth, faith and family.

5. The department of education.

6. The Arizona council of human service providers.

7. The department of public safety.

B. The director of the department of health services shall appoint the following members to serve on the review team:

1. A medical examiner who is a rural forensic pathologist.

2. A medical examiner who is a metropolitan forensic pathologist.

3. A representative of a tribal government.

4. A representative of a health care insurer.

5. A public member.

6. A representative of an emergency management system provider.

7. A health care professional from a statewide association representing pediatricians.

8. A health care professional from a statewide association representing physicians.

9. A health care professional from a statewide association representing nurses.

10. A representative of an association of county health officers.

11. A representative of an association representing hospitals.

12. A professional who specializes in the prevention, diagnosis and treatment of behavioral health problems.

13. A county sheriff, or the sheriff's designee, who represents a county with a population of less than five hundred thousand persons and a county sheriff, or the sheriff's designee, who represents a county with a population of at least five hundred thousand persons.

14. A representative of a veterans organization or military family advocacy program.

15. A representative of a statewide association representing area agencies on aging.

16. A representative of a nonprofit community-based organization providing suicide prevention services.

17. A representative of a rural health organization.

C. The review team shall:

1. Develop a suicide mortalities data collection system.

2. Conduct an annual analysis on the incidences and causes of suicides in this state during the preceding fiscal year.

3. Encourage and assist in the development of local suicide mortality review teams.

4. Develop standards and protocols for local suicide mortality review teams and provide training and technical assistance to these teams.

5. Develop protocols for suicide investigations, including protocols for law enforcement agencies, prosecutors, medical examiners, health care facilities and social service agencies.

6. Study the adequacy of statutes, ordinances, rules, training and services to determine what changes are needed to decrease the incidence of preventable suicides and, as appropriate, take steps to implement these changes.

7. Educate the public regarding the incidences and causes of suicide as well as the public's role in preventing these deaths.

8. Designate a member of the review team to serve as chairperson.

D. Review team members are not eligible to receive compensation, but members appointed pursuant to subsection B of this section are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

E. The department of health services shall provide professional and administrative support to the team.

§ 36-199.01 Access to information; confidentiality; violation; classification

A. On request of the chairperson of the suicide mortality review team or a local team and as necessary to carry out the team's duties, the chairperson shall be provided, within five days excluding weekends and holidays, with access to information and records regarding a suicide that is being reviewed by the team. The team may request the information and records from any of the following:

1. A provider of medical, dental, nursing or mental health care.

2. A health care insurer.

3. This state or a political subdivision of this state that might assist the team in reviewing the fatality.

B. A law enforcement agency, with the approval of the prosecuting attorney, may withhold from a review team investigative records that might interfere with a pending criminal investigation or prosecution.

C. The director of the department of health services or the director's designee may apply to the superior court for a subpoena as necessary to compel the production of books, records, documents and other evidence related to the person who died by suicide. Subpoenas issued under this subsection shall be served and, on application to the court by the director or the director's designee, enforced in the manner provided by law for the service and enforcement of subpoenas. A law enforcement agency is not required to produce the information requested under the subpoena if the subpoenaed evidence relates to a pending criminal investigation or prosecution. All records shall be returned to the agency or organization on completing the review. The review team may not keep written reports or records containing identifying information.

D. All information and records acquired by the suicide mortality review team or any local team are confidential and are not subject to subpoena, discovery or introduction into evidence in any civil or criminal proceeding, except that information, documents and records that are otherwise available from other sources are not immune from subpoena, discovery or introduction into evidence through those sources solely because they were presented to or reviewed by a team pursuant to this article.

E. Members of a team, persons attending a team meeting and persons who present information to a team may not be questioned in any civil or criminal proceeding regarding information presented in or opinions formed as a result of a meeting. This subsection does not prevent a person from testifying to information that is obtained independently of the team or that is public information.

F. Pursuant to policies adopted by the suicide mortality review team, a member of the suicide mortality review team or a local team may contact, interview or obtain information by request or subpoena from a family member of a deceased person who died by suicide. The suicide mortality review team or a local team must approve any contact, interview, request or subpoena before the team member contacts, interviews or obtains information from the family member of a deceased person who died by suicide.

G. Meetings of the suicide mortality review team or a local team are closed to the public and are not subject to title 38, chapter 3, article 3.1 if the team is reviewing information on an individual who died by suicide. All other team meetings are open to the public.

H. A person who violates the confidentiality requirements of this section is guilty of a class 2 misdemeanor.

Chapter 2 State Health Institutions and Agencies

Article 1 Arizona State Hospital

§ 36-201 Definitions

In this article, unless the context otherwise requires:

1. "Chief medical officer" means the chief medical officer of the state hospital.

2. "Department" means the department of health services.

3. "Director" means the director of the department of health services.

4. "Employee" means an officer or employee of the state hospital.

5. "State hospital" means Arizona state hospital.

6. "Superintendent" means the superintendent of the state hospital.

§ 36-202 State hospital for the mentally disordered; official name; purpose; facilities and equipment

A. A state hospital shall be maintained for the care and treatment of persons with mental disorders and persons with other personality disorders or emotional conditions who will benefit from care and treatment. Admissions to the state hospital shall be in accordance with law. The hospital shall be called the Arizona state hospital.

B. Subject to legislative appropriation, the state hospital may provide services to persons suffering from alcoholism and to persons suffering from drug abuse.

C. The state hospital shall have adequate facilities and equipment for enlightened and scientific treatment of nervous and mental diseases in accordance with approved methods of mental therapeutics. The facilities shall include, among other things:

1. Facilities for medical and psychiatric treatment with special attention to occupational therapy and other special therapies.

2. Facilities for proper segregation and care of child patients.

3. Facilities for recreation and physical training.

4. An institutional library for the use of patients.

5. A properly equipped dental department.

6. A properly equipped laboratory and x-ray department.

7. A patient tracking system approved by the director that monitors individual progress on an inpatient basis and ensures suitable aftercare placement.

D. The state hospital shall be under the charge and control of the director of the department of health services, pursuant to this article.

§ 36-202.01 Admission of juveniles to state hospital

The Arizona state hospital shall collect census data for juvenile treatment programs to establish maximum capacity and the allocation formula required pursuant to section 36-206, subsection D. The Arizona state hospital is not required to provide services to juveniles that exceed the funded capacity. If the Arizona state hospital reaches its funded capacity for juveniles, the superintendent of the state hospital shall establish a waiting list for admission based on the date of the commitment or treatment order.

§ 36-203 Persons with intellectual disabilities assigned to state hospital; department duties

A. The department of health services shall develop and provide, in coordination with the department of economic security, specialized treatment programs for persons with an intellectual disability who have been admitted to the state hospital. The department of health services may contract with the department of economic security in providing these programs.

B. The department, to the extent practicable, shall provide separate areas at the state hospital for persons diagnosed with intellectual disabilities and, to the extent practicable, shall provide that treatment programs developed pursuant to subsection A of this section are separate from treatment programs for other patients and for separate use of facilities by persons diagnosed with intellectual disabilities.

C. The department of health services, on request of a parent or guardian of a minor with an intellectual disability or the guardian of an adult with an intellectual disability or on the request of an adult with an intellectual disability, shall notify the department of economic security before the release of that person from the state hospital and request that the department of economic security provide placement evaluation and case management services for that person. The evaluation shall consider the person's needs for housing, day programs, employment training, employment and support services.

D. The department, on the application of a parent or guardian of a minor with an intellectual disability or the guardian of an adult with an intellectual disability or on the request of an adult with an intellectual disability, when the person has been authorized for discharge from the state hospital, may provide interim care and custody for that person pending the availability of intellectual disability programs and services in accordance with section 36-556.

§ 36-204 Duties of director

The director shall:

1. Adopt rules for inpatient services that ensure proper review of treatment and discharge plans, arrangement for aftercare placements, transfer of medical records and assistance with medications.

2. If deemed advisable, establish a nurses' training school in connection with the state hospital, which shall be under the supervision of the superintendent.

3. Prescribe forms of complaints, certificates of mental illness and commitments.

4. Adopt rules for the commitment of mentally ill persons that are not inconsistent with provisions of law.

5. Adopt rules for the administration of the state hospital and to carry out the purposes of this article.

§ 36-205 Superintendent of state hospital; appointment; qualifications; compensation; chief medical officer

A. There shall be a superintendent of the state hospital who shall be appointed by and under the supervision of the director.

B. The compensation to be paid to the superintendent shall be determined pursuant to section 38-611.

C. The superintendent shall be removed only for cause.

D. The superintendent shall have the following qualifications:

1. Administrative experience in the private sector.

2. An educational background that prepares the superintendent for the administrative responsibilities assigned to the position.

3. Mental health-related experience in both an institutional and community setting.

E. The superintendent, with the approval of the director, shall appoint a chief medical officer of the state hospital who is a physician and who is licensed pursuant to title 32, chapter 13 or 17. The chief medical officer shall have not less than three years' experience in the treatment of psychiatric disorders and shall be board-certified in psychiatry by the board of psychiatry and neurology. The chief medical officer is eligible for compensation pursuant to section 38-611. The chief medical officer is responsible for the clinical administration of the hospital and shall report directly to the superintendent.

§ 36-206 Duties of superintendent; clinical assessment

A. The director has charge of the state hospital and the superintendent shall supervise and direct its activities, subject to the provisions of law and approval of the director. The superintendent is directly responsible to the director for carrying out the purposes for which the hospital is maintained. Subject to the approval of the director, the superintendent may deputize any qualified officer of the state hospital to do or perform any act the superintendent is empowered to do or charged with the responsibility of doing by law.

B. The superintendent in December each year shall estimate the probable daily per capita cost of treatment and maintenance of each category of patients for the next ensuing year as determined in accordance with standard accounting practices. A statement of the estimate shall be provided to the director in January of the following year.

C. The superintendent, on request, shall provide to the director a clinical assessment of the state hospital's programs.

D. On or before August 1 of each year, the director shall establish maximum funded capacity and a percentage allocation formula for forensic and civil bed capacity at the Arizona state hospital based on census data collected pursuant to sections 13-3992, 13-4512, 36-202.01 and 36-503.03. By June 1 of each year, the director shall solicit and consider the recommendations of representatives of the county board of supervisors, the Arizona prosecuting attorneys' advisory council and the superior court when establishing this formula. In addition to establishing the formula, the director, the county board of supervisors, the Arizona prosecuting attorneys' advisory council and the superior court shall develop a contingency plan for the placement of patients subject to sections 13-3992, 13-4512, 36-202.01 and 36-503.03 in times of emergency and other unforeseen circumstances. The director shall notify the governor, the president of the senate, the speaker of the house of representatives and the chairperson of each county board of supervisors of the funded capacity and allocation formula for the current fiscal year. Thirty days before the notification of the forensic and civil bed funded capacity formula, the director shall provide this information to the representatives of the county board of supervisors, the Arizona prosecuting attorneys' advisory council and the superior court for comment. The director shall include these comments when issuing the formula.

§ 36-207 Fingerprinting requirements; definition

A. A state hospital employee or volunteer must have a valid fingerprint clearance card issued pursuant to section 41-1758.07 or must apply for a fingerprint clearance card within seven working days after beginning employment or performing volunteer work. The employee or volunteer must certify on forms that are provided by the department and that are notarized that the person is not awaiting trial on or has never been convicted of or admitted in open court or pursuant to a plea agreement to committing any of the offenses listed in section 41-1758.07, subsection B in this state or any similar offense in another state or jurisdiction. A conviction after a plea of no contest is deemed to be a conviction for the purposes of this subsection.

B. The state hospital may not allow a person to be an employee or perform volunteer work if that person has been denied a fingerprint clearance card pursuant to section 41-1758.07 or has not received an interim approval from the board of fingerprinting pursuant to section 41-619.55, subsection I.

C. For the purposes of this section, "state hospital" includes the Arizona community protection and treatment center.

§ 36-208 Employees; compensation

A. Except as otherwise provided by this article, the director shall employ all employees of the state hospital. The director may employ necessary medical consultants on recommendation of the superintendent. The director may permit members of the medical staff to act as consultants in psychiatry.

B. Subject to the laws of this state governing state personnel administration, the superintendent may discharge an employee for cause. An employee so discharged, on request, may have the reasons for the discharge reviewed and determined by the director. The superintendent shall file a written report with the director of each discharge setting forth the reasons for the discharge.

C. The compensation of employees of the state hospital shall be as determined pursuant to section 38-611.

§ 36-209 Reports by superintendent and director

A. At such time as the director designates, the superintendent shall submit to the director a report of the activities of the state hospital during the preceding fiscal year, including:

1. The number of patients received, conditionally discharged and discharged and voluntary patients treated.

2. Methods of treatment used and the results.

3. The total number, including the number of such persons who were committed on a voluntary and involuntary basis, of seriously mentally ill patients as defined in section 36-550 and the place to which each person was discharged.

4. Census data for treatment programs pursuant to sections 13-3992, 13-4512, 36-202.01 and 36-503.03.

5. A complete employment and personnel record.

6. The condition of existing equipment.

7. Recommendations for improvement of the institution.

8. Other matters required by the director or deemed advisable by the superintendent to present a complete description of the condition and activities of the hospital.

B. Not later than the fifteenth day of each month, the director shall prepare in duplicate a financial statement of the affairs of the state hospital, including:

1. The amounts appropriated for the current fiscal year for operation, maintenance and improvement.

2. The amount expended during the preceding calendar month.

3. The balance on hand.

4. The estimated expenditures for the current month.

5. An inventory report.

C. The original report and statements required by this section shall be filed with and retained as records of the director and duplicates filed with the director of the department of administration.

D. At such time as the director designates, the superintendent shall submit to the director a financial statement of the affairs of the state hospital during the preceding fiscal year in a form prescribed by the director of the department of administration.

E. By October 1 of each year, the director shall submit to the governor a comprehensive report of the activities of the state hospital during the preceding fiscal year, which shall include the annual reports of the superintendent, and shall contain:

1. An account of the work done.

2. Recommendations for improvements.

3. Financial statements that clearly reflect the origin and disposition of all monies that have come into the hands of the director or an employee through appropriations or otherwise.

F. The director shall make such supplemental reports as the governor or the legislature requests.

G. The annual report prescribed by subsection E of this section shall be published for the information of the public and five copies shall be delivered to the chief clerk of the house of representatives and the secretary of the senate, respectively, who shall keep them on file for the use of the members of each house.

§ 36-210 Expenditures

A. This article does not give the director or any employee authority to create a debt or obligation in excess of the amount appropriated by the legislature to carry out its provisions. If monies are not appropriated to carry out the purpose of this article, the director shall submit recommendations to the legislature, with a statement of the cost when an improvement is requested.

B. Except as provided by subsection D of this section, the director of the department of administration shall not issue a warrant for expenditures by the state hospital in excess of the estimate contained in the monthly financial statement unless the superintendent submits a written request that is approved in writing by the director of the department of health services and that states the reasons for the request. The director of the department of administration shall not issue warrants in excess of the amount available for the current quarter.

C. If a patient in the state hospital requires a health care service that the state hospital or a facility or provider contracted by the state hospital cannot provide, the department of health services shall pay approved claims from a facility or provider that provides these required services as follows:

1. For inpatient and outpatient hospital services, the state shall reimburse at a level that does not exceed the reimbursement methodology established in section 36-2903.01, subsection G.

2. For health and medical services, the state shall reimburse providers at a level that does not exceed the capped fee-for-service schedule that is adopted by the Arizona health care cost containment system administration pursuant to chapter 29, article 1 of this title and that is in effect at the time the service is delivered.

D. Monies appropriated for capital investment may be expended at any time during the fiscal period for which the monies are appropriated as directed by the director.

§ 36-211 Income from land rentals and permanent funds

In addition to other funds appropriated to its use, any other law notwithstanding, the legislature may appropriate to the use of the state hospital the annual income from land rentals and interest on the investment of the permanent funds arising from the grant of land for insane asylums under the terms of the enabling act of June 20, 1910, and the state constitution. The monies appropriated by this section may be expended as the director directs.

§ 36-212 Maximum security area required

The superintendent, under the direction of the director, shall equip, staff and supervise the operation of an area consisting of one or more separate buildings on the state hospital grounds in Phoenix to be designated a maximum security area. The superintendent shall designate which patients shall be confined within a maximum security area, which shall be equipped, staffed and maintained in order to provide treatment and necessary supervision to prevent the patients from leaving the area without authorization.

§ 36-213 Store and canteen; deposit

A. The superintendent, with the approval of the director, may set aside and designate any space on the grounds of the hospital that is not needed for other authorized purposes for the establishment and maintenance of store and canteen facilities for the sale of candies, cigarettes, food, nonalcoholic beverages, sundries and other articles to patients and employees and for the benefit of patients of the state hospital.

B. The superintendent, with the approval of the director, may contract with an outside firm, individual or agency to lease and operate the store and canteen facilities. The outside firm, individual or agency shall provide a bond in an amount set by the superintendent with the approval of the director. The facilities shall be conducted subject to the rules and regulations of the department, and rental and service charges shall be established by the superintendent, with the approval of the director, as will reimburse the hospital for the cost thereof.

C. Any profits derived from the operation of such facilities, after reimbursement to the hospital, shall be deposited in the department of health services donations fund created by authority of section 36-132, subsection B. The monies may be expended as the director directs for the benefit of the patients of the state hospital. The provisions of title 35, chapter 1 do not apply to the monies in the fund.

§ 36-214 Arizona state hospital; private operation

A. Notwithstanding any law to the contrary, pursuant to requests for proposals, the department of health services may enter into a five year contract with a private entity to administer the Arizona state hospital and deliver client services. The contract shall allow the department to renew the contract for two subsequent renewal periods of not more than five years each and shall prescribe the circumstances under which the department may terminate the contract before the end of a five year period. The department may issue separate requests for proposals for criminal, civil, juvenile and adult population categories in the state hospital.

B. The contract shall include the following requirements:

1. The contractor must successfully attain performance goals prescribed by the department and the joint legislative budget committee relating to improvement of the state hospital's administration and delivery of client services.

2. The contractor shall not use subcontractors or subsidiaries to deliver services prescribed in the contract.

C. To be considered for an award of a contract, the contractor must demonstrate that it has:

1. The qualifications, operations and management experience and experienced personnel necessary to carry out the terms of the contract.

2. The ability to comply with applicable standards and any specific court order, if required.

3. A demonstrated history of successful operation and management of secure behavioral health facilities.

4. A demonstrated history of successful delivery of behavioral health services.

D. The contractor must agree:

1. That this state may cancel the contract at any time after the first year of operation, without penalty to this state, on ninety days' written notice.

2. To be in compliance at all times with all corrective action plans that are in effect at the time the contract is entered into or that are subsequently entered into by this state and the center for medicare and medicaid services.

3. To comply with all medicare certification requirements.

E. A contract may provide for annual contract price or cost adjustments, except that any adjustments may be made only once each year effective on the anniversary of the effective date of the contract. If any adjustment is made pursuant to the terms of the contract, it must be applied to the total payments made to the contractor for the previous contract year and shall not exceed the per cent of change in the average consumer price index as published by the United States department of labor, bureau of labor statistics between that figure for the latest calendar year and the next previous calendar year. Any price or cost adjustments different than those authorized in this subsection may be made only if the legislature specifically authorizes the adjustments and appropriates monies for that purpose, if required.

F. The department shall not award a contract unless:

1. It receives an acceptable proposal pursuant to any request for proposals. For the purposes of this paragraph, "acceptable proposal" means a proposal that substantially meets all of the requirements or conditions prescribed in this section and that meets all of the requirements in the request for proposals.

2. The proposal offers cost savings to this state based on the standard cost comparison model approved by the joint legislative budget committee.

3. The proposal offers a level and quality of services that equal or exceed those that would be provided by this state.

4. The contractor provides audited financial statements for the previous five years, or for each of the years the contractor has been in operation, if fewer than five years, and provides other financial information as requested.

5. The contractor provides an adequate plan of insurance, specifically including coverage or insurance for civil rights claims and liabilities as approved by the risk management division of the department of administration.

6. The contractor agrees to be liable for the costs of any emergency, public safety or security services provided to the contractor by this state or any political subdivision of this state and to reimburse this state or any political subdivision of this state for the cost of those services.

G. The sovereign immunity of this state does not apply to the contractor. Neither the contractor nor the insurer of the contractor may plead the defense of sovereign immunity in any action arising out of the performance of the contract.

H. The contract terms are subject to prior review by the joint legislative budget committee before placement of any advertisement that solicits a response to a request for proposals. Any proposed modification or amendment to the contract is subject to prior review by the joint legislative budget committee.

I. During its first year of operation, the contracting entity shall submit monthly reports to the department and the joint legislative budget committee as prescribed by the department. Thereafter, the contracting entity shall submit quarterly reports to the department and the joint legislative budget committee as prescribed by the department.

J. At the end of the fourth year of the contract, an independent evaluator selected by the department shall conduct and complete a performance review to determine if the contracting entity has met the goals specified in the contract. The independent evaluator shall submit a report of its findings to the governor, the president of the senate, the speaker of the house of representatives and the joint legislative budget committee on or before May 1, 2010 and shall provide a copy of its report to the secretary of state and the director of the Arizona state library, archives and public records.

K. The department shall make a good faith attempt to place all state hospital personnel who are under the state personnel system on the effective date of the contract entered into pursuant to this section and who are not offered continued employment by the contracting entity.

L. All appropriated monies that remain unexpended and unencumbered on the effective date of the contract entered into pursuant to this section revert to the state general fund.

M. The department of health services shall report to the joint legislative budget committee by July 1, 2006 on whether the department intends to privatize the state hospital. If the department intends to privatize the state hospital, the report shall contain a time frame for issuing a request for proposals. If the department decides against privatizing the state hospital, the report shall include the department's rationale for not doing so.

§ 36-215 State hospital revolving fund; nonreversion

A. The permanent state hospital revolving fund is established in the amount of five thousand dollars for use in making cash outlays for postage, C.O.D. packages, travel or other minor disbursements which are proper as ultimate claims for payment from state funds. Such expenditures from this fund and reimbursement thereto shall be as prescribed by the director of the department of administration.

B. A full accounting of the use of this fund shall be made to the director of the department of administration annually or as required by the director of the department of administration.

C. Monies of the permanent state hospital revolving fund shall not revert to the state general fund at the end of any fiscal year.

§ 36-216 Budget for state hospital

A. The department shall present a budget request that includes all information on the potential availability of other monies, including federal monies, that may be used in the following fiscal year to fund the state hospital.

B. The budget request presented pursuant to subsection A of this section shall include a proposed budget for the state hospital, with a specific amount of the total budget estimated to be used for patients who are seriously mentally ill.

C. Monies appropriated to the department for the state hospital programs, fees generated by the department for these programs and grants and gifts to the department shall be maintained in the appropriate fund to pay program and administrative costs. The administrative costs of each program shall be separately identified in the accounting records of the department.

§ 36-217 State hospital; annual report

A. On or before January 1 of each year, the director shall submit to the governor, the speaker of the house of representatives and the president of the senate a financial and programmatic report on the state hospital for the preceding fiscal year. In addition to information that the department deems relevant, this report shall include all of the following information:

1. All revenues and expenditures of the state hospital, including specific identification of administrative costs for and the number of patients served at the state hospital.

2. A breakdown of the patients served at each facility at the state hospital, including information on the following:

(a) Gender.

(b) Race.

(c) Age.

(d) Legal status.

(e) County of origin.

(f) Program type.

(g) Census by unit.

(h) Primary diagnosis of each by category.

(i) Length of stay.

3. Admissions by civil commitment, including the number of admissions and discharges, the time between the request for each admission and the date of the admission or denial of the admission and aggregate data for reason of denial by category.

4. Data collected from the state hospital's safety plan, including all of the following:

(a) The number and type of all assaults by category, with sexual assaults reported as a separate category.

(b) The number of assaults reported to law enforcement, regulatory agencies and accreditation agencies.

(c) The number of times law enforcement was called to the state hospital in response to an assault.

5. An update on the establishment of a psychiatric center of excellence.

B. This section does not require the release of individually identifiable health information of any specific patient.

§ 36-218 Arizona state hospital charitable trust fund

The Arizona state hospital charitable trust fund is established consisting of monies collected from contracts and lease agreements entered into pursuant to section 36-136, subsection C. The director shall administer the fund. Monies in the fund are continuously appropriated and may be spent for the benefit of persons with mental illness in this state. Monies in the fund do not revert to the state general fund at the end of a fiscal year.

§ 36-219 Contracting requirements; art therapy services; definition

A. The department may contract for art therapy services, directly or through a contractor, only with an art therapist who holds an active national board certification in art therapy from the art therapy credentials board or who is a master's level graduate in art therapy under the active supervision of a board-certified art therapist to qualify for national registration or board certification with the art therapy credentials board.

B. Subsection A of this section does not require the department to contract or reimburse for art therapy services.

C. For the purposes of this section, "art therapy" means the interactive use of psychotherapeutic principles and methods from an individual with master's level training in art media, the neurobiological implications of art-making and art-based assessment models to facilitate alternative modes of receptive and expressive communication and to define and implement therapeutic interventions to meet cognitive, developmental, behavioral and emotional needs.

Article 2 State Laboratory

§ 36-251 State laboratory

A. The state laboratory shall be located in such places as the department of health services determines.

B. The laboratory shall examine and analyze such foods, water supplies, drugs and other specimens as the director of the department of health services directs.

§ 36-252 Chief of state laboratory; appointment; qualifications

A. The state laboratory shall be under the supervision of a chief who shall be appointed by the director of the department of health services.

B. The laboratory chief shall be a skilled pharmaceutical chemist or bacteriologist and analyst of foods, water supplies and drugs.

§ 36-253 Chief of state laboratory; powers and duties

A. The laboratory chief shall perform the duties prescribed by law and by the director of the department of health services.

B. The laboratory chief may make provisions or issue directions for taking and forwarding samples of potable waters, and perishable foods or drinks.

§ 36-254 Evidentiary effect of certificate of chief of state laboratory

A certificate of analysis and examination by the chief of the state laboratory is prima facie evidence of the facts therein stated.

§ 36-255 Reports by laboratory chief

A. Whenever the chief of the state laboratory finds that adulterated, mislabeled or misbranded food has been on sale in the state, he shall forthwith report the facts to the director of the department of health services.

B. The chief of the laboratory shall make an annual report to the director of the department of health services on or before July 1 each year upon adulterated, mislabeled or misbranded foods and liquids, including a list of examinations by him in which adulterants were found, the articles found mislabeled or misbranded and the names of the manufacturers, producers, jobbers and sellers of such adulterated, mislabeled or misbranded articles.

Article 3 Children With Chronic Illnesses or Physical Disabilities

§ 36-260 Definitions

In this article, unless the context otherwise requires:

1. "Children who have a chronic illness or physical disability" means children who are under twenty-one years of age and whose primary diagnosis is a severe physical condition that may require ongoing, medical or surgical intervention.

2. "Department" means the department of health services.

§ 36-261 Children who have a chronic illness or physical disability; program

Subject to the availability of monies, the department shall establish and administer a program for children who have a chronic illness or physical disability or who are suffering from a condition that leads to a chronic illness or physical disability. The program shall provide for:

1. The development, extension and improvement of services for locating these children.

2. The evaluation of needs.

3. The gathering of statistical information.

4. A statewide information and referral service for children who have a chronic illness or physical disability to link those children and their families with local service providers.

§ 36-262 Central statewide information and referral service for children who have a chronic illness or physical disability

A. The purposes of the information and referral service for children who have a chronic illness or physical disability as prescribed pursuant to this article are to:

1. Establish a roster of agencies providing medical, educational, financial, social and transportation services to children who have a chronic illness or physical disability.

2. Develop or use an existing statewide information and referral service that provides information on services for children who have a chronic illness or physical disability.

B. This section does not require any person or public or private agency or other entity to participate in the information and referral service.

Article 4 Biomedical Research

§ 36-271 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Disease" means a condition or disorder that causes the human body to deviate from its normal or healthy state and that has no known general cure or adequate medically accepted treatment.

3. "Medically accepted treatment" means a methodology or protocol recognized by the American medical association, the American college of surgeons or the national cancer institute or taught by an approved school of medicine as defined in section 32-1401 as a treatment that results in the restoration of the human body to a normal or healthy state.

§ 36-272 Biomedical research

The department shall advance research in this state relating to:

1. The causes, epidemiology and diagnosis of diseases.

2. The formulation of cures for diseases.

3. The development of medically accepted treatment and prevention of diseases, including the discovery and development of new drugs.

§ 36-273 Powers and duties

A. The department may:

1. Use monies in the disease control research fund established by section 36-274 to contract with individuals, organizations, corporations and institutions, public or private, in this state for any projects or services that the department determines may advance research into the causes, the epidemiology and diagnosis, the formulation of cures, the medically accepted treatment or the prevention of diseases, including new drug discovery and development, and for acquired immune deficiency syndrome reporting and surveillance. Public monies in the disease control research fund shall not be used for capital construction projects.

2. Enter into research and development agreements, royalty agreements, development agreements, licensing agreements and profit sharing agreements concerning the research, development and production of new products developed or to be developed through department-funded research.

3. Accept or receive monies from any source, including restricted or unrestricted gifts and contributions from individuals, foundations, corporations and other organizations and institutions.

4. Obtain expert services to assist in evaluating requests and proposals.

5. Request cooperation from any state agency for the purposes of this article.

6. Provide information and technical assistance to other jurisdictions and agencies.

7. Subject to title 41, chapter 4, article 4, employ personnel needed to carry out the duties of this article.

B. The department shall:

1. Review and evaluate proposals or requests for projects or services.

2. Establish a mechanism to review the contracts awarded to ensure that the monies are used in accordance with the proposals approved by the department.

3. Prepare and submit a report on or before January 15 of each year to the governor, the president of the senate and the speaker of the house of representatives that describes the projects or services proposed to the department pursuant to this article, the projects or services for which the department has awarded a contract and the amount of monies necessary for each proposal, the cost of each proposal for which a contract was awarded, the names and addresses of the recipients of each contract and the purpose for which each contract was made. The department shall provide a copy of this report to the secretary of state.

§ 36-274 Disease control research fund; lapsing; investment

A. The disease control research fund is established consisting of monies received from the state lottery fund pursuant to section 5-572, subsection D, monies appropriated by the legislature and any gifts, contributions or other monies received by the department from any source to carry out the purposes of this article, except monies from the health research fund established by section 36-275. The department shall administer the disease control research fund.

B. The department may expend monies in the disease control research fund for projects or services pursuant to section 36-273 and for expenses incurred by the department in carrying out the purposes of this article, including filing applications and maintaining patents.

C. As a condition of each contract for cancer research projects or services, the department shall require that the recipient shall not use fund monies for any purpose, including any administrative or building purposes, other than the specific cancer research grant project contract.

D. Monies in the disease control research fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

E. On notice from the department, the state treasurer shall invest and divest monies in the disease control research fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 36-275 Health research fund

A. The health research fund is established. Notwithstanding any law to the contrary, the department shall deposit, pursuant to sections 35-146 and 35-147, all monies it administers pursuant to section 36-773 into the health research fund. The department shall administer the fund.

B. Except as provided by section 36-276, the department shall only expend monies in the health research fund for research on the prevention and treatment of tobacco related disease and addiction and research into the causes, epidemiology and diagnosis of diseases, the formulation of cures, the medically accepted treatment or the prevention of diseases including new drug discovery and development, and may include behavioral studies and attitude assessments, and for expenses incurred by the department in carrying out the purposes described in section 36-773.

C. Monies in the health research fund are exempt from section 35-190 relating to lapsing of appropriations.

Chapter 3 Vital Records and Public Health Statistics

Article 1 General Provisions

§ 36-301 Definitions

In this chapter, unless the context otherwise requires:

1. "Administrative order" means a written decision issued by an administrative law judge or quasi-judicial entity.

2. "Amend" means to make a change, other than a correction, to a registered certificate by adding, deleting or substituting information on that certificate.

3. "Birth" or "live birth" means the complete expulsion or extraction of an unborn child from the child's mother, irrespective of the duration of the pregnancy, that shows evidence of life, with or without a cut umbilical cord or an attached placenta, such as breathing, heartbeat, umbilical cord pulsation or definite voluntary muscle movement after expulsion or extraction of the unborn child.

4. "Certificate" means a record that documents a birth or death.

5. "Certified copy" means a written reproduction of a registered certificate that a local registrar, a deputy local registrar or the state registrar has authenticated as a true and exact written reproduction of a registered certificate.

6. "Correction" means a change made to a registered certificate because of a typographical error, including misspelling and missing or transposed letters or numbers.

7. "Court order" means a written decision issued by:

(a) The superior court, an appellate court or the supreme court or an equivalent court in another state.

(b) A commissioner or judicial hearing officer of the superior court.

(c) A judge of a tribal court in this state.

8. "Current care" means that a health care provider has examined, treated or provided care for a person for a chronic or acute condition within eighteen months preceding that person's death. Current care does not include services provided in connection with a single event of emergency or urgent care. For the purposes of this paragraph, "treated" includes prescribing medication.

9. "Custody" means legal authority to act on behalf of a child.

10. "Department" means the department of health services.

11. "Electronic" means technology that has electrical, digital, magnetic, wireless, optical or electromagnetic capabilities or technology with similar capabilities.

12. "Evidentiary document" means written information used to prove the fact for which the document is presented.

13. "Family member" means:

(a) A person's spouse, natural or adopted offspring, father, mother, grandparent, grandchild to any degree, brother, sister, aunt, uncle or first or second cousin.

(b) The natural or adopted offspring, father, mother, grandparent, grandchild to any degree, brother, sister, aunt, uncle or first or second cousin of the person's spouse.

14. "Fetal death" means the cessation of life before the complete expulsion or extraction of an unborn child from the child's mother that is evidenced by the absence of breathing, heartbeat, umbilical cord pulsation or definite voluntary muscle movement after expulsion or extraction.

15. "Final disposition" means the interment, cremation, removal from this state or other disposition of human remains.

16. "Foundling" means:

(a) A newborn infant left with a safe haven provider pursuant to section 13-3623.01.

(b) A child whose father and mother cannot be determined.

17. "Funeral establishment" has the same meaning prescribed in section 32-1301.

18. "Health care institution" has the same meaning prescribed in section 36-401.

19. "Health care provider" means:

(a) A physician licensed pursuant to title 32, chapter 13 or 17.

(b) A doctor of naturopathic medicine licensed pursuant to title 32, chapter 14.

(c) A midwife licensed pursuant to chapter 6, article 7 of this title.

(d) A nurse midwife certified pursuant to title 32, chapter 15.

(e) A nurse practitioner licensed and certified pursuant to title 32, chapter 15.

(f) A physician assistant licensed pursuant to title 32, chapter 25.

(g) A health care provider who is licensed or certified by another state or jurisdiction of the United States and who works in a federal health care facility.

20. "Human remains" means a lifeless human body or parts of a human body that permit a reasonable inference that death occurred.

21. "Issue" means:

(a) To provide a copy of a registered certificate.

(b) An action taken by a court of competent jurisdiction, administrative law judge or quasi-judicial entity.

22. "Legal age" means a person who is at least eighteen years of age or who is emancipated by a court order.

23. "Medical certification of death" means the opinion of the health care provider who signs the certificate of probable or presumed cause of death that complies with rules adopted by the state registrar of vital records and that is based on any of the following that is reasonably available:

(a) Personal examination.

(b) Medical history.

(c) Medical records.

(d) Other reasonable forms of evidence.

24. "Medical examiner" means a medical examiner or alternate medical examiner as defined in section 11-591.

25. "Name" means a designation that identifies a person, including a first name, middle name, last name or suffix.

26. "Natural causes" means those causes that are due solely or nearly entirely to disease or the aging process.

27. "Presumptive death" means a determination by a court that a death has occurred or is presumed to have occurred but the human remains have not been located or recovered.

28. "Register" means to assign an official state number and to incorporate into the state registrar's official records.

29. "Responsible person" means a person listed in section 36-831.

30. "Seal" means to bar from access.

31. "Submit" means to present, physically or electronically, a certificate, evidentiary document or form provided for in this chapter to a local registrar, a deputy local registrar or the state registrar.

32. "System of public health statistics" means the processes and procedures for:

(a) Tabulating, analyzing and publishing public health information derived from vital records data and other sources authorized pursuant to section 36-125.05 or section 36-132, subsection A, paragraph 3.

(b) Performing other activities related to public health information.

33. "System of vital records" means the statewide processes and procedures for:

(a) Electronically or physically collecting, creating, registering, maintaining, copying and preserving vital records.

(b) Preparing and issuing certified and noncertified copies of vital records.

(c) Performing other activities related to vital records.

34. "Unborn child" has the same meaning prescribed in section 36-2151.

35. "Vital record" means a registered birth certificate or a registered death certificate.

§ 36-302 System of vital records; powers and duties of the state registrar

A. The director of the department is the state registrar of vital records.

B. The state registrar of vital records shall:

1. Adopt rules to implement a statewide system of vital records pursuant to this chapter using the recommendations of the federal agency responsible for national vital statistics as guidelines subject to modification by the state registrar.

2. Administer and enforce this chapter and the rules adopted pursuant to this chapter and provide for the efficient administration of a statewide system of vital records.

3. Organize, operate and maintain the only system of vital records in this state.

4. Direct and supervise the creation and registration of vital records, electronically and physically, and be the custodian of vital records.

5. Establish registration districts throughout this state.

6. Appoint, direct and remove local registrars.

7. Prescribe and distribute forms required pursuant to this chapter and rules adopted pursuant to this chapter.

8. Prepare and issue copies of vital records.

9. Provide a means for the public to request a copy of a vital record and grant or deny the request according to criteria prescribed by rules adopted pursuant to this chapter. These rules shall include eligibility criteria, proof of identity requirements and payment requirements to obtain the requested vital record.

10. Pursuant to section 16-165, transmit each month to the county recorder a record of the death of each resident of the county recorder's county who is at least sixteen years of age.

11. Determine acceptability and completeness of a certificate, evidentiary document or form submitted to the state registrar.

12. Investigate violations of this chapter and rules adopted pursuant to this chapter.

13. Report violations of this chapter and rules adopted pursuant to this chapter to the county attorney in the registration district in which the violation occurs or to the attorney general.

C. The state registrar may:

1. Appoint, in writing, one or more persons to serve as assistant state registrars with any or all powers and duties vested in the state registrar.

2. Appoint, direct and remove a deputy local registrar.

3. Inspect a registration district's certificates, evidentiary documents, forms or other information related to the system of vital records.

4. Establish quality control procedures that include on-site inspections and review of evidentiary documents, forms and other information used in the creation of vital records.

5. Consolidate or subdivide registration districts.

§ 36-303 System of public health statistics; powers and duties of the department

A. The department shall:

1. Administer and enforce this chapter and rules adopted pursuant to this chapter.

2. Provide for the efficient administration of a system of public health statistics.

B. The department may adopt rules to implement a system of public health statistics pursuant to this chapter.

Article 2 Registration Officials

§ 36-311 Appointment and removal of local registrars and deputy local registrars

A. The state registrar shall appoint the county health officer of the county health department as the local registrar for a registration district. If a county health department does not have a county health officer, the state registrar shall appoint an employee of the county health department as the local registrar for a registration district.

B. With notice to the state registrar, the local registrar may appoint one or more persons to serve as deputy local registrars with any of the duties vested in the local registrar.

C. The state registrar may remove a local registrar or a deputy local registrar who does not comply with this chapter or rules adopted pursuant to this chapter or for any other reasonable cause.

D. After notice to the state registrar, the local registrar may remove a deputy local registrar who does not comply with this chapter or rules adopted pursuant to this chapter or for any other reasonable cause.

E. The state registrar may abolish the office of a local registrar if the registration district for which the local registrar is appointed is combined with another registration district.

§ 36-312 Local registrars and deputy local registrars; powers and duties

A local registrar and deputy local registrar of a registration district shall:

1. Administer and enforce this chapter and rules adopted pursuant to this chapter.

2. Assist the state registrar in investigating violations of this chapter and rules adopted pursuant to this chapter.

3. Electronically or physically submit certificates, evidentiary documents and forms to the state registrar as directed by the state registrar.

4. Register certificates only as directed by the state registrar.

5. Preserve and maintain records and perform other duties required by the state registrar.

6. At the request of the state registrar, make certificates, evidentiary documents or forms related to the system of vital records available to the state registrar for inspection.

7. At the request of the state registrar, provide birth certificates and death certificates to the state registrar.

8. Prepare and issue copies of certificates according to rules adopted pursuant to this chapter.

§ 36-313 Deputy local registrars; compensation

A. A deputy local registrar shall receive from the county general fund in that registration district one dollar for each birth certificate, death certificate or fetal death certificate registered by the deputy local registrar and submitted to the state registrar pursuant to this chapter and rules adopted pursuant to this chapter.

B. At least quarterly the state registrar shall provide written notification to the clerk of the board of supervisors in each registration district that specifies the number of birth certificates, death certificates and fetal death certificates registered by the deputy local registrar prescribed in subsection A and the amount of compensation the deputy local registrar is entitled to for the period pursuant to this section.

Article 3 Death Registration and Birth Registration Certificate Requirements

§ 36-321 Information required for a certificate

A. The state registrar shall prescribe by rule the information required to be submitted to create or amend a vital record.

B. A person who submits a certificate for registration must make a reasonable effort to ensure that the information on the certificate is correct and accurate.

C. A certificate registered pursuant to this chapter must include an official state number and the date of registration.

§ 36-322 Sealing a certificate

A. The state registrar shall seal a certificate and evidentiary documents when the state registrar amends the registered certificate.

B. Unless required by a court order and except as provided in section 36-340, the state registrar shall not issue a copy of a certificate or other record sealed pursuant to this section.

§ 36-323 Amending registered certificates: corrections

A. The state registrar shall amend a registered certificate pursuant to this chapter and rules adopted pursuant to this chapter.

B. The state registrar shall amend a registered birth certificate to show the new name of a person born in this state if:

1. The person, the person's parent or the person's legal guardian requests the new name and the state registrar receives a court order to change the person's name on the registered birth certificate.

2. A voluntary acknowledgement of paternity submitted pursuant to section 25-812 includes a request to change the person's name on the registered birth certificate.

C. The state registrar shall adopt rules for making corrections to vital records.

§ 36-324 Vital records; copies; access

A. On written request, a local registrar, a deputy local registrar or the state registrar shall issue a certified copy of a registered certificate, except the portion of the certificate that contains medical information, to any person determined to be eligible to receive the certified copy pursuant to criteria prescribed by rules. A local registrar, a deputy local registrar or the state registrar shall issue certified copies of a registered certificate to a licensed funeral director or the funeral director's designee on the funeral director's or designee's written or in-person request. The local registrar, deputy local registrar or state registrar shall provide the certified copies by mail or in person to the funeral director or the funeral director's designee on request.

B. A certified copy of a registered certificate has the same status as the registered certificate.

C. The United States public health service may receive copies, microfilm and other information from the state registrar to prepare national vital statistics subject to the following limitations:

1. The United States public health service bears the cost of preparing and transmitting the copies, microfilm and other information.

2. The copies, microfilm and other information are used for statistical purposes and the United States public health service assures a person's anonymity.

D. In child support cases under 42 United States Code sections 651 through 669 or in public benefit matters under chapter 29 of this title or title 46, the state registrar shall provide copies of or access to vital records without charge to the department of economic security or its attorneys. In child welfare cases under title 8, the state registrar shall provide copies of or access to vital records without charge to the department of child safety or its attorneys. A vital record obtained as authorized in this section must be used only for official purposes and, if used in a public proceeding, must be sealed by the court or hearing officer.

E. The state registrar shall provide a copy of or access to a vital record to a government agency for its official purposes.

F. Notwithstanding any other law, a child who is at least sixteen years of age and who either does not have a residence address or is in the department of child safety's custody may receive a certified copy of the child's certificate of birth registration without the signature of the child's parent, guardian or foster parent.

§ 36-325 Death certificate registration; moving human remains; immunity

A. Within seven calendar days after receiving possession of human remains, a funeral establishment or responsible person who takes possession of the human remains shall:

1. Obtain and complete the information, including the social security number of the decedent, on the death certificate required pursuant to this chapter and rules adopted pursuant to this chapter.

2. Provide on the death certificate the name and address of the person completing the death certificate.

3. Submit the death certificate for registration to a local registrar, a deputy local registrar or the state registrar. The funeral establishment or responsible person may submit the death certificate by electronic means in the format prescribed by the state registrar.

B. Within seventy-two hours after receiving a death certificate pursuant to this section, a local registrar, a deputy local registrar or the state registrar shall register a death certificate if it is accurate and complete and submitted pursuant to this chapter and rules adopted pursuant to this chapter.

C. If a county medical examiner or alternate medical examiner determines that the circumstances of a death provide jurisdiction pursuant to section 11-593, subsection B, the medical examiner or alternate medical examiner shall complete and sign the medical certification of death on a death certificate within seventy-two hours after the examination, excluding weekends and holidays. If the medical examiner or alternate medical examiner cannot determine the cause of death within that time, the medical examiner or alternate medical examiner shall enter "pending" for the cause of death and sign the medical certification of death within seventy-two hours after the examination, excluding weekends and holidays.

D. A local registrar, a deputy local registrar or the state registrar shall register a death certificate if there is a medical certification of death signed by the medical examiner or alternate medical examiner with a pending cause of death.

E. Final disposition of human remains with a pending cause of death shall not occur until the medical examiner or alternate medical examiner releases the human remains for final disposition.

F. When the medical examiner or alternate medical examiner determines the cause of death, the medical examiner or alternate medical examiner shall submit the information to the local registrar, deputy local registrar or state registrar.

G. If a person under the current care of a health care provider for an acute or chronic medical condition dies of that condition, or complications associated with that condition, the health care provider or a health care provider designated by that provider shall complete and sign the medical certification of death on a death certificate within seventy-two hours. If current care has not been provided, the medical examiner or alternate medical examiner shall complete and sign the medical certification of death on a death certificate within seventy-two hours after the examination, excluding weekends and holidays.

H. If a person dies in a hospital, nursing care institution or hospice inpatient facility of natural causes, the hospital, nursing care institution or facility shall designate a health care provider to complete and sign the medical certification of death within seventy-two hours.

I. If a person dies on an Indian reservation in this state and a county medical examiner or alternate medical examiner is not available, the tribal law enforcement authority, acting in an official investigative capacity, may complete and sign the medical certification of death.

J. If the place of death is unknown, the death is considered to have occurred in the place where the human remains were found.

K. If a person dies in a moving conveyance, the death is considered to have occurred in the place where the human remains were initially removed from the conveyance. In all other cases, the place where death is pronounced is considered the place where the death occurred.

L. The state registrar shall create and register a death certificate when the state registrar receives a court order of a presumptive death. The court order shall contain the following information, if known:

1. The decedent's name, social security number, date of birth, date of death, cause of death and location of death.

2. Any other information necessary to complete a death certificate for a presumptive death.

M. If a murder victim's body is not recovered, a conviction for the murder is proof of death. The court shall forward a record of the conviction to the state registrar. The state registrar shall obtain the personal data regarding the murder victim from information provided by the court, a family member of the murder victim or another reliable source and create and register the death certificate.

N. A health care provider who completes and signs a medical certification of death in good faith pursuant to this section is not subject to civil liability or professional disciplinary action.

§ 36-325.01 Delayed death certificate registration

If a death occurs in this state and is not registered within one year after the date of the death, the local registrar, deputy local registrar or state registrar shall register the death certificate as a delayed death certificate.

§ 36-326 Disposition-transit permits

A. A funeral establishment or responsible person who takes possession of human remains shall obtain a disposition-transit permit from a local registrar, a deputy local registrar or the state registrar before doing either of the following:

1. Providing final disposition of the human remains.

2. Moving the human remains out of this state.

B. Human remains that are moved from a hospital, nursing care institution or hospice inpatient facility must be accompanied by a form provided by the hospital, nursing care institution or hospice inpatient facility authorizing the release of the human remains. The form shall contain the information required in rules adopted pursuant to this chapter.

C. A funeral establishment or responsible person may move human remains from a hospital, nursing care institution or hospice inpatient facility where death occurred without obtaining a disposition-transit permit if the funeral establishment or responsible person does not remove the human remains from this state and provides notice to the local registrar or deputy local registrar in the registration district where the death occurred within twenty-four hours after moving the human remains.

D. A funeral establishment or responsible person may move human remains from a place other than a hospital, nursing care institution or hospice inpatient facility where death occurred without obtaining a disposition-transit permit if the funeral establishment or responsible person does not remove the human remains from this state and provides notice to the local registrar or deputy local registrar in the registration district where death occurred within seventy-two hours after moving the human remains.

E. Embalmed human remains, disinterred human remains and human remains that are not embalmed that are shipped by common carrier inside or outside of this state for the purposes of burial, cremation or funeral services shall be placed in a suitable shipping container that is designed for transporting human remains. Human remains that are not embalmed and that are shipped inside or outside of this state are not required to be transported within twenty-four hours after death.

F. A hospital or abortion clinic is not required to obtain a disposition-transit permit if an unborn child is expelled or extracted at the hospital or abortion clinic and all the following apply:

1. The gestation period of the unborn child is less than twenty weeks or, if the gestation period is unknown, the weight of the unborn child is less than three hundred fifty grams.

2. A county medical examiner's investigation is not required.

3. The woman on whom the abortion was performed has authorized the hospital or abortion clinic to dispose of the unborn child.

G. To obtain a disposition-transit permit, a funeral establishment or responsible person must submit the information required pursuant to this chapter and rules adopted pursuant to this chapter to the state registrar or to the local registrar or deputy local registrar of the registration district where the death occurred.

H. A local registrar, a deputy local registrar or the state registrar shall provide a disposition-transit permit to a funeral establishment or other responsible person if the information provided pursuant to subsection B of this section complies with this chapter and rules adopted pursuant to this chapter.

I. A local registrar, a deputy local registrar or the state registrar shall provide a disposition-transit permit for interment of human remains in a cemetery only if the location of the cemetery has been recorded in the office of the county recorder in the county where the cemetery is located or the cemetery is located on federal or tribal land.

J. A local registrar, a deputy local registrar or the state registrar shall provide a disposition-transit permit issued by this state for the final disposition of human remains in this state on receipt of a disposition-transit permit from another state that accompanies the human remains from the other state.

§ 36-327 Disinterment-reinterment permit

A. Except as otherwise provided by law, a disinterment-reinterment permit is required before a person disinters human remains. The state registrar shall provide a permit to disinter human remains either by a court order issued in this state or by the written consent of the decedent's family member who has the highest priority. The order of priority is the same as provided in section 36-831.

B. A disinterment-reinterment permit is not required if disinterment and reinterment occur in the same cemetery for ordinary relocation or for reasons of internal management of the cemetery.

§ 36-328 Registration of a death certificate for a foreign presumptive death

A. The state registrar shall create and register a death certificate for a foreign presumptive death if the state registrar receives a court order issued in this state of a presumptive death of a resident of this state in a foreign country. The court order shall contain the following information, if known:

1. The decedent's name, social security number, date of birth, date of death, cause of death and location of death.

2. Any other information necessary to complete a death certificate for a foreign presumptive death.

B. A death certificate for a foreign presumptive death shall state on the death certificate the name of the foreign country where death is presumed to have occurred.

§ 36-329 Fetal death certificate registration

A. A hospital, abortion clinic, physician or midwife shall submit a completed fetal death certificate to the state registrar for registration within seven days after the fetal death for each fetal death occurring in this state after a gestational period of twenty completed weeks or if the unborn child weighs more than three hundred fifty grams.

B. The requirements for registering a fetal death certificate are the same as the requirements for registering a death certificate prescribed in section 36-325.

§ 36-329.01 Delayed fetal death certificate registration

A. If a fetal death occurs in this state and is not registered within one year after the date of the fetal death, the local registrar, deputy local registrar or state registrar shall register the fetal death certificate as a delayed fetal death certificate.

B. The requirements for registering a delayed fetal death certificate are the same as the requirements for registering a delayed death certificate prescribed in section 36-325.01.

§ 36-330 Certificate of birth resulting in stillbirth; requirements

A. In addition to the requirements of section 36-329, the state registrar shall establish a certificate of birth resulting in stillbirth on a form approved by the state registrar for each fetal death occurring in this state after a gestational period of at least twenty completed weeks. This certificate shall be offered to the parent or parents of a stillborn child.

B. A certificate of birth resulting in stillbirth shall meet all of the format and filing requirements for birth certificates prescribed in section 36-333.

C. The person who prepares a certificate pursuant to this section shall leave blank any references to the stillborn child's name if the stillborn child's parent or parents do not wish to provide a name for the stillborn child.

D. Notwithstanding subsections A and B of this section, the certificate of birth resulting in stillbirth shall be submitted to the designated registrar within seven days following the delivery and before the cremation or removal of the fetus from the registration district.

§ 36-330.01 Delayed registration of certificate of birth resulting in stillbirth

If a birth resulting in stillbirth occurring in this state has not been registered within one year after the date of delivery, a certificate of birth resulting in stillbirth marked "delayed" may be submitted and registered pursuant to this chapter and rules adopted pursuant to this chapter and other requirements sufficient to substantiate the alleged facts of a birth resulting in stillbirth.

§ 36-331 Duties of persons in charge of place of disposition

A. Except as otherwise provided by law, a person in charge of a place of disposition shall not inter, cremate or allow other disposition of human remains without receiving a disposition-transit permit with the human remains.

B. A person in charge of a place of disposition shall maintain a record of a disposition pursuant to rules adopted pursuant to this chapter.

C. A person in charge of a place of disposition shall permit the state registrar to inspect the disposition records.

§ 36-332 Notification of death to responsible person and release of human remains

A health care institution shall not release human remains or allow the removal of human remains from the health care institution until the health care institution makes a diligent effort to notify the responsible person and obtain the name of the entity to whom the human remains are to be released.

§ 36-333 Birth certificate registration

A. Within seven days after a child's birth in this state, a person shall submit to a local registrar, a deputy local registrar or the state registrar, a birth certificate for registration according to rules adopted pursuant to this chapter. The birth certificate shall be submitted physically or electronically through the state designated electronic registration system. A local registrar, a deputy local registrar or the state registrar may accept a certificate submitted electronically without the signatures required by rule.

B. If a birth occurs at a hospital, the chief administrative officer of the hospital or that person's designee shall:

1. Obtain the information for a birth certificate, including signatures and social security numbers required by rule.

2. Fill out the birth certificate.

3. Submit the birth certificate for registration to a local registrar, a deputy local registrar or the state registrar.

4. Maintain a copy of the evidentiary documents used to fill out the birth certificate for ten years after the date of submission.

C. If a birth does not occur at a hospital one of the following persons shall obtain the information, evidentiary documents, social security numbers and signatures required by rule for a birth certificate, fill out the birth certificate and submit the birth certificate for registration to a local registrar, a deputy local registrar or the state registrar:

1. A physician, nurse or midwife who is present at the birth and who is willing and able to do so during or immediately after the birth.

2. If a physician, nurse or midwife is not present at the birth or is not willing or able to do so, the child's mother or father or a family member of legal age who is present, willing and able to do so during or immediately after the birth.

3. If the child's father or other family member of legal age is not present or is not willing or able and the child's mother is not willing or able to supply the required information, any other person who is present during or immediately after the child's birth and who can supply the required information.

D. If a birth occurs in a moving conveyance, the birth is considered to have occurred in the place where the child is initially removed from the conveyance. If the child is initially removed from the conveyance at a hospital, the person named in subsection B shall submit the birth certificate to the state registrar or the local registrar or deputy local registrar of the registration district where the child is first removed. If the child is initially removed from the conveyance at any location other than at a hospital, the person identified in subsection C shall submit the birth certificate to the state registrar or to the local registrar or deputy local registrar of the registration district where the child is first removed.

E. A local registrar, a deputy local registrar or the state registrar shall register a birth certificate if the birth certificate is accurate and complete and submitted according to this chapter and rules adopted pursuant to this chapter.

§ 36-333.01 Late birth certificate registration

If a completed birth certificate and evidentiary documents are submitted to a local registrar, a deputy local registrar or the state registrar for registration more than seven days but less than one year after the date of birth, the local registrar, deputy local registrar or state registrar shall register the birth certificate as a late birth certificate if the information on the birth certificate and evidentiary documents are accurate and complete, support the registration of the late birth certificate and are submitted pursuant to this chapter and rules adopted pursuant to this chapter.

§ 36-333.02 Delayed birth certificate registration

A. If a birth certificate of a person who is born in this state is not registered within one year after the date of birth, a person authorized by this chapter may submit to the state registrar information and evidentiary documents that support the creation and registration of a delayed birth certificate.

B. The state registrar may waive the information and evidentiary document requirements in subsection A of this section for a birth that occurred before 1970.

C. The state registrar shall create a delayed birth certificate that includes a listing of the information and evidentiary documents submitted pursuant to subsection A of this section.

D. The state registrar shall register a delayed birth certificate if the information and evidentiary documents are accurate and complete, support the creation and registration of the delayed birth certificate and are submitted pursuant to this chapter and rules adopted pursuant to this chapter.

E. If the state registrar determines that the information and evidentiary documents are not accurate and complete or do not support the creation and registration of the delayed birth certificate, the state registrar shall not create and register the delayed birth certificate, shall notify the person requesting a delayed birth certificate of the reasons for not creating and registering the delayed birth certificate and shall advise the person requesting a delayed birth certificate of that person's right to petition for a court order pursuant to section 36-333.03.

F. The state registrar shall establish documentation requirements for Native Americans who were born before 1970 and who are requesting delayed birth certificates. If a requesting party presents documents that do not meet the documentation requirements established by the state registrar, the director shall review the documents submitted and determine whether to create and register a delayed birth certificate.

§ 36-333.03 Record of birth; petition; requirements; notice; court order; definition

A. If a delayed birth certificate for a person who is born in this state is not created and registered pursuant to section 36-333.02, that person or, if the person is under eighteen years of age, the person's parent or legal guardian may petition the court for an order to establish a record of the person's date of birth, place of birth and parentage.

B. The petition must allege:

1. That the person for whom a delayed birth certificate is requested was born in this state.

2. That the person's birth is not registered in another state or country.

3. That a record of birth for the person cannot be found in this state's vital records.

4. That despite diligent efforts the petitioner was unable to obtain the information and evidentiary documents required for the creation and registration of a delayed birth certificate.

5. That the state registrar has refused to create and register a delayed birth certificate.

6. Any other allegations the petitioner believes would be useful to the court.

B. The petitioner shall submit to the court a copy of the notification provided pursuant to section 36-333.02, subsection E and all information and evidentiary documents that were submitted to the state registrar to support the request for the registration of a delayed birth certificate.

C. The court shall set a date, time and place for a hearing on the petition and shall provide notice of the date, time and place to the state registrar and the petitioner at least twenty days before the hearing. The state registrar may appear and testify at the hearing.

D. If the court finds that the evidence presented for the petitioner supports the creation and registration of a delayed birth certificate, the court shall establish the facts of birth, including parentage and any other findings that may be required, and shall issue an order to create and register a delayed birth certificate on a form that is provided by the state registrar and that includes the facts of birth, a description of the information and evidentiary documents submitted to the court and the date of the court's action.

E. The clerk of the court shall forward an order issued pursuant to subsection D of this section to the state registrar not later than the tenth day of the calendar month following the month in which the court issued its order. Based on the information contained in the order, the state registrar shall create and register a delayed birth certificate that includes a list of the information and evidentiary documents as stated in the order.

F. For the purposes of this section, "court" means the superior court or tribal court.

§ 36-334 Determining maternity and paternity for birth certificates

A. A person completing a birth certificate shall state the name of the woman who gave birth to the child on the birth certificate as the child's mother unless otherwise provided by law or court order.

B. The state registrar shall not refuse to register a birth certificate because the birth certificate does not include the name of the father.

C. If a father's name is stated on a birth certificate, the father's name shall be stated on a birth certificate as follows:

1. Except as provided in section 25-814, if the mother is married at the time of birth or was married at any time in the ten months before the birth, the name of the mother's husband.

2. If a mother and father who are not married to each other at the time of birth and were not married to each other in the ten months before the birth voluntarily acknowledge paternity pursuant to section 25-812, the name of the father acknowledging paternity.

3. If the state registrar receives an administrative order or a court order establishing paternity, the father's name in the order.

D. If the acknowledgement of paternity is rescinded pursuant to section 25-812, the state registrar shall remove the father's name from the registered birth certificate.

§ 36-335 Birth registration for foundlings

A. A person who has custody of a foundling shall submit to the state registrar or to the local registrar or a deputy local registrar of the registration district where the foundling was found the following information:

1. The date the foundling was found.

2. The location where the foundling was found.

3. The sex, approximate race and approximate age of the foundling.

4. The name and address of the person who has custody of the foundling.

5. The name given to the foundling by the person who has custody of the foundling.

6. Any other data required by rules adopted pursuant to this chapter.

B. The state registrar shall create and register a birth certificate for a foundling and enter on the birth certificate the following information:

1. The location where the foundling was found as the place of birth.

2. The date of birth based on the approximate age of the foundling.

C. A person who has custody of a foundling and determines the foundling's identity shall notify the state registrar in writing of the determination.

D. If the identity of a foundling is determined, the state registrar shall seal the foundling's registered birth certificate and provide access to the foundling's registered birth certificate only pursuant to a court order issued in this state.

§ 36-336 Adoption certificate

A. For an adoption of a person born in this state, a state court shall submit to the state registrar an adoption certificate on a form approved by the state registrar or pursuant to a court order that includes:

1. Information required by rule about the adoptive father and adoptive mother.

2. Information required by rule about the child being adopted.

3. A statement by the court that the information on the adoption certificate is accurate.

4. The contact preference form prescribed in section 36-340.

B. For an adoption of a person born in this state and ordered by a court in another state, the state registrar shall accept an order for an adoption or an adoption certificate that contains the information in subsection A.

C. If a court modifies a court order for adoption, the state registrar shall follow the procedures in this chapter for amending a registered certificate.

D. By the tenth day of each month, a court in this state shall submit to the state registrar all adoption certificates, court orders for adoption and court orders for modification of adoption for the preceding month.

E. When the state registrar receives an adoption certificate, a court order for adoption, a change to a court order for adoption or an annulment of an adoption for a person born in another state, the state registrar shall send the document to the appropriate registration authority in the state where the person was born.

§ 36-337 Amending birth certificates

A. The state registrar shall amend the birth certificate for a person born in this state when the state registrar receives any of the following:

1. Except as provided in subsection D of this section, an adoption certificate or a court order for adoption required pursuant to section 36-336.

2. A voluntary acknowledgment of paternity pursuant to section 25-812.

3. For a person who has undergone a sex change operation or has a chromosomal count that establishes the sex of the person as different than in the registered birth certificate, both of the following:

(a) A written request for an amended birth certificate from the person or, if the person is a child, from the child's parent or legal guardian.

(b) A written statement by a physician that verifies the sex change operation or chromosomal count.

4. A court order ordering an amendment to a birth certificate.

B. The state registrar shall change the name of the father on a registered birth certificate if:

1. The state registrar receives an administrative order or a court order ordering the state registrar to change the father's name on the registered birth certificate.

2. Paternity is established through a voluntary acknowledgement of paternity pursuant to section 25-812.

C. If a registered birth certificate does not exist for a person born in this state who is requesting to amend a birth certificate the person making that request shall comply with the requirements established by rule.

D. The state registrar shall retain the information on a person's registered birth certificate after the person's adoption if all of the following documents are submitted to the state registrar:

1. A written request to retain the information signed by the adoptive parent or a court order containing a request to retain the information on the registered birth certificate.

2. A written statement agreeing to retain the mother's name on the person's registered birth certificate, signed by the mother, or if the mother is deceased, a certified copy of a registered death certificate for the mother.

3. If there is a father's name stated on the registered birth certificate, a written statement agreeing to retain the father's name on the person's registered birth certificate, signed by the father, or if the father is deceased, a certified copy of a registered death certificate for the father.

E. If the state registrar amends a registered birth certificate following adoption, the birth certificate shall state the city or county of birth stated on the existing registered birth certificate and the date of birth stated on the existing registered birth certificate. The state registrar may omit the exact location of birth on the registered birth certificate.

F. If a local registrar or deputy local registrar amends a registered birth certificate, the local registrar or deputy local registrar shall forward all evidentiary documents provided to create the new birth certificate to the state registrar.

G. If the state registrar amends a registered birth certificate, the state registrar shall seal the previously registered birth certificate and the evidentiary documents provided to amend the registered birth certificate. The state registrar shall provide access to a sealed certificate or evidentiary documents only pursuant to section 36-322 or 36-340 or a court order issued in this state or as prescribed by rule.

H. If the state registrar receives a court order annulling an adoption, the state registrar shall unseal the sealed registered birth certificate and shall seal the new birth certificate and evidentiary documents.

§ 36-338 Certificates of foreign birth for adoptees

A. The state registrar shall create and register a state of Arizona certificate of foreign birth for an adopted person who satisfies all of the following:

1. Was born in a foreign country.

2. Is not a United States citizen.

3. Has gone through a completed adoption process in a foreign country before coming to the United States.

4. Has an IR-3 stamped passport.

B. Before the state registrar creates and registers a certificate of foreign birth, either a state court, an adoptive parent or an adult adopted person must submit the following:

1. An adoption decree or other official document finalizing the adoption from the country of the adopted person's birth that has been translated into English.

2. A copy of the passport page showing the IR-3 stamp.

C. Before the state registrar creates and registers a certificate of foreign birth for a parent of an adopted child who has been issued an IR-3 visa and who has completed a readoption process in a court in this state, the parent must provide either of the following:

1. An original state of Arizona certificate of adoption issued by a court in this state.

2. A certified court order of adoption issued by a court in this state and either a birth certificate from the country of the adopted person's birth that has been translated into English or any other written documentation that establishes the date and place of the adopted person's birth and that has been translated into English.

D. If the adopted person does not have an IR-3 stamped passport, before the state registrar creates and registers a certificate pursuant to this section an adoptive parent or an adult adopted person must submit either:

1. An original state of Arizona certificate of adoption issued by a court in this state.

2. A certified court order of adoption issued by a court in this state and either a birth certificate from the country of the adopted person's birth that has been translated into English or any other written documentation that establishes the date and place of the adopted person's birth and that has been translated into English.

3. If the person was not adopted in this state, a court order issued in this state that recognizes the adoption pursuant to section 36-336.

E. The state registrar shall not create and register a state of Arizona certificate of foreign birth for an adopted person who was born in a foreign country and who was a United States citizen at the time of birth. The state registrar shall inform the adoptive parents or the adult adopted person that a birth certificate may be obtained through the United States department of state.

F. A state of Arizona certificate of foreign birth for an adopted person must show the country of birth and state that the certificate is not evidence of United States citizenship for the person for whom it is issued.

§ 36-339 Missing children; notification; flagging birth certificate records; definitions

A. If a child is reported missing to a law enforcement agency in this state, that agency shall notify the state registrar in the state of the child's birth. The notification shall include the missing child's name, date of birth and county of birth.

B. If the state registrar is notified pursuant to subsection A that a child born in this state is missing, the state registrar shall flag the child's registered birth certificate. If the missing child is found, the law enforcement agency that reported the child missing shall notify the state registrar and the state registrar shall remove the flag from the child's registered birth certificate.

C. If the state registrar receives a request for a registered certificate that is flagged, the state registrar shall:

1. Make a photocopy of the photo identification of the person making the request.

2. Document the physical description of the person making the request.

3. Immediately notify a law enforcement agency in this state of the request.

D. For the purposes of this section:

1. "Flag" means to indicate on a child's registered birth certificate that the child is a missing child.

2. "Missing child" means a child whose location cannot be determined and who is reported to a law enforcement agency as abducted, lost or a runaway.

§ 36-340 Adopted individual; sealed original birth certificate; contact preference and medical history forms; confidentiality

A. From and after December 31, 2021 and except as provided in subsection I of this section, the state registrar shall provide to an individual a copy of the individual's original birth certificate that has been sealed due to an adoption and any evidence of the adoption that is held with the original birth certificate, if all of the following are true:

1. The individual is at least eighteen years of age.

2. The individual was born in this state.

3. The individual submits to the state registrar a written request to receive a copy of the original birth certificate.

B. The copy of the original birth certificate shall clearly indicate that it is not a certified copy and that it may not be used for legal purposes.

C. The fees and procedures that apply to obtaining a copy of a registered certificate apply to obtaining a copy of an original birth certificate pursuant to this section.

D. The state registrar shall develop a contact preference form to be filled out by a birth parent, at the birth parent's option, and kept with the original birth certificate as provided in this section. The preference form shall do all of the following:

1. Indicate if the birth parent wants to do any of the following:

(a) Be contacted by the individual who receives the copy of the original birth certificate. If the birth parent wants to be contacted, the birth parent shall include the birth parent's current name, address and telephone number in addition to any other contact information the birth parent wishes to include.

(b) Be contacted only through an intermediary. If the birth parent wants to be contacted through an intermediary, the birth parent shall include the intermediary's name and telephone number.

(c) Not be contacted. The form shall indicate that the birth parent may change the contact preference to allow direct contact or contact through an intermediary by filing an amended contact preference form.

2. Indicate if the birth parent has completed and filed with the state registrar a medical history form.

3. Include the following information:

(a) The name of the child on the original birth certificate.

(b) The date of birth and sex of the child.

(c) The city or town, county and name of the hospital in which the child was born.

(d) The mother's name as shown on the original birth certificate.

(e) The name of the attorney or agency that placed the child for adoption or that the department placed the child for adoption.

(f) Whether the person filling out the form is the birth mother or birth father of the child.

E. The state registrar shall develop a medical history form to be completed by a birth parent at the birth parent's option.

F. The contact preference form and the medical history form are confidential. If the birth parent files the forms, the state registrar shall seal the forms together and retain them with the original birth certificate. The forms shall be given to the individual who receives the original birth certificate. The state registrar may not keep a copy of the contact preference form or the medical history form.

G. A birth parent may file an amended contact preference form or medical history form with the state registrar.

H. The department shall publicize the requirements of this section.

I. The birth parent may file an amended contact preference form pursuant to subsection D, paragraph 1, subdivision (c) of this section or update the information on the contact preference form by providing the state registrar the amended contact preference form or the new information electronically, in writing or in person.

J. The state registrar may not provide to an individual a copy of the individual's original birth certificate that has been sealed due to an adoption, if the individual was born from and after June 20, 1968 and before September 29, 2021.

Article 4 Fees and Vital Record Information

§ 36-341 Fees received by state and local registrars

A. The director of the department shall establish the fees to be charged for searches, copies of registered certificates, certified copies of registered certificates, amending registered certificates and correcting certificates that are processed by the department. The director may establish a surcharge to be assessed on any local registrar who obtains access to the department's vital records automation system. A local registrar may establish the local registrar's own fees to be charged for searches, copies of registered certificates, certified copies of registered certificates, amending registered certificates and correcting certificates as determined necessary by the local entity.

B. In addition to fees collected pursuant to subsection A of this section, the state registrar shall assess an additional one dollar surcharge on fees for all certified copies of registered birth certificates. The state registrar shall deposit, pursuant to sections 35-146 and 35-147, all monies received from the surcharge in the confidential intermediary and fiduciary fund established by section 8-135.

C. The state registrar shall keep a true and accurate account of all fees collected by the state registrar under this chapter and shall deposit, pursuant to sections 35-146 and 35-147:

1. Eighty-five per cent of the first four million dollars collected each fiscal year in the vital records electronic systems fund established by section 36-341.01 and the remaining fifteen per cent of the first four million dollars collected each fiscal year in the state general fund.

2. Forty per cent of the amount collected in excess of four million dollars each fiscal year in the vital records electronic systems fund established by section 36-341.01 and the remaining sixty per cent in the state general fund.

D. A local registrar shall keep a true and accurate account of all fees collected by the local registrar under this chapter and shall deposit them with the county treasurer to be credited to a special registration and statistical revenue account of the health department fund.

E. In addition to fees collected pursuant to subsection A of this section, the department shall assess an additional one dollar surcharge on fees for all certified copies of registered death certificates. The department shall deposit, pursuant to sections 35-146 and 35-147, monies received from the surcharge in the child fatality review fund established by section 36-3504.

F. The state and local registrars may exempt an agency as defined in section 41-1001 from any fee required by this section, section 8-135 or section 36-3504.

§ 36-341.01 Vital records electronic systems fund; purpose; nonlapsing

A. The vital records electronic systems fund is established consisting of monies collected pursuant to section 36-341. The director shall administer the fund. The director shall use fund monies for costs associated with the vital records automation system.

B. Fund monies:

1. Do not revert to the state general fund.

2. Are subject to legislative appropriation.

C. On notice from the director, the state treasurer shall invest and divest the monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 36-342 Disclosure of information; prohibition

A. The state registrar may provide information contained in vital records to persons, including federal, state, local and other agencies, as required by law and for statistical or research purposes.

B. Except as authorized by law, a local registrar, a deputy local registrar or the state registrar or their employees shall not:

1. Permit inspection of a vital record or evidentiary document supporting the vital record.

2. Disclose information contained in a vital record.

3. Transcribe or issue a copy of all or part of a vital record.

§ 36-343 Duty to provide information to the state registrar

A person who has knowledge of information relating to a birth, death or fetal death must provide this information to the state registrar on request.

§ 36-344 Violation; classification

A. A person is guilty of a class 1 misdemeanor if the person:

1. Knowingly makes a false statement in a certificate or record required to be filed pursuant to this chapter or in an application for an amendment of a certificate or who knowingly submits false information intending that the information be used in the creation or amendment of a certificate.

2. Without lawful authority and with the intent to deceive makes, alters, amends, mutilates or removes a certificate or record required to be submitted pursuant to this chapter or a certified copy of a registered certificate.

3. Knowingly uses or furnishes for use to another for the purpose of deception a certificate or record required to be submitted pursuant to this chapter or a certified copy of a registered certificate that has been made, altered, amended or mutilated.

4. With the intent to deceive, knowingly uses a birth certificate or a certified copy of a registered birth certificate knowing that the birth certificate or certified copy of the registered birth certificate was issued on a record that is false in whole or in part or that relates to the birth of another person.

5. Knowingly furnishes a birth certificate or certified copy of a registered birth certificate with the intent that it be used by a person other than the person named on the birth certificate.

6. Knowingly fails or refuses to report a death to a peace officer or, without proper authority, takes, removes or otherwise disturbs the human remains, clothing or articles of the deceased person.

B. A person is guilty of a class 3 misdemeanor if the person:

1. Knowingly transports or accepts for transportation or disposition human remains without an accompanying disposition-transit permit as required by this chapter.

2. Refuses to provide information required by this chapter.

3. Knowingly disregards any provision of this chapter or refuses to perform any of the duties imposed by this chapter.

§ 36-345 Effect of registration

A certificate registered pursuant to this chapter and rules adopted pursuant to this chapter is prima facie evidence of the facts stated in the certificate.

Article 5 Preserving and Archiving Vital Records

§ 36-351 Duties of the director; Arizona state library, archives and public records

A. The director shall provide safe, secure and permanent preservation of vital records. The director shall comply with preservation requirements, including the resolution necessary for authentic reproduction, established by the Arizona state library, archives and public records pursuant to section 39-101.

B. The director shall submit to the Arizona state library, archives and public records for permanent preservation, a copy of a person's:

1. Registered birth certificate seventy-five years after the person's birth.

2. Registered death certificate fifty years after the person's death.

C. Pursuant to section 41-151.09, subsection D, the Arizona state library, archives and public records shall provide access to registered birth certificates and registered death certificates submitted pursuant to subsection B of this section.

D. Each calendar year, the director shall reproduce on permanent media established by the Arizona state library, archives and public records pursuant to section 39-101, vital records registered for the calendar year including an index. The director shall submit the vital records and index to the Arizona state library, archives and public records, which shall provide for the confidential safekeeping of the vital records and index.

E. The director of the Arizona state library, archives and public records is entitled to receive records, including sealed records, within one hundred and twenty days on receipt or creation by the department. These electronic records shall be used only for archival or preservation purposes and may not be released or copied for other purposes.

Chapter 4 Health Care Institutions

Article 1 General Provisions

§ 36-401 Definitions; adult foster care

A. In this chapter, unless the context otherwise requires:

1. "Accredited health care institution" means a health care institution, other than a hospital, that is currently accredited by a nationally recognized accreditation organization.

2. "Accredited hospital" means a hospital that is currently accredited by a nationally recognized organization on hospital accreditation.

3. "Adult behavioral health therapeutic home" means a residence for individuals who are at least eighteen years of age, have behavioral health issues and need behavioral health services that does all of the following for those individuals:

(a) Provides room and board.

(b) Assists in acquiring daily living skills.

(c) Coordinates transportation to scheduled appointments.

(d) Monitors behaviors.

(e) Assists in the self-administration of medication.

(f) Provides feedback to case managers related to behavior.

4. "Adult day health care facility" means a facility that provides adult day health services during a portion of a continuous twenty-four-hour period for compensation on a regular basis for five or more adults who are not related to the proprietor.

5. "Adult day health services" means a program that provides planned care supervision and activities, personal care, personal living skills training, meals and health monitoring in a group setting during a portion of a continuous twenty-four-hour period. Adult day health services may also include preventive, therapeutic and restorative health-related services that do not include behavioral health services.

6. "Adult foster care home" means a residential setting that provides room and board and adult foster care services for at least one and not more than four adults who are participants in the Arizona long-term care system pursuant to chapter 29, article 2 of this title or contracts for services with the United States department of veterans affairs and in which the sponsor or the manager resides with the residents and integrates the residents who are receiving adult foster care into that person's family.

7. "Adult foster care services" means supervision, assistance with eating, bathing, toileting, dressing, self-medication and other routines of daily living or services authorized by rules adopted pursuant to section 36-405 and section 36-2939, subsection C.

8. "Assisted living center" means an assisted living facility that provides resident rooms or residential units to eleven or more residents.

9. "Assisted living facility" means a residential care institution, including an adult foster care home, that provides or contracts to provide supervisory care services, personal care services or directed care services on a continuous basis.

10. "Assisted living home" means an assisted living facility that provides resident rooms to ten or fewer residents.

11. "Behavioral health services" means services that pertain to mental health and substance use disorders and that are either:

(a) Performed by or under the supervision of a professional who is licensed pursuant to title 32 and whose scope of practice allows the professional to provide these services.

(b) Performed on behalf of patients by behavioral health staff as prescribed by rule.

12. "Construction" means building, erecting, fabricating or installing a health care institution.

13. "Continuous" means available at all times without cessation, break or interruption.

14. "Controlling person" means a person who:

(a) Through ownership, has the power to vote at least ten percent of the outstanding voting securities.

(b) If the applicant or licensee is a partnership, is the general partner or a limited partner who holds at least ten percent of the voting rights of the partnership.

(c) If the applicant or licensee is a corporation, an association or a limited liability company, is the president, the chief executive officer, the incorporator or any person who owns or controls at least ten percent of the voting securities. For the purposes of this subdivision, corporation does not include nonprofit corporations.

(d) Holds a beneficial interest in ten percent or more of the liabilities of the applicant or the licensee.

15. "Department" means the department of health services.

16. "Directed care services" means programs and services, including supervisory and personal care services, that are provided to persons who are incapable of recognizing danger, summoning assistance, expressing need or making basic care decisions.

17. "Direction" means authoritative policy or procedural guidance to accomplish a function or activity.

18. "Director" means the director of the department.

19. "Direct owner" means a person that has an ownership or control interest in a health care institution totaling fifty-one percent or more.

20. "Facilities" means buildings that are used by a health care institution for providing any of the types of services as defined in this chapter.

21. "Freestanding urgent care center":

(a) Means an outpatient treatment center that, regardless of its posted or advertised name, meets any of the following requirements:

(i) Is open twenty-four hours a day, excluding at its option weekends or certain holidays, but is not licensed as a hospital.

(ii) Claims to provide unscheduled medical services that are not otherwise routinely available in primary care physician offices.

(iii) By its posted or advertised name, gives the impression to the public that it provides medical care for urgent, immediate or emergency conditions.

(iv) Routinely provides ongoing unscheduled medical services for more than eight consecutive hours for an individual patient.

(b) Does not include the following:

(i) A medical facility that is licensed under a hospital's license and that uses the hospital's medical provider number.

(ii) A qualifying community health center pursuant to section 36-2907.06.

(iii) Any other health care institution licensed pursuant to this chapter.

(iv) A physician's office that offers extended hours or same-day appointments to existing and new patients and that does not meet the requirements of subdivision (a), item (i), (iii) or (iv) of this paragraph.

22. "Governing authority" means the individual, agency, partners, group or corporation, whether appointed, elected or otherwise designated, in which the ultimate responsibility and authority for the conduct of the health care institution are vested.

23. "Health care institution" means every place, institution, building or agency, whether organized for profit or not, that provides facilities with medical services, nursing services, behavioral health services, health screening services, other health-related services, supervisory care services, personal care services or directed care services and includes home health agencies as defined in section 36-151, outdoor behavioral health care programs and hospice service agencies.

24. "Health-related services" means services, other than medical, that pertain to general supervision, protective, preventive and personal care services, supervisory care services or directed care services.

25. "Health screening services" means the acquisition, analysis and delivery of health-related data of individuals to aid in determining the need for medical services.

26. "Hospice" means a hospice service agency or the provision of hospice services in an inpatient facility.

27. "Hospice service" means a program of palliative and supportive care for terminally ill persons and their families or caregivers.

28. "Hospice service agency" means an agency or organization, or a subdivision of that agency or organization, that provides hospice services at the place of residence of its clients.

29. "Indirect owner":

(a) Means a person that has an ownership or control interest in a direct owner totaling fifty-one percent or more.

(b) Includes an ownership or control interest in an indirect owner totaling fifty-one percent or more and a combination of direct ownership and indirect ownership or control interests totaling fifty-one percent or more in the health care institution.

30. "Inpatient beds" or "resident beds" means accommodations with supporting services, such as food, laundry and housekeeping, for patients or residents who generally stay in excess of twenty-four hours.

31. "Intermediate care facility for individuals with intellectual disabilities" has the same meaning prescribed in section 36-551.

32. "Licensed capacity" means the total number of persons for whom the health care institution is authorized by the department to provide services as required pursuant to this chapter if the person is expected to stay in the health care institution for more than twenty-four hours. For a hospital, licensed capacity means only those beds specified on the hospital license.

33. "Medical services" means the services that pertain to medical care and that are performed at the direction of a physician on behalf of patients by physicians, dentists, nurses and other professional and technical personnel.

34. "Modification" means the substantial improvement, enlargement, reduction or alteration of or other change in a health care institution.

35. "Nonproprietary institution" means any health care institution that is organized and operated exclusively for charitable purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, or that is operated by the state or any political subdivision of the state.

36. "Nursing care institution" means a health care institution that provides inpatient beds or resident beds and nursing services to persons who need continuous nursing services but who do not require hospital care or direct daily care from a physician.

37. "Nursing services" means those services that pertain to the curative, restorative and preventive aspects of nursing care and that are performed at the direction of a physician by or under the supervision of a registered nurse licensed in this state.

38. "Nursing-supported group home" means a health care institution that is a community residential setting as defined in section 36-551 for not more than six persons with developmental disabilities, that is operated by a service provider under contract with the department of economic security and that provides room and board, daily habilitation and continuous nursing support and intervention.

39. "Organized medical staff" means a formal organization of physicians, and dentists if appropriate, with the delegated authority and responsibility to maintain proper standards of medical care and to plan for continued betterment of that care.

40. "Outdoor behavioral health care program" means an agency that provides behavioral health services in an outdoor environment as an alternative to behavioral health services that are provided in a health care institution with facilities. Outdoor behavioral health care programs do not include:

(a) Programs, facilities or activities that are operated by a government entity or that are licensed by the department as a child care program pursuant to chapter 7.1 of this title.

(b) Outdoor activities for youth that are designated to be primarily recreational and that are organized by church groups, scouting organizations or similar groups.

(c) Outdoor youth programs that are licensed by the department of economic security.

41. "Personal care services" means assistance with activities of daily living that can be performed by persons without professional skills or professional training and includes the coordination or provision of intermittent nursing services and the administration of medications and treatments by a nurse who is licensed pursuant to title 32, chapter 15 or as otherwise provided by law.

42. "Physician" means any person who is licensed pursuant to title 32, chapter 13 or 17.

43. "Recidivism reduction services" means services that are delivered by an adult residential care institution to its residents to encourage lawful behavior and to discourage or prevent residents who are suspected of, charged with or convicted of one or more criminal offenses, or whose mental health and substance use can be reasonably expected to place them at risk for the future threat of prosecution, diversion or incarceration, from engaging in future unlawful behavior.

44. "Recidivism reduction staff" means a person who provides recidivism reduction services.

45. "Residential care institution" means a health care institution other than a hospital or a nursing care institution that provides resident beds or residential units, supervisory care services, personal care services, behavioral health services, directed care services or health-related services for persons who do not need continuous nursing services.

46. "Residential unit" means a private apartment, unless otherwise requested by a resident, that includes a living and sleeping space, kitchen area, private bathroom and storage area.

47. "Respite care services" means services that are provided by a licensed health care institution to persons who are otherwise cared for in foster homes and in private homes to provide an interval of rest or relief of not more than thirty days to operators of foster homes or to family members.

48. "Substantial compliance" means that the nature or number of violations revealed by any type of inspection or investigation of a health care institution does not pose a direct risk to the life, health or safety of patients or residents.

49. "Supervision" means directly overseeing and inspecting the act of accomplishing a function or activity.

50. "Supervisory care services" means general supervision, including daily awareness of resident functioning and continuing needs, the ability to intervene in a crisis and assistance in self-administering prescribed medications.

51. "Temporary license" means a license that is issued by the department to operate a class or subclass of a health care institution at a specific location and that is valid until an initial licensing inspection.

52. "Unscheduled medical services" means medically necessary periodic health care services that are unanticipated or cannot reasonably be anticipated and that require medical evaluation or treatment before the next business day.

B. If there are fewer than four Arizona long-term care system participants receiving adult foster care in an adult foster care home, nonparticipating adults may receive other types of services that are authorized by law to be provided in the adult foster care home as long as the number of adults served, including the Arizona long-term care system participants, does not exceed four.

C. Nursing care services may be provided by the adult foster care licensee if the licensee is a nurse who is licensed pursuant to title 32, chapter 15 and the services are limited to those allowed pursuant to law. The licensee shall keep a record of nursing services rendered.

§ 36-402 Exemptions

A. This chapter and the rules adopted by the director pursuant to this chapter do not authorize the licensure, supervision, regulation or control of:

1. The remedial care or treatment of residents or patients in any home or institution conducted only for those who rely solely on treatment by prayer or spiritual means in accordance with the creed or tenets of any well-recognized church or religious denomination.

2. Establishments, such as motels, hotels and boarding houses, that provide domiciliary and ancillary commercial services but do not provide adaptive, medical, hospital, nursing, behavioral health, health-related or supervisory care services.

3. Private offices and clinics of health care providers licensed under title 32 that are not freestanding urgent care centers, unless:

(a) Patients of the office or clinic are kept overnight as bed patients or treated otherwise under general anesthesia, except when treatment by general anesthesia is regulated by title 32, chapter 11.

(b) The office or clinic is an abortion clinic. For the purposes of this subdivision, "abortion clinic" has the same meaning prescribed in section 36-449.01.

(c) The office or clinic is a pain management clinic. For the purposes of this subdivision, "pain management clinic" has the same meaning prescribed in section 36-448.01.

4. Dispensaries and first aid stations that are located within business or industrial establishments and that are maintained solely for the use of employees if the facility does not contain inpatient beds and is under the supervision of a physician or a registered nurse practitioner.

5. The collection, processing or distribution of whole human blood, blood components, plasma, blood fractions or derivatives that are procured, processed or distributed by federally licensed and regulated blood banks.

6. Places where four or fewer adults who are not related to the administrator or owner receive adult day health services for compensation on a regular basis.

7. Places at which persons receive health-related services only from relatives or from legal guardians or places that do not purport to be establishments that regularly provide health-related services and at which one or two persons receive health-related services on a twenty-four-hour basis.

8. The personal residence of a terminally ill person, or the personal residence of that person's relative or guardian, where that person receives hospice services from a hospice service agency.

9. All medical and health-related facilities and services that are provided to inmates who are confined in a state prison. The state department of corrections shall annually evaluate the medical and health-related facilities and services that are provided to inmates to determine that the facilities and services meet the applicable standards that are adopted by the director of the department of health services. The state department of corrections shall report the results of its annual evaluation and the actual findings, including a plan of correction for any deficiencies, to the director of the department of health services. The department of health services shall conduct validation surveys on a percentage of the medical and health-related facilities, the number of which shall be determined by the state department of corrections and the department of health services. The director of the state department of corrections shall maintain the annual evaluation reports. This paragraph does not apply to licensed behavioral or mental health inpatient treatment facilities that the state department of corrections operates.

10. A facility that provides medical and health services to inmates who are confined in a county jail. The sheriff shall annually evaluate the facility to determine if it meets the applicable standards that are adopted by either a national corrections commission on health care or an American correctional association, or the sheriff shall annually submit the facility to a similar separate inspection by an outside agency with medical standards. The sheriff must submit the certificate of accreditation or proof of successful inspection to the department annually and keep a copy of the certificate or proof of inspection.

11. Community education, advocacy or recovery support groups that are not owned or operated by or contracted to provide services with a health care institution.

12. An outpatient treatment center that has the same direct owner or indirect owner as a hospital licensed pursuant to this chapter, that is staffed by health care providers who are licensed pursuant to title 32 and that provides notice to the department of its decision to be exempt from licensure under this chapter, unless:

(a) Patients are kept overnight in the outpatient treatment center or are treated under general anesthesia, except when the treatment by general anesthesia is regulated pursuant to title 32, chapter 11.

(b) The outpatient treatment center is an abortion clinic as defined in section 36-449.01.

(c) The outpatient treatment center is a pain management clinic as defined in section 36-448.01.

B. A medical and health-related facility that provides medical and health services exclusively to persons who are incarcerated, detained or confined under court order or court jurisdiction is exempt from the patient-per-room capacity requirements provided in rule if the facility:

1. Does not exceed its intended medical and custodial purposes.

2. Adopts policies and procedures to comply with the national commission on correctional health care standards, or equivalent standards.

3. As soon as practicable, becomes accredited by the national commission on correctional health care, or by an equivalent organization.

4. Once accreditation is obtained, submits a certificate of accreditation to the department of health services annually.

5. Maintains a copy of the certificate of accreditation.

6. Maintains patient and custodial records, including on-site current photographs and fingerprints, if permitted by applicable law.

7. Makes patient lists with inmate identifiers available to the state department of corrections on reasonable request.

8. Provides timely notice of any major incident involving public safety to the appropriate law enforcement agency and allows that agency access to the facility for the purposes of law enforcement and investigation.

C. Subsection B of this section does not apply to health care institutions that exclusively provide behavioral health services.

§ 36-403 Licensure by counties and municipalities

Nothing in this chapter shall prevent counties or municipalities from adopting and enforcing building and zoning regulations for health care institutions which are equal to or more restrictive than regulations of the department.

§ 36-404 Limitation of disclosure of information

A. Information received and records kept by the department for the purpose of administering this chapter are available to the public except:

1. Information obtained for purposes of articles 4 and 5 of this chapter.

2. Personally identifiable medical information or any information from which a patient or the patient's family might be identified.

3. Sources of information that cause the department to believe that an inspection of an institution is needed to determine the extent of compliance with this chapter and rules adopted pursuant to this chapter.

4. Personally identifiable information of a physician that is received and any records kept regarding the physician's admitting privileges pursuant to section 36-449.02.

B. The department may release information listed under subsection A of this section to an officer of the court pursuant to a court order, a department or agency of this state or the federal government, a law enforcement agency or a county medical examiner if the release of this information is necessary and pertinent to an investigation or proceeding unless the release of this information is prohibited by federal or state law. The recipient shall maintain patient and source name confidentiality.

§ 36-405 Powers and duties of the director

A. The director shall adopt rules to establish minimum standards and requirements for constructing, modifying and licensing health care institutions necessary to ensure the public health, safety and welfare. The standards and requirements shall relate to the construction, equipment, sanitation, staffing for medical, nursing and personal care services, and recordkeeping pertaining to administering medical, nursing, behavioral health and personal care services, in accordance with generally accepted practices of health care. The standards shall require that a physician who is licensed pursuant to title 32, chapter 13 or 17 medically discharge patients from surgery and shall allow an outpatient surgical center to require that either an anesthesia provider who is licensed pursuant to title 32, chapter 13, 15 or 17 or a physician who is licensed pursuant to title 32, chapter 13 or 17 remain present on the premises until all patients are discharged from the recovery room. Except as otherwise provided in this subsection, the director shall use the current standards adopted by the joint commission on accreditation of hospitals and the commission on accreditation of the American osteopathic association or those adopted by any recognized accreditation organization approved by the department as guidelines in prescribing minimum standards and requirements under this section.

B. The director, by rule, may:

1. Classify and subclassify health care institutions according to character, size, range of services provided, medical or dental specialty offered, duration of care and standard of patient care required for the purposes of licensure. Classes of health care institutions may include hospitals, infirmaries, outpatient treatment centers, health screening services centers and residential care facilities. Whenever the director reasonably deems distinctions in rules and standards to be appropriate among different classes or subclasses of health care institutions, the director may make such distinctions.

2. Prescribe standards for determining a health care institution's substantial compliance with licensure requirements.

3. Prescribe the criteria for the licensure inspection process.

4. Prescribe standards for selecting health care-related demonstration projects.

5. Establish nonrefundable application and licensing fees for health care institutions, including a grace period and a fee for the late payment of licensing fees.

6. Establish a process for the department to notify a licensee of the licensee's licensing fee due date.

7. Establish a process for a licensee to request a different licensing fee due date, including any limits on the number of requests by the licensee.

C. The director, by rule, shall adopt licensing provisions that facilitate the colocation and integration of outpatient treatment centers that provide medical, nursing and health-related services with behavioral health services consistent with article 3.1 of this chapter.

D. The director shall establish a model in rule for the department to monitor health care institutions on-site that are found to not be in substantial compliance with the applicable licensure requirements. The director shall establish on-site monitoring fees for health care institutions that are subject to the on-site monitoring requirements. The department may not charge a fee pursuant to this subsection for a complaint or compliance-related survey or inspection if a health care institution is in substantial compliance.

E. The department may provide in-service training to health care institutions that request in-service training relating to regulatory compliance outside of the survey process. The director shall establish in rule in-service training fees for health care institutions that request in-service training from the department.

F. Ninety percent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the health services licensing fund established by section 36-414 and ten percent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

G. Subsection B, paragraph 5 of this section does not apply to a health care institution operated by a state agency pursuant to state or federal law or to adult foster care residential settings.

§ 36-405.01 Health screening services; violation; classification

A. Health screening services shall be conducted in the following manner:

1. Health screening services shall be conducted under the direction of or, when required by good medical practice, under the supervision of a physician.

2. Any diagnosis of collected health-related data shall be performed by a physician.

3. Any examination of secretions, body fluids or excretions of the human body shall be performed pursuant to title 36, chapter 4.1.

4. Individuals may obtain health screening services on their own initiative.

5. Data given health-screened individuals shall be properly informative and not misleading.

6. Activities engaged in or materials used to educate, promote or otherwise solicit individuals to use health screening services shall not:

(a) Be misleading.

(b) Include the name of any physician, physician's office or clinic.

(c) Use or contain any language that directly or indirectly lauds the professional competence, skill or reputation of any physician.

7. A patient who is in need of medical care shall be informed that he should see a physician without referral to any particular physician.

B. The director may adopt such other regulations necessary or appropriate to carry out the purposes of this section.

C. Physicians affiliated with health screening services shall continue to be bound by the laws and ethics governing their practice. However, affiliation with health screening services conducted in conformity with this chapter shall not constitute a violation of such laws or ethics.

D. Health-screened individuals, with respect to their disclosures to and records with health screening services, shall have the same protections regarding privileged communication and the same rights to the possession and confidentiality of their records as are accorded by law to patients of physicians.

E. Health screening services shall be exempt from the provisions of articles 2 through 5 of this chapter.

F. Any person who conducts health screening services in violation of this section or in violation of any rule or regulation adopted by the director is guilty of a class 2 misdemeanor. In addition, the director may exercise the same powers with respect to health screening services as are provided in section 36-427, subsection B with respect to licensed health care institutions.

§ 36-405.02 Outpatient behavioral health and other related health care services; employees; rules

The department shall allow a person who is employed at a health care institution that provides outpatient behavioral health services, who is not a licensed behavioral health professional and who is at least eighteen years of age to provide outpatient behavioral health or other related health care services pursuant to all applicable department rules. The director shall adopt rules consistent with this section.

§ 36-405.03 Memory care services standards; rules; staff training requirements; definition

A. The director shall establish by rule standards for memory care services for assisted living facilities that are licensed to provide directed care services.

B. The director shall establish by rule minimum training standards for memory care services for staff and contractors who work in an assisted living facility that is licensed to provide directed care services. The training standards shall include a minimum of eight hours of initial memory care services training and four hours of annual continuing education. In addition to the eight hours of initial training, the training standards for assisted living facility managers shall include a minimum of four hours of memory care services training that is specifically for assisted living facility managers. The department shall approve the memory care services training programs, and the training programs shall provide staff and contractors who complete the training a certificate of completion that may be used to work at any assisted living facility that is licensed to provide directed care services. If a staff member or contractor has not worked at an assisted living facility that is licensed to provide directed care services for a period of twelve months, the person is required to complete the initial training within thirty days after the date of hire, rehire or returning to work.

C. An assisted living facility that is licensed to provide directed care services is required to provide to the department during an investigation or compliance survey documentation of staff training as prescribed in subsection B of this section. Failure to provide complete staff training documentation shall be cited as a deficiency.

D. For the purposes of this section, "memory care services" means services that support individuals with dementia and other progressive and neurodegenerative brain disorders, including specialized environmental features, care planning, directed care services, medication administration services, specialized accommodations, activity programming or other services required by the department in rule.

§ 36-406 Powers and duties of the department

In addition to its other powers and duties:

1. The department shall:

(a) Administer and enforce this chapter and the rules, regulations and standards adopted pursuant thereto.

(b) Review, and may approve, plans and specifications for construction or modification or additions to health care institutions regulated by this chapter.

(c) Have access to books, records, accounts and any other information of any health care institution reasonably necessary for the purposes of this chapter.

(d) Require as a condition of licensure that nursing care institutions and assisted living facilities make vaccinations for influenza and pneumonia available to residents on site on a yearly basis. The department shall prescribe the manner by which the institutions and facilities shall document compliance with this subdivision, including documenting residents who refuse to be immunized. The department shall not impose a violation on a licensee for not making a vaccination available if there is a shortage of that vaccination in this state as determined by the director.

2. The department may:

(a) Make or cause to be made inspections consistent with standard medical practice of every part of the premises of health care institutions which are subject to the provisions of this chapter as well as those which apply for or hold a license required by this chapter.

(b) Make studies and investigations of conditions and problems in health care institutions, or any class or subclass thereof, as they relate to compliance with this chapter and rules, regulations and standards adopted pursuant thereto.

(c) Develop manuals and guides relating to any of the several aspects of physical facilities and operations of health care institutions or any class or subclass thereof for distribution to the governing authorities of health care institutions and to the general public.

§ 36-407 Prohibited acts; required acts

A. A person shall not establish, conduct or maintain in this state a health care institution or any class or subclass of health care institution unless that person holds a current and valid license issued by the department specifying the class or subclass of health care institution the person is establishing, conducting or maintaining. The license is valid only for the establishment, operation and maintenance of the class or subclass of health care institution, the type of services and, except for emergency admissions as prescribed by the director by rule, the licensed capacity specified by the license.

B. The licensee shall not imply by advertising, directory listing or otherwise that the licensee is authorized to perform services more specialized or of a higher degree of care than is authorized by this chapter and the underlying rules for the particular class or subclass of health care institution within which the licensee is licensed.

C. The licensee may not transfer or assign the license. A license is valid only for the premises occupied by the institution at the time of its issuance.

D. The licensee shall not personally or through an agent offer or imply an offer of rebate or fee splitting to any person regulated by title 32 or chapter 17 of this title.

E. The licensee shall submit an itemized statement of charges to each patient.

F. A health care institution shall refer a patient who is discharged after receiving emergency services for a drug-related overdose to a behavioral health services provider.

§ 36-407.01 Hospitals; visitation; religious purposes

A hospital shall provide notice of its visitation policy to a patient or the patient's representative. If a hospital's visitation policy allows in-person visitation of any kind and if authorized by the patient or the patient's representative, the hospital must facilitate the ability of clergy to visit the patient in person for religious purposes. Clergy must comply with reasonable health and safety precautions imposed by hospitals in connection with in-person visitation. If a hospital's visitation policy does not allow in-person visitation of any kind at all times or temporarily for health and safety reasons, the hospital must facilitate a virtual clergy visit using communication technology.

§ 36-407.02 Health care institutions; clergy visitation; health and safety precautions; immunity; civil action; definitions

A. If a health care institution's visitation policy allows in-person visitation of any kind, the health care institution must allow a clergy member to visit a resident who requests an in-person visit or consents to be visited in person for religious purposes by the clergy member, including during a declared state of emergency. If a resident is unable, due to dementia or a similar cognitive impairment, to request an in-person visit or to consent to be visited in person by a clergy member for religious purposes, the request or consent must be made or given by the resident's legal representative.

B. Notwithstanding any other provision in this chapter, when a resident's death is imminent, a health care institution must allow a clergy member to visit the resident in person for religious purposes if either of the following applies:

1. The resident requests or consents to be visited by the clergy member.

2. The resident's legal representative requests that the resident be visited by the clergy member.

C. A health care institution may require clergy to comply with reasonable health and safety precautions, including undergoing health screenings and wearing personal protective equipment, that are imposed by the health care institution in connection with in-person visitation for preventing the spread of communicable diseases. If such a requirement would substantially burden the clergy member's free exercise of religion while carrying out the religious purpose for which the clergy member is visiting while with the resident in the resident's room or visiting area designated by the health care institution, the health care institution may require compliance with such precautions only if compliance in that instance furthers a compelling interest and the health care institution imposes the least restrictive burden on the clergy member's exercise of religion. Notwithstanding any other provision of this chapter, a health care institution may restrict visits of a clergy member who fails a health screening measure or tests positive for a communicable disease.

D. A health care institution and its employees and contractors are not liable to a person visiting a resident or to a resident of the health care institution for civil damages for injury or death due to actual or alleged exposure to a communicable disease resulting from or related to a visitation in compliance with this section unless it is proven by clear and convincing evidence that the health care institution failed to substantially comply with the health care institution's applicable health and safety precautions. The immunity prescribed in this subsection does not apply to any act or omission unless there is clear and convincing evidence that the act or omission constitutes gross negligence or wilful or wanton misconduct.

E. A person or religious organization may bring a civil action against a health care institution alleging a violation of this section. Any person that successfully asserts a claim or defense under this section may recover declaratory relief, injunctive relief, reasonable attorney fees and costs and any other appropriate relief.

F. For the purposes of this section:

1. "Health care institution" has the same meaning prescribed in section 36-420.

2. "Resident" means a person living at or receiving inpatient services from a health care institution.

§ 36-407.03 Hospitals; visitation policy; exceptions

A. A hospital shall develop a visitation policy that allows a patient to have daily in-person visitation by a designated visitor of the patient's choice, which may include the patient's spouse or one parent or child of the patient. A hospital's policies regarding visitation shall ensure that the patient and the patient's visitors may have physical contact, especially during end-of-life visitation, unless a physician determines based on the patient's condition that the visitation does not meet health and safety standards or is reasonably likely to harm the patient. If a physician denies visitation with a patient pursuant to this section, the patient or the patient's representative, which may include the patient's spouse, parent or child, may request a meeting, as provided by the visitation policy, with the physician and the hospital's chief medical officer, chief of staff or chief executive officer to receive a review and explanation within twenty-four hours of the physician's decision to deny visitation. If the designated visitor's request to visit is denied or not resolved at the meeting, the visitor may file a complaint with the department. All visitors must comply with reasonable health and safety precautions imposed by the hospital in connection with the visit.

B. This section does not apply to the Arizona state hospital, any other licensed facility under the jurisdiction of the superintendent of the Arizona state hospital or chapter 5 of this title.

§ 36-408 Required reports from health care institutions

The department of health services shall not require any reports from health care institutions to be filed more frequently than annually unless such filings are otherwise required by state or federal law or result from necessary processing of applications or requests filed by such institutions.

§ 36-409 Certification, licensure and monitoring of long-term care facilities, facilities and services

A. The department shall perform all necessary functions, including licensing, certification or monitoring, to implement federally approved standards for institutions, facilities, agencies or persons providing services pursuant to chapter 29, article 2 of this title. These functions shall only be performed pursuant to an interagency agreement which the director of the Arizona health care cost containment system administration shall enter into with the department. A skilled nursing facility, hospice or home health agency shall not be certified pursuant to this section unless it is also certified under title XVIII of the social security act.

B. Nursing care institutions and hospices shall make financial records available to the Arizona health care cost containment system administration for purposes of certified financial audits conducted pursuant to chapter 29, article 2 of this title.

§ 36-409.01 Joint training sessions; survey process; compliance

A. The department shall establish an annual joint training session between supervisors, compliance officers and investigators who perform duties related to section 36-409 and each of the following:

1. Skilled nursing providers.

2. Assisted living providers.

B. The purpose of the joint training sessions is to report changes to the survey process and to educate both the compliance officers and the skilled nursing and assisted living providers on how compliance with the changes will be determined. The joint training sessions may be conducted in person or remotely.

C. The department may receive and spend gifts, grants or donations to pay for the joint training sessions required by subsection A of this section.

§ 36-410 County standards and guidelines; delegation

A. The director shall provide counties with nonbinding guidelines for their use in establishing contract standards for adult foster care providers that do not provide services pursuant to chapter 29, article 2 of this title. These nonbinding guidelines shall include standards for the self-administration of drugs that the foster care provider shall follow in conjunction with home health services and outpatient services.

B. The director shall adopt rules that the counties or the Arizona health care cost containment system administration shall use in prescribing minimum standards for adult foster care providers that provide services pursuant to chapter 29, article 2 of this title. The director shall conform these rules with federally approved applicable standards for adult foster care homes. The director shall delegate the authority to enforce these rules to each county that accepts this delegation or to the Arizona health care cost containment system administration. The department shall monitor an adult foster care program to ensure compliance with department rules. If a county or the Arizona health care cost containment system administration does not accept the delegation, the department shall certify and monitor an adult foster care home pursuant to section 36-409 if that home seeks to participate in the Arizona long-term care system pursuant to chapter 29, article 2 of this title.

§ 36-411 Residential care institutions; nursing care institutions; home health agencies; fingerprinting requirements; exemptions; definitions

A. Except as provided in subsection F of this section, as a condition of licensure or continued licensure of a residential care institution, a nursing care institution or a home health agency and as a condition of employment in a residential care institution, a nursing care institution or a home health agency, employees and owners of residential care institutions, nursing care institutions or home health agencies, contracted persons of residential care institutions, nursing care institutions or home health agencies or volunteers of residential care institutions, nursing care institutions or home health agencies who provide medical services, nursing services, behavioral health services, health-related services, home health services or direct supportive services and who have not been subject to the fingerprinting requirements of a health professional's regulatory board pursuant to title 32 shall have a valid fingerprint clearance card that is issued pursuant to title 41, chapter 12, article 3.1 or shall apply for a fingerprint clearance card within twenty working days after employment or beginning volunteer work or contracted work.

B. A health professional who has complied with the fingerprinting requirements of the health professional's regulatory board as a condition of licensure or certification pursuant to title 32 is not required to submit an additional set of fingerprints to the department of public safety pursuant to this section.

C. Each residential care institution, nursing care institution and home health agency shall make documented, good faith efforts to:

1. Contact previous employers to obtain information or recommendations that may be relevant to a person's fitness to work in a residential care institution, nursing care institution or home health agency.

2. Verify the current status of a person's fingerprint clearance card.

3. Beginning January 1, 2025, verify that a potential employee is not on the adult protective services registry pursuant to section 46-459. If a potential employee is found to be on the adult protective services registry, the residential care institution, nursing care institution or home health agency may not hire the potential employee.

4. On or before March 31, 2025, verify that each employee is not on the adult protective services registry pursuant to section 46-459. If an employee is found to be on the adult protective services registry, the residential care institution, nursing care institution or home health agency shall take action to terminate the employment of that employee.

5. Beginning March 31, 2025, annually reverify that each employee is not on the adult protective services registry pursuant to section 46-459.

D. An employee, an owner, a contracted person or a volunteer or a facility on behalf of the employee, the owner, the contracted person or the volunteer shall submit a completed application that is provided by the department of public safety within twenty days after the date the person begins work or volunteer service.

E. Except as provided in subsection F of this section, a residential care institution, nursing care institution or home health agency shall not allow an employee to continue employment or a volunteer or contracted person to continue to provide medical services, nursing services, behavioral health services, health-related services, home health services or direct supportive services if the person has been denied a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1, has been denied approval pursuant to this section before May 7, 2001 or has had a fingerprint clearance card suspended or revoked.

F. An employee, volunteer or contractor of a residential care institution, nursing care institution or home health agency who is eligible pursuant to section 41-1758.07, subsection C to petition the board of fingerprinting for a good cause exception and who provides documentation of having applied for a good cause exception pursuant to section 41-619.55 but who has not yet received a decision is exempt from the fingerprinting requirements of this section if the person provides medical services, nursing services, behavioral health services, health-related services, home health services or direct supportive services to residents or patients while under the direct visual supervision of an owner or employee who has a valid fingerprint clearance card.

G. If a person's employment record contains a six-month or longer time frame during which the person was not employed by any employer, a completed application with a new set of fingerprints shall be submitted to the department of public safety.

H. For the purposes of this section:

1. "Direct supportive services":

(a) Means services other than home health services that provide direct individual care and that are not provided in a common area of a health care institution, including:

(i) Assistance with ambulating, bathing, toileting, grooming, eating and getting in and out of a bed or chair.

(ii) Assistance with self-administration of medication.

(iii) Janitorial, maintenance, housekeeping or other services provided in a resident's room.

(iv) Transportation services, including van services.

(b) Does not include services provided by persons contracted directly by a resident or the resident's family in a health care institution.

2. "Direct visual supervision" means continuous visual oversight of the supervised person that does not require the supervisor to be in a superior organizational role to the person being supervised.

3. "Home health services" has the same meaning prescribed in section 36-151.

§ 36-411.01 Adult residential care institutions; recidivism reduction services; rules

A. An adult residential care institution subclass that is authorized to provide recidivism reduction services may employ recidivism reduction staff who are exempt from the requirements of section 36-411, subsection E to assist in the delivery of recidivism reduction services.

B. An applicant for employment is exempt from the requirements of section 36-411, subsection E if the applicant does both of the following:

1. Successfully completes treatment for recidivism reduction as prescribed by rule.

2. Passes a background and screening evaluation conducted by the adult residential care institution as prescribed by rule that demonstrates that the individual is not a threat to the health or safety of staff or residents of the adult residential care institution.

C. As prescribed by rule, only adult residents of an adult residential care institution who have been referred to receive recidivism reduction services may receive services from recidivism reduction staff.

D. An adult resident of an adult residential care institution may be referred for recidivism reduction services if the adult resident is one or more of the following:

1. Charged with or convicted of one or more criminal offenses.

2. Referred by a court, prosecutor or probation officer.

3. Approved for placement at the adult residential care institution by a health care professional who is licensed pursuant to title 32 and whose scope of practice includes recidivism reduction services.

§ 36-412 Nursing care institutions; employment

The department shall not adopt any rule that prohibits an administrator of a nursing care institution from employing a person who is sixteen years of age or older, who provides direct care to residents and who otherwise meets the requirements of section 32-1645.

§ 36-413 Nutrition and feeding assistants; training programs; regulation; civil penalty; definition

A. The department may adopt rules to prescribe minimum standards for training programs for nutrition and feeding assistants in licensed skilled nursing facilities, including instructor qualifications, and may grant, deny, suspend and revoke approval of any training program that violates these standards. These standards must include:

1. Screening requirements.

2. Initial qualifications.

3. Continuing education requirements.

4. Testing requirements to assure competency.

5. Supervision requirements.

6. Requirements for additional training based on patient needs.

7. Maintenance of records.

8. Special feeding requirements based on level of care.

B. Pursuant to section 36-431.01, the department may impose a civil penalty on a training program that violates standards adopted by the department.

C. If the department adopts standards for training programs pursuant to subsection A of this section, the department, as part of its routine inspection of a health care facility that provides a training program, shall determine the facility's compliance with these standards.

D. For the purposes of this section, "nutrition and feeding assistant" has the same meaning as paid feeding assistant as defined in 42 Code of Federal Regulations part 483 and section 488.301.

§ 36-414 Health services licensing fund; exemption

A. The health services licensing fund is established consisting of monies deposited pursuant to sections 30-654, 32-1308, 32-2805, 36-405, 36-765.05, 36-766.06, 36-851.01, 36-882, 36-897.01, 36-1903, 36-2063 and 36-4204. The department of health services shall administer the fund.

B. Monies in the fund are subject to legislative appropriation.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-415 Breast density mammography results; notification

A. Beginning October 1, 2014, if a patient is categorized by a health care institution or health care facility that performs mammography examinations as having heterogeneously dense breasts or extremely dense breasts based on the breast imaging reporting and data system established by the American college of radiology, the institution or facility must include in the summary of the mammography report that is sent to the patient the following notice:

Your mammogram indicates that you have dense breast tissue. Dense breast tissue is common and is found in fifty per cent of women. However, dense breast tissue can make it more difficult to detect cancers in the breast by mammography and may also be associated with an increased risk of breast cancer. This information is being provided to raise your awareness and to encourage you to discuss with your health care providers your dense breast tissue and other breast cancer risk factors. Together, you and your physician can decide if additional screening options are right for you. A report of your results was sent to your physician.

B. This section does not:

1. Create or impose liability on a health care institution or health care facility for failing to comply with the requirements of this section before October 1, 2014.

2. Create a duty of care or other legal obligation beyond the duty to provide notice as set forth in subsection A of this section.

3. Require a notice that is inconsistent with the federal mammography quality standards act or any regulations promulgated pursuant to that act.

§ 36-416 Registered dietitians; qualified nutrition professionals; hospital orders; definitions

A. A hospital that is licensed pursuant to section 36-422 may allow a registered dietitian or other qualified nutrition professional to order diets, enteral feeding, nutritional supplementation or parenteral nutrition if authorized by medical staff pursuant to 42 Code of Federal Regulations section 482.28(b) and if both:

1. The hospital's written policies and procedures allow registered dietitians or other qualified nutrition professionals to issue such orders.

2. The hospital has written policies and procedures that address the hospital's response to adverse events, if any, that arise as a result of orders issued by a registered dietitian or other qualified nutrition professional.

B. For the purposes of this section:

1. "Qualified nutrition professional" means a nutrition professional who is deemed qualified by a hospital for which the person works.

2. "Registered dietitian" means a person who meets the qualifications of the credentialing agency for the American academy of nutrition and dietetics.

§ 36-417 Use of compliance surveys; advertisement; requirements

A. The results of a department state compliance survey of a nursing care institution, assisted living center or assisted living home or a federal certification survey of a skilled nursing facility may not be used in an advertisement, unless the advertisement includes all of the following:

1. The date the survey was conducted.

2. A statement that the department conducts a survey of all licensed long-term care facilities and assisted living facilities at least once every fifteen months.

3. If a finding or deficiency cited in the statement of deficiencies has been substantially corrected, a statement that the finding or deficiency has been substantially corrected and the date the finding or deficiency was substantially corrected.

4. The number of findings and deficiencies cited in the statement of deficiencies on the basis of the survey.

5. The average number of findings and deficiencies cited in a statement of deficiencies for a nursing care institution or assisted living center or assisted living home during the same calendar year as the survey used in the advertisement.

6. A statement that the advertisement is neither authorized nor endorsed by the department or any other government agency.

B. This section does not prohibit the results of a survey, a statement of deficiencies or the findings and deficiencies cited in that statement on the basis of the survey under this section from being used in a criminal investigation or prosecution.

§ 36-418 Behavioral health residential facilities; reporting requirement

A licensed behavioral health residential facility that provides services to children, that contracts with the federal government and that receives only federal monies shall report to the department of health services within twenty-four hours after an actual or alleged event or situation that creates a significant risk of substantial or serious harm to the physical or mental health, safety or well-being of a resident at the facility or while the resident is in the custody of the facility and that requires notification to local law enforcement, the department of child safety or the United States department of health and human services. The licensee shall inform the department of health services regarding any corrective action plan required by the United States department of health and human services.

§ 36-418.01 Behavioral health facilities; dependent children; placement; report; definition

A. If a foster child who is in the care, custody and control of the department of child safety is approved for placement in a behavioral health facility licensed pursuant to this chapter, the behavioral health facility may not deny or refuse placement of the foster child if, subject to the availability of a bed or space in the behavioral health facility, all of the following apply:

1. The foster child's behavioral needs are within the scope of services.

2. The foster child's placement in the behavioral health facility is clinically appropriate.

3. The foster child's placement in the behavioral health facility does not disrupt the environment of the behavioral health facility, including the behaviors and needs of other residents of the behavioral health facility.

4. The foster child's primary condition is a behavioral health condition.

B. If a behavioral health facility denies or refuses placement of the foster child pursuant to subsection A of this section, the behavioral health facility shall do both of the following:

1. Document the specific clinical reason for denying or refusing placement of the foster child.

2. Within twenty-four hours after denying or refusing placement of the foster child, notify the placement agency that the behavioral health facility's denial or refusal is necessary.

C. When possible, a behavioral health facility that denies or refuses placement of a foster child shall work collaboratively with the placement agency to explore alternative placements or additional supports for the foster child that may facilitate a successful placement of the foster child. The behavioral health facility shall document efforts made with the placement facility for successful placement of the foster child.

D. A behavioral health facility may not deny the placement of a foster child who requires medication management for a chronic physical health condition.

E. For the purposes of this section, "placement agency" means the department of child safety or any other agency that is authorized to approve a foster child for placement in a behavioral health facility or program.

§ 36-419 Do-not-resuscitate orders; minors; parental communication; definitions

A. For an unemancipated minor who is not under juvenile court jurisdiction pursuant to section 8-202, a provider may not implement a do-not-resuscitate order without communicating with at least one of the minor's parents or the minor's legal guardian. The communication must include a discussion of both of the following:

1. The minor's care plan, including implementing a do-not-resuscitate order and what the do-not-resuscitate order means for the minor.

2. The rights provided under subsections E and G of this section.

B. The communication with the minor's parents or legal guardian pursuant to subsection A of this section shall be made with a witness present, other than the parents or legal guardian, who is willing to confirm that this communication took place. The provider shall immediately document and record the communication in the minor's medical record indicating whom the communication was with, who witnessed the communication and the date and time of the communication. The provider shall ask the minor's parents or legal guardian to sign a written acknowledgement of this communication.

C. The requirements of subsections A and B of this section do not apply if the provider makes a reasonably diligent and documented effort to contact the minor's parents or legal guardian without success for at least forty-eight hours. If a do-not-resuscitate order is entered for the minor, the reason for that order shall be documented in the minor's medical record.

D. This section does not require a provider to initially provide or continue resuscitative measures on a minor if the resuscitative measures would be medically inappropriate because providing the treatment would, in the provider's reasonable medical judgment, either:

1. Create a greater risk of causing or hastening the minor's death.

2. Be potentially harmful or cause unnecessary pain, suffering or injury to the minor because there is no further benefit to the minor in performing resuscitative measures.

E. At any point during the process described in subsections A and B of this section, a parent or legal guardian has the right to request that the minor be transferred to another facility. If the parent or legal guardian requests a transfer, the provider shall provide reasonable time for the parent or legal guardian to find another provider that will accept the minor before implementing a do-not-resuscitate order. The provider shall provide the minor's medical records to any accredited facility that requires the medical records to determine whether the facility is willing to care for the minor. If an accredited facility is willing to accept the minor, the provider shall make reasonable efforts to facilitate the transfer.

F. A parent or guardian may petition a superior court in the county in which the minor resides or in which the minor is receiving treatment for an order enjoining a violation or threatened violation of this section or to resolve a conflict between the parents. On receiving a petition, the superior court shall issue an order fixing the date, time and place of a hearing on the petition and order that notice of the hearing be given to the interested parties. A preliminary hearing may be held without notice if the court determines that holding that hearing without notice is necessary to prevent imminent danger to the minor's life. In the court's discretion, a hearing may be conducted in a courtroom, in a health care facility or at some other suitable place. A do-not-resuscitate order may not be implemented pending the final determination of the proceedings, including any appeals.

G. On request of a patient or resident or a prospective patient or resident, a provider shall disclose in writing any policies relating to a patient or resident or the services a patient or resident may receive involving resuscitation or life-sustaining measures, including any policies related to treatments deemed nonbeneficial, ineffective, futile or inappropriate. This subsection does not require a provider to have a written policy relating to or involving resuscitation, life-sustaining measures or nonbeneficial treatment for unemancipated minor patients or adult patients or residents.

H. For the purposes of this section:

1. "Do-not-resuscitate order":

(a) Means an order in a patient's medical record that reflects a decision to forgo cardiopulmonary resuscitative measures.

(b) Does not include withholding other medical interventions deemed necessary to provide a patient with comfort care or to alleviate pain.

2. "Provider" means a health care facility, a nursing home, a physician who is licensed pursuant to title 32, chapter 13 or 17 or a nurse who is licensed pursuant to title 32, chapter 15.

§ 36-420 Health care institutions; cardiopulmonary resuscitation; first aid; immunity; falls; definition

A. Each health care institution and the health care institution's respective employees have an affirmative duty of care for their residents as prescribed in subsection B of this section.

B. Each health care institution:

1. Shall initiate cardiopulmonary resuscitation in accordance with its certification training for cardiopulmonary resuscitation before the arrival of emergency medical services, to a resident who is nonresponsive or has a cessation of normal respiration. The cardiopulmonary resuscitation shall be in accordance with that resident's advance directives, if known. Staff who are certified in cardiopulmonary resuscitation shall be available at all times.

2. Shall provide appropriate first aid in accordance with its certification training for first aid before the arrival of emergency medical services to a resident who is in distress and to a noninjured resident who has fallen, appears to be uninjured and is unable to reasonably recover independently. The first aid shall be in accordance with the resident's advance directives, if known. Staff who are certified in first aid shall be available at all times.

3. May not have, establish or implement policies that prevent employees from providing appropriate cardiopulmonary resuscitation and first aid.

C. A health care institution that renders cardiopulmonary resuscitation or first aid as described in subsection B of this section is not liable for any civil damages as the result of any act or omission by the person rendering such care. This liability exclusion applies only if the cardiopulmonary resuscitation or first aid is rendered in good faith and consistent with cardiopulmonary resuscitation or first aid certification standards, as applicable. This liability exclusion does not apply to a person who acts with gross negligence while rendering care.

D. A person who in good faith renders first aid to a person who has fallen is not liable for any civil damages as the result of any act or omission by the person rendering the first aid to the fallen person, unless the person acted with gross negligence while rendering the first aid, if the person rendering aid acted under any of the following circumstances:

1. At the direction of the emergency dispatch operator.

2. To prevent further imminent and serious injury to the fallen person.

3. The fallen person appeared to be uninjured, stated that the person was not injured and requested assistance.

E. The department shall enforce this section consistent with the centers for medicare and medicaid services regulations for health care institutions that are subject to those regulations.

F. For the purposes of this section, "health care institution" means an assisted living center, an assisted living facility, an assisted living home, hospice, a nursing care institution or a residential care institution that is licensed pursuant to this chapter.

§ 36-420.01 Health care institutions; fall prevention and fall recovery; training programs; definition

A. Each health care institution shall develop and administer a training program for all staff regarding fall prevention and fall recovery. The training program shall include initial training and continued competency training in fall prevention and fall recovery. A health care institution may use information and training materials from the department's Arizona falls prevention coalition in developing the training program.

B. For the purposes of this section, "health care institution" has the same meaning prescribed in section 36-420.

§ 36-420.02 Additional charges for medical or forensic interview or examination; prohibition

A. A health care institution may not charge an intake, consultation, facility or other fee to a patient as part of a medical or forensic interview or examination for which the county is required to pay pursuant to section 13-1414.

B. A health care institution or health care provider may not issue, either directly or through its billing company, any additional balance bill to a patient relating to a medical or forensic interview or examination for which the county is required to pay pursuant to section 13-1414.

§ 36-420.03 Health care employers; workplace violence prevention plan; investigation; reporting; nondiscrimination; definitions

A. Not later than July 1, 2023, health care employers shall develop, implement and maintain a written workplace violence prevention plan that does all of the following:

1. Includes components that are specifically tailored to the conditions and hazards of the health care employer's sites and patient-specific risk factors.

2. Identifies the individual who is responsible for implementing and overseeing the plan.

3. Requires the conspicuous posting of signs in public areas throughout the health care employer's sites, including all emergency facilities, that are at least twelve inches by twelve inches in size and that provide notice that assault on a health care worker may be prosecuted as a felony.

4. Includes reporting, incident response and postincident investigation procedures, including procedures:

(a) For health care workers to report workplace violence risks, hazards and incidents.

(b) For health care employers to respond to reports of workplace violence.

(c) For health care employers to perform a postincident investigation and debriefing of all reported incidents of workplace violence with the participation of health care workers.

5. Requires health care employers to provide information to health care workers about a worker's ability to report any assault to law enforcement and, on request, to assist the worker in reporting the assault.

B. Each health care employer shall make its workplace violence prevention plan available at all times to all health care workers and contractors who provide patient care.

C. As soon as practicable after a workplace violence incident is reported to the health care employer, the health care employer shall investigate the incident and shall do all of the following:

1. Review the circumstances of the incident.

2. Solicit input from involved health care workers and supervisors about the cause of the incident and whether further corrective measures could have prevented the incident.

3. Document the findings, recommendations and corrective measures taken, if applicable, for each investigation conducted.

D. Each health care employer shall provide training and education to its health care workers who may be exposed to workplace violence hazards and risks.

E. Each health care employer shall maintain:

1. Records that relate to each of the employer's workplace violence prevention plans, including identifying, evaluating and correcting hazards and risks and training procedures.

2. An incident log for recording all reported workplace violence incidents and records of all incident investigations. The log shall include the date, time and location of the incident, the name of every person who is involved in the incident, a description of the incident and the nature and extent of injuries to health care workers.

F. The health care employer shall annually evaluate the implementation and effectiveness of the workplace violence prevention plan, including a review of the violent incident log and compliance with any training. The annual evaluation shall be documented.

G. The health care employer shall adopt a policy that prohibits any person from discriminating or retaliating against any health care worker for either:

1. Reporting to or seeking assistance or intervention from the employer, law enforcement, local emergency services or a government agency or participating in an incident investigation.

2. Reasonably acting in self defense or defense of others in response to an imminent threat of physical harm.

H. A health care employer may not discriminate or retaliate against a health care worker for either:

1. Reporting to or seeking assistance or intervention from the employer, law enforcement, local emergency services or a government agency or for exercising any other rights under this section.

2. Reasonably acting in self defense or defense of others in response to an imminent threat of physical harm.

I. This section does not affect the legal obligations of a health care employer and health care worker pursuant to the protection of patients' rights.

J. This section does not apply to the Arizona state hospital or any other licensed facility that is under the jurisdiction of the superintendent of the Arizona state hospital.

K. For the purposes of this section:

1. "Health care employer" means a health care institution that is licensed pursuant to this title as a hospital, freestanding emergency services facility or urgent care facility and that has more than fifty employees.

2. "Health care worker" means an employee of a health care employer or a person who has a contract with a health care employer to provide health care or related services.

§ 36-420.04 Emergency responders; patient information; hospitals; discharge planning; patient screenings; discharge document

A. An assisted living center or assisted living home that contacts an emergency responder on behalf of a resident shall provide to the emergency responder a written document that includes all of the following:

1. The reason or reasons the emergency responder was requested on behalf of the resident.

2. Whether the resident receives medication services and, if the resident has provided this information to the assisted living center or assisted living home, a list of all the resident's prescription and over-the-counter medications, their dosages and how frequently they are administered.

3. The name, address and telephone number of the resident's current pharmacy.

4. A list of any known allergies to any medications, additives, preservatives or materials like latex or adhesive.

5. The name and contact information for the resident's primary care physician and power of attorney or authorized representative.

6. Basic information about the resident's physical and mental conditions and basic medical history, such as having diabetes or a pacemaker or experiencing frequent falls or cardiovascular and cerebrovascular events, as well as dates of recent episodes, if known.

7. The point-of-contact information for the assisted living center or assisted living home, including the telephone number, if available, cell phone number and email address. A point of contact must be available to respond to questions regarding the information provided twenty-four hours a day, seven days a week.

8. A copy of the resident's health insurance portability and accountability act release authorizing a receiving hospital to communicate with the assisted living center or assisted living home to plan for the resident's discharge. This paragraph does not preclude a resident from revoking the resident's health insurance portability and accountability act release authorization.

9. A copy of the resident's advance directives, if any, on file at the assisted living center or assisted living home. This paragraph does not preclude a resident from revoking or modifying the resident's advance directives.

B. The assisted living center or assisted living home must notify the resident's authorized representative that the resident was transported to a hospital and provide the name and location of the hospital.

C. Each assisted living center and assisted living home must maintain a standardized form for each resident that includes the information prescribed in subsection A of this section, except for the information prescribed in subsection A, paragraph 1 of this section, which shall be provided at the time the emergency responder is contacted. Each assisted living center and assisted living home shall periodically update this form for each resident as necessary.

D. An assisted living center or assisted living home shall maintain a copy of the document provided to the emergency responder and documentation of the actions required by subsection B of this section for a period of two years after the date of the emergency.

E. If the emergency responder transports the resident to a hospital, the emergency responder shall provide a copy of the written document required by subsection A of this section to the receiving hospital.

F. To protect the health and safety of patients being transferred by a hospital to an assisted living center or assisted living home, a discharging hospital shall coordinate with the health care institution from which the patient has been transferred or the health care institution to which the patient will be discharged and shall provide a written discharge plan for each inpatient. The discharge plan shall:

1. Be prepared by appropriate staff.

2. Include point-of-contact information for the discharging hospital, including a telephone number and, if available, An email address. The hospital's point of contact shall monitor the telephone and, if available, the email address provided and shall promptly respond to any inquiry. For forty-eight hours after discharge, the discharging hospital's designated point of contact must be available to respond to the receiving assisted living center or assisted living home to assist in returning or admitting the patient to the facility and to clarify any needed information in the discharge plan. Hospitals shall have a qualified hospital representative respond to discharge plan questions received from the assisted living center or assisted living home.

3. Document the patient's discharge evaluation and provide an assessment of the patient's medical or health conditions, including:

(a) Any documented pressure injuries or ulcers, the location on the body and the assessed stage level.

(b) Cognitive or physical conditions or impairments.

(c) The patient's weight-bearing status.

(d) Specified dietary requirements, if applicable.

(e) Whether the patient requires continuous medical services or continuous or intermittent nursing services or restraints.

(f) Whether the patient requires specialized medical equipment or home health services and a copy of the hospital's orders for that equipment or those services.

(g) Follow-up health care services and other services recommended for the patient.

4. Include, if applicable, a copy of any prescription that was transmitted to the patient's current pharmacy as designated in subsection A of this section or the medication summary or medication instructions. The copy of the prescription or medication summary or medication instructions shall include the patient's name, medication administration instructions and the signature of the prescriber or a record that the prescription was electronically signed by the prescriber.

5. Document that the hospital notified the receiving assisted living center or assisted living home of any new device orders for the patient.

6. Document that the discharging hospital notified the patient's authorized representative that the patient was discharged and provided the name, location and contact information of the receiving facility.

G. The discharging hospital shall contact the assisted living center or assisted living home from which the patient entered the hospital, after initial inpatient assessment, to discuss an evaluation of the patient's likely postdischarge health care needs. The hospital shall reevaluate and discuss with the assisted living center or assisted living home from which the patient entered the hospital the patient's condition, as appropriate, to identify changes to the patient's condition that may impact the patient's postdischarge health care needs, including recommendations, if any, by the hospital to transfer the patient to a different facility other than the facility from which the patient entered the hospital to address the patient's higher care needs. The discharging hospital shall provide an opportunity for a patient screening before discharge by the assisted living center or assisted living home from which the patient entered the hospital or to which the patient is being referred. The assisted living center or assisted living home shall determine through a screening and a review of or discussion about medical records whether the patient's postdischarge care needs, including additional ordered services, are within the facility's scope of services. After receiving notification from the discharging hospital, the assisted living center or assisted living home shall perform the screening promptly. For on-site screenings, the staff of the assisted living center or assisted living home may be required to follow standard hospital security and identification requirements. If the assisted living center or assisted living home from which the patient entered the hospital can no longer meet the patient's needs, the facility shall provide documentation to the hospital demonstrating the reasons why the facility cannot accept the patient back to the facility.

H. For patients being transferred from a hospital to an assisted living center or assisted living home who have not previously been admitted to the assisted living center or assisted living home, the hospital shall coordinate with the assisted living center or assisted living home to allow time to expeditiously obtain documentation from a physician, registered nurse practitioner, registered nurse or physician assistant coordinating the level of care needed in the assisted living center or assisted living home.

I. For emergency department or observation patients, the hospital shall provide the assisted living center or assisted living home from which the patient entered the hospital with a point of contact, including a telephone number and, if available, an email address. The hospital's point of contact shall monitor the telephone and, if available, the email address provided and promptly respond to any inquiry. For forty-eight hours after discharge, the discharging hospital's designated point of contact must be available to respond to the receiving assisted living center or assisted living home to assist in returning or admitting the patient to the assisted living center or assisted living home and to clarify any needed information in the discharge plan. Hospitals shall have a qualified hospital representative respond to discharge plan questions received from the assisted living center or assisted living home. The hospital shall also provide the patient's assisted living center or assisted living home with any new prescription orders as prescribed in subsection F, paragraph 4 of this section, a record of medications administered and any identified follow-up care services recommended for the patient. The hospital shall provide the additional information outlined in subsection F, paragraph 3 of this section if the hospital determines it is applicable. An assisted living center or assisted living home from which the patient entered the hospital shall readmit the patient if the assisted living center or assisted living home can meet the care needs for the patient.

J. Each hospital shall develop a discharge document that encompasses the information outlined in subsection F of this section for inpatient discharges. The discharge document shall be provided to the assisted living center or assisted living home to which the patient is being discharged.

§ 36-420.05 Legal action or sale; effect on licensure

A. The director may continue to pursue any court, administrative or enforcement action against a licensee even if the health care institution is in the process of being sold or transferred or has closed.

B. The department may deny an application for a health care institution license if either:

1. The applicant, the licensee or a controlling person has a health care institution license that is in an enforcement action or court action related to the health and safety of the residents or patients.

2. The department has determined for reasons other than those specified in paragraph 1 of this subsection that the issuance of a new license is likely to jeopardize resident or patient safety.

C. The department may deny the approval of a change in ownership of a currently licensed health care institution if the department determines that the transfer of ownership, whether involving a direct owner or indirect owner, may jeopardize patient safety.

Article 2 License Provisions

§ 36-421 Construction or modification of a health care institution

A. A license application for a health care institution shall include, on a form provided by the department, a notarized attestation from an architect registered pursuant to title 32, chapter 1 that verifies the architectural plans and specifications meet or exceed standards adopted by the department. These plans and specifications shall meet the minimum standards for licensure within the class or subclass of health care institution for which it is intended. The application shall include the name and address of each owner and lessee of any agricultural land that is regulated pursuant to section 3-365.

B. Construction or modification of a licensed health care institution shall meet the minimum standards for licensure within the class or subclass of health care institution for which it is intended.

C. An applicant shall comply with all state statutes and rules and local codes and ordinances required for the health care institution's construction.

D. A health care institution or its facility shall not be licensed if it is located on property that is less than four hundred feet from agricultural land that is regulated pursuant to section 3-365, except that the owner of the agricultural land may agree to comply with the buffer zone requirements of section 3-365. If the owner agrees in writing to comply with the buffer zone requirements and records the agreement in the office of the county recorder as a restrictive covenant running with the title to the land, the health care institution or facility may be licensed and located within the affected buffer zone. The agreement may include any stipulations regarding the health care institution or facility, including conditions for future expansion of the health care institution or facility and changes in the operational status of the health care institution or facility that will result in a breach of the agreement. This subsection does not apply to the issuance of a license for a health care institution located in the same location for which a health care institution license was previously issued.

E. Notwithstanding any law to the contrary, a health care institution that was licensed as a level 1 psychiatric acute behavioral health facility-inpatient facility as of January 1, 2012 and that is not certified under title XIX of the social security act shall be licensed as a hospital and is not required to comply with the physical plant standards for a general hospital, rural general hospital or special hospital prescribed by the department.

F. An adult behavioral health therapeutic home is not required to comply with the building codes or zoning standards for a health care institution prescribed by the department.

G. The Arizona pioneers' home is not required to comply with subsection A of this section and the physical plant standards for a health care institution prescribed by the department.

H. A nursing-supported group home is not required to comply with the zoning standards for a health care institution prescribed by the department.

I. For the purposes of this section, health care institution does not include a home health agency or a hospice service agency.

§ 36-422 Application for license; notification of proposed change in status; joint licenses; definitions

A. A person who wishes to apply for a license to operate a health care institution pursuant to this chapter shall submit to the department all of the following:

1. An application on a written or electronic form that is prescribed, prepared and furnished by the department and that contains all of the following:

(a) The name and location of the health care institution.

(b) Whether the health care institution is to be operated as a proprietary or nonproprietary institution.

(c) The name of the governing authority. The applicant shall be the governing authority having the operative ownership of, or the governmental agency charged with the administration of, the health care institution sought to be licensed. If the applicant is a partnership that is not a limited partnership, the partners shall apply jointly, and the partners are jointly the governing authority for purposes of this article.

(d) The name and business or residential address of each controlling person and an affirmation that none of the controlling persons has been denied a license or certificate by a health profession regulatory board pursuant to title 32 or by a state agency pursuant to chapter 6, article 7 or chapter 17 of this title or a license to operate a health care institution in this state or another state or has had a license or certificate issued by a health profession regulatory board pursuant to title 32 or issued by a state agency pursuant to chapter 6, article 7 or chapter 17 of this title or a license to operate a health care institution revoked. If a controlling person has been denied a license or certificate by a health profession regulatory board pursuant to title 32 or by a state agency pursuant to chapter 6, article 7 or chapter 17 of this title or a license to operate a health care institution in this state or another state or has had a health care professional license or a license to operate a health care institution revoked, the controlling person shall include in the application a comprehensive description of the circumstances for the denial or the revocation.

(e) The class or subclass of health care institution to be established or operated.

(f) The types and extent of the health care services to be provided, including emergency services, community health services and services to indigent patients.

(g) The name and qualifications of the chief administrative officer implementing direction in that specific health care institution.

(h) Other pertinent information required by the department for the proper administration of this chapter and department rules.

2. The attestation required by section 36-421, subsection A.

3. The applicable application fee.

B. An application submitted pursuant to this section shall contain the written or electronic signature of:

1. If the applicant is an individual, the owner of the health care institution.

2. If the applicant is a partnership, limited liability company or corporation, two of the officers of the corporation or managing members of the partnership or limited liability company or the sole member of the limited liability company if it has only one member.

3. If the applicant is a governmental unit, the head of the governmental unit.

C. An application for licensure shall be submitted at least sixty but not more than one hundred twenty days before the anticipated date of operation. An application for a substantial compliance survey submitted pursuant to section 36-425, subsection G shall be submitted at least thirty days before the date on which the substantial compliance survey is requested.

D. If a current licensee intends to terminate the operation of a licensed health care institution or if a change of ownership is planned, the current licensee shall notify the director in writing at least thirty days before the termination of operation or change in ownership is to take place. The current licensee is responsible for preventing any interruption of services required to sustain the life, health and safety of the patients or residents. A new owner shall not begin operating the health care institution until the director issues a license to the new owner.

E. A licensed health care institution for which operations have not been terminated for more than thirty days may be relicensed pursuant to the codes and standards for architectural plans and specifications that were applicable under its most recent license.

F. If a person operates a hospital in a county with a population of more than five hundred thousand persons in a setting that includes satellite facilities of the hospital that are located separately from the main hospital building, the department at the request of the applicant or licensee shall issue a single group license to the hospital and its designated satellite facilities located within one-half mile of the main hospital building if all of the facilities meet or exceed department licensure requirements for the designated facilities. At the request of the applicant or licensee, the department shall also issue a single group license that includes the hospital and its designated satellite facilities that are located farther than one-half mile from the main hospital building if all of these facilities meet or exceed applicable department licensure requirements. Each facility included under a single group license is subject to the department's licensure requirements that are applicable to that category of facility. Subject to compliance with applicable licensure or accreditation requirements, the department shall reissue individual licenses for the facility of a hospital located in separate buildings from the main hospital building when requested by the hospital. This subsection does not apply to nursing care institutions and residential care institutions. The department is not limited in conducting inspections of an accredited health care institution to ensure that the institution meets department licensure requirements. If a person operates a hospital in a county with a population of five hundred thousand persons or less in a setting that includes satellite facilities of the hospital that are located separately from the main hospital building, the department at the request of the applicant or licensee shall issue a single group license to the hospital and its designated satellite facilities located within thirty-five miles of the main hospital building if all of the facilities meet or exceed department licensure requirements for the designated facilities. At the request of the applicant or licensee, the department shall also issue a single group license that includes the hospital and its designated satellite facilities that are located farther than thirty-five miles from the main hospital building if all of these facilities meet or exceed applicable department licensure requirements.

G. If a county with a population of more than one million persons or a special health care district in a county with a population of more than one million persons operates an accredited hospital that includes the hospital's accredited facilities that are located separately from the main hospital building and the accrediting body's standards as applied to all facilities meet or exceed the department's licensure requirements, the department shall issue a single license to the hospital and its facilities if requested to do so by the hospital. If a hospital complies with applicable licensure or accreditation requirements, the department shall reissue individual licenses for each hospital facility that is located in a separate building from the main hospital building if requested to do so by the hospital. This subsection does not limit the department's duty to inspect a health care institution to determine its compliance with department licensure standards. This subsection does not apply to nursing care institutions and residential care institutions.

H. An applicant or licensee must notify the department within thirty days after any change regarding a controlling person and provide the information and affirmation required pursuant to subsection A, paragraph 1, subdivision (d) of this section.

I. A behavioral health residential facility that provides services to children must notify the department within thirty days after the facility begins contracting exclusively with the federal government, receives only federal monies and does not contract with this state.

J. This section does not limit the application of federal laws and regulations to an applicant or licensee that is certified as a medicare or an Arizona health care cost containment system provider under federal law.

K. Except for an outpatient treatment center that provides dialysis services or abortion procedures or that is exempt from licensure pursuant to section 36-402, subsection A, paragraph 12, a person wishing to begin operating an outpatient treatment center before a licensing inspection is completed shall submit all of the following:

1. The license application required pursuant to this section.

2. All applicable application and license fees.

3. A written request for a temporary license that includes:

(a) The anticipated date of operation.

(b) An attestation signed by the applicant that the applicant and the facility comply with and will continue to comply with the applicable licensing statutes and rules.

L. Within seven days after the department's receipt of the items required in subsection K of this section, but not before the anticipated operation date submitted pursuant to subsection C of this section, the department shall issue a temporary license that includes:

1. The name of the facility.

2. The name of the licensee.

3. The facility's class or subclass.

4. The temporary license's effective date.

5. The location of the licensed premises.

M. A facility may begin operating on the effective date of the temporary license.

N. The director may cease the issuance of temporary licenses at any time if the director believes that public health and safety is endangered.

O. An outpatient treatment center that is exempt from licensure pursuant to section 36-402, subsection A, paragraph 12 is subject to reasonable inspection by the department if the director has reasonable cause to believe that patient harm is or may be occurring at that outpatient treatment center. A substantiated complaint that harm is occurring at an exempt outpatient treatment center is a violation of this chapter against the license of the hospital listed in the notice required by section 36-402, subsection A, paragraph 12.

P. Each hospital that is licensed pursuant to this chapter shall provide to and maintain with the department a current list of exempt outpatient treatment centers that have the same direct owner or indirect owner as the hospital.

Q. For the purposes of this section:

1. "Accredited" means accredited by a nationally recognized accreditation organization.

2. "Satellite facility" means an outpatient facility at which the hospital provides outpatient medical services.

§ 36-422.01 Health care institutions; termination of operation; medical records; civil penalties; definition

A. In addition to the requirements prescribed in section 36-422, subsection D, if a current licensee intends to terminate the operation of a licensed health care institution, the current licensee shall do one of the following before the health care institution ceases operation:

1. Provide each patient of the health care institution with the patient's medical records.

2. Transfer the health care institution's medical records to a third-party entity to ensure patient access to the medical records.

B. If a patient or a patient's health care decision maker requests access to or copies of the patient's medical records, the health care institution or third-party entity in possession of the medical records shall provide access to or copies of the medical records to the patient or the patient's health care decision maker in accordance with title 12, chapter 13, article 7.1.

C. A licensee that fails to comply with subsection A of this section is subject to a civil penalty of not more than $10,000. The director may use a licensee's failure to comply with subsection A of this section as grounds to deny a subsequent license pursuant to section 36-425, subsection K.

D. For the purposes of this section, "medical record" has the same meaning prescribed in section 36-2201.

§ 36-423 Hemodialysis technicians; minimum requirements; definition

A. Except as provided in subsection B, beginning on April 1, 2003, a facility that provides hemodialysis treatment shall only use a hemodialysis technician who is certified by a national organization that certifies hemodialysis technicians.

B. Beginning on April 1, 2003, an employee who provides hemodialysis treatment and who is not certified pursuant to subsection A is a hemodialysis technician trainee. A hemodialysis technician trainee may provide hemodialysis treatment in any facility unless the trainee fails to pass the national certification examination within two years after employment. The department of health services shall establish by rule appropriate clinical practice restrictions for hemodialysis technician trainees. An employee who is employed to provide hemodialysis treatment before April 1, 2003 must meet the requirements of this section on or before April 1, 2006.

C. A facility that provides hemodialysis treatment must maintain the verification of certification in the hemodialysis technician’s personnel file.

D. For the purposes of this section, "hemodialysis technician" means a person who, under the direct supervision of a physician licensed pursuant to title 32, chapter 13 or 17, or a registered nurse licensed pursuant to title 32, chapter 15, provides assistance in the treatment of patients who receive dialysis treatment for end stage renal disease.

§ 36-424 Inspections; suspension or revocation of license; report to board of examiners of nursing care institution administrators and assisted living facility managers

A. Except as provided in subsection B of this section, the director shall inspect the premises of the health care institution and investigate the character and other qualifications of the applicant to ascertain whether the applicant and the health care institution are in substantial compliance with the requirements of this chapter and the rules established pursuant to this chapter. The director may prescribe rules regarding department background investigations into an applicant's character and qualifications.

B. The director may accept proof that a health care institution is an accredited hospital or is an accredited health care institution in lieu of all compliance inspections required by this chapter if the director receives a copy of the health care institution's accreditation report for the licensure period and the health care institution is accredited by an independent, nonprofit accrediting organization approved by the secretary of the United States department of health and human services. If the health care institution's accreditation report is not valid for the entire licensure period, the department may conduct a compliance inspection of the health care institution during the time period the department does not have a valid accreditation report for the health care institution. For the purposes of this subsection, each licensed premises of a health care institution must have its own accreditation report. The director may not accept an accreditation report in lieu of a compliance inspection of:

1. An intermediate care facility for individuals with intellectual disabilities.

2. A nursing-supported group home.

3. A health care institution if the health care institution has been subject to an enforcement action pursuant to section 36-427 or 36-431.01 within the year preceding the annual licensing fee anniversary date.

C. On a determination by the director that there is reasonable cause to believe a health care institution is not adhering to the licensing requirements of this chapter, the director and any duly designated employee or agent of the director, including county health representatives and county or municipal fire inspectors, consistent with standard medical practices, may enter on and into the premises of any health care institution that is licensed or required to be licensed pursuant to this chapter at any reasonable time for the purpose of determining the state of compliance with this chapter, the rules adopted pursuant to this chapter and local fire ordinances or rules. Any application for licensure under this chapter constitutes permission for and complete acquiescence in any entry or inspection of the premises during the pendency of the application and, if licensed, during the term of the license. If an inspection reveals that the health care institution is not adhering to the licensing requirements established pursuant to this chapter, the director may take action authorized by this chapter. Any health care institution, including an accredited hospital, whose license has been suspended or revoked in accordance with this section is subject to inspection on application for relicensure or reinstatement of license.

D. The director shall immediately report to the board of examiners of nursing care institution administrators and assisted living facility managers information identifying that a nursing care institution administrator's conduct may be grounds for disciplinary action pursuant to section 36-446.07.

§ 36-424.01 Behavioral health facilities; sober living home information disclosure; department compliance verification; definitions

A. A behavioral health outpatient treatment center that is a service provider shall include on its patient intake form the license number or name and address of the sober living home in which the patient is living, if applicable. The department may verify compliance with the requirement of this section during any in-person survey or complaint investigation or at any other time determined by the department.

B. For the purposes of this section:

1. "Service provider" has the same meaning prescribed in section 36-3401.

2. "Sober living home" has the same meaning prescribed in section 36-2061.

§ 36-424.02 Priority matrix; level of complaint

A. The department shall provide a priority matrix for complaints filed against health care institutions on the department's public website. The priority matrix shall detail the following:

1. The various levels of complaints.

2. The process for determining the complaint level assignment.

3. The time frames for initiating a complaint investigation.

B. Before conducting a complaint investigation, the department shall disclose to the licensee the level of the complaint.

§ 36-424.03 Surveyors and supervisors; annual training program; objectives

A. The department shall implement an annual training program for all licensing surveyors and the supervisors and managers of licensing surveyors to ensure compliance with this chapter.

B. The training program shall include modules that train surveyors and the supervisors and managers of licensing surveyors on the following:

1. The department's governing policies and procedures and the statutes and rules for which the employee is responsible.

2. How to ascertain whether a complaint or grievance filed with the department should result in opening a complaint investigation under this chapter.

3. How to act in a professional manner with an emphasis on dignity and respect.

4. The importance of clear and transparent communication with licensees.

C. The department shall implement an annual process for all licensing surveyors and the supervisors and managers of licensing surveyors to demonstrate practical knowledge and understanding of the following:

1. The department's governing policies and procedures and the statutes and rules for which the employee is responsible.

2. Ascertaining whether a complaint or grievance filed with the department should result in opening a complaint investigation under this chapter.

3. How to act in a professional manner with an emphasis on dignity and respect.

4. The importance of clear and transparent communication with licensees.

§ 36-425 Inspections; issuance of license; posting requirements; provisional license; denial of license

A. On receipt of a properly completed application for a health care institution license, the director shall conduct an inspection of the health care institution as prescribed by this chapter. If an application for a license is submitted due to a planned change of ownership, the director shall determine the need for an inspection of the health care institution. Based on the results of the inspection and after the submission of the applicable licensing fee, the director shall either deny the license or issue a regular or provisional license. A license issued by the department shall be posted in a conspicuous location in the reception area of that health care institution.

B. The director shall issue a license if the director determines that an applicant and the health care institution for which the license is sought substantially comply with the requirements of this chapter and rules adopted pursuant to this chapter and the applicant agrees to carry out a plan acceptable to the director to eliminate any deficiencies. The director shall not require a health care institution that was designated as a critical access hospital to make any modifications required by this chapter or rules adopted pursuant to this chapter in order to obtain an amended license with the same licensed capacity the health care institution had before it was designated as a critical access hospital if all of the following are true:

1. The health care institution has subsequently terminated its critical access hospital designation.

2. The licensed capacity of the health care institution does not exceed its licensed capacity before its designation as a critical access hospital.

3. The health care institution remains in compliance with the applicable codes and standards that were in effect at the time the facility was originally licensed with the higher licensed capacity.

C. A health care institution license does not expire and remains valid unless:

1. The department subsequently revokes or suspends the license.

2. The license is considered void because the licensee did not pay the licensing fee, civil penalties or provider agreement fees before the relevant due date or did not enter into an agreement with the department before the relevant due date to pay all outstanding fees or civil penalties.

D. Except as provided in section 36-424, subsection B and subsection E of this section, the department shall conduct a compliance inspection of a health care institution to determine compliance with this chapter and rules adopted pursuant to this chapter at least once annually.

E. If the department determines a facility, except for a residential care institution or a nursing care institution that does not have the same direct owner or indirect owner as a hospital licensed pursuant to this chapter, to be deficiency free on a compliance survey, the department shall not conduct a compliance survey of that facility for twenty-four months after the date of the deficiency free survey. This subsection does not prohibit the department from enforcing licensing requirements as authorized by section 36-424.

F. A hospital licensed as a rural general hospital may provide intensive care services.

G. The director shall issue a provisional license for a period of not more than one year if an inspection or investigation of a currently licensed health care institution or a health care institution for which an applicant is seeking a license reveals that the health care institution is not in substantial compliance with department licensure requirements and the director believes that the immediate interests of the patients and the general public are best served if the health care institution is given an opportunity to correct deficiencies. The applicant or licensee shall agree to carry out a plan to eliminate deficiencies that is acceptable to the director. The director shall not issue consecutive provisional licenses to a single health care institution. The director shall not issue a license to the current licensee or a successor applicant before the expiration of the provisional license unless the health care institution submits an application for a substantial compliance survey and is found to be in substantial compliance. The director may issue a license only if the director determines that the health care institution is in substantial compliance with the licensure requirements of the department and this chapter. This subsection does not prevent the director from taking action to protect the safety of patients pursuant to section 36-427.

H. Subject to the confidentiality requirements of articles 4 and 5 of this chapter, title 12, chapter 13, article 7.1 and section 12-2235, the licensee shall keep current department inspection reports at the health care institution. Unless federal law requires otherwise, the licensee shall post in a conspicuous location a notice that identifies the location at that health care institution where the inspection reports are available for review.

I. A health care institution shall immediately notify the department in writing when there is a change of the chief administrative officer specified in section 36-422, subsection A, paragraph 1, subdivision (g).

J. When the department issues an original license or an original provisional license to a health care institution, it shall notify the owners and lessees of any agricultural land within one-fourth mile of the health care institution. The health care institution shall provide the department with the names and addresses of owners or lessees of agricultural land within one-fourth mile of the proposed health care institution.

K. In addition to the grounds for denial of licensure prescribed pursuant to subsection A of this section, the director may deny a license because an applicant or anyone in a business relationship with the applicant, including stockholders and controlling persons, has had a license to operate a health care institution denied, revoked or suspended or a license or certificate issued by a health profession regulatory board pursuant to title 32 or issued by a state agency pursuant to chapter 6, article 7 or chapter 17 of this title denied, revoked or suspended or has a licensing history of recent serious violations occurring in this state or in another state that posed a direct risk to the life, health or safety of patients or residents.

L. In addition to the requirements of this chapter, the director may prescribe by rule other licensure requirements.

§ 36-425.01 Home health agencies; licensure; definition

A. The department by rule shall license home health agencies. The department shall prescribe a licensure period that does not exceed two years.

B. In lieu of a state licensure survey, the department shall issue a license to a home health agency that submits an application prescribed by the department and that meets the following requirements:

1. Is certified as a home health agency by medicare.

2. Is licensed by the department for at least one year.

3. Meets all department licensure requirements.

C. The department shall retain full authority over licensed home health agencies to ensure that licensure requirements are maintained.

D. For the purposes of this section, "home health agency" has the same meaning as prescribed in section 36-151.

§ 36-425.02 Nursing care institutions; quality rating; issuance of license

A. The department shall issue to each licensed nursing care institution a quality rating based on the results of a licensure survey.

B. The director may determine the period of time for which a license issued to a nursing care institution is valid according to the quality rating category to which the institution is assigned, except that no license shall be valid for more than three years from the date of issuance.

§ 36-425.03 Children's behavioral health programs; personnel; fingerprinting requirements; exemptions; definitions

A. Except as provided in subsections B, C and D of this section, children's behavioral health program personnel, including volunteers, shall submit the form prescribed in subsection E of this section to the employer and shall have a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 or, within seven working days after employment or beginning volunteer work, shall apply for a fingerprint clearance card.

B. The following persons are exempt from the fingerprinting requirements of this section:

1. When under the direct visual supervision and in the presence of children's behavioral health program personnel who have a valid fingerprint clearance card:

(a) Except as provided in subsection C of this section, parents, foster parents, kinship foster care parents and guardians who participate in group activities that include their children who are receiving behavioral health services from a children's behavioral health program if they are not employees of the children's behavioral health program.

(b) A volunteer who provides services to children receiving behavioral health services.

(c) An employee or contractor who is eligible pursuant to section 41-1758.07, subsection C to petition the board of fingerprinting for a good cause exception and who provides documentation of having applied for a good cause exception pursuant to section 41-619.55 but who has not yet received a decision.

(d) A person who is not providing medical services, nursing services, behavioral health services, health-related services, home health services or supportive services and who is either not an employee or contractor or not on the premises on a regular basis.

2. Hospital medical staff members, employees, contractors and volunteers who are not present in an area of the hospital authorized by the department for providing children's behavioral health services.

C. A parent, foster parent, kinship foster care parent or guardian of a child who is receiving behavioral health services from a children's behavioral health program is not required to be fingerprinted or supervised for purposes of this section if the person is in the presence of or participating with only the person's own child.

D. Applicants and employees who are fingerprinted pursuant to section 15-512 or 15-534 are exempt from the fingerprinting requirements of subsection A of this section.

E. Children's behavioral health program personnel shall certify on forms that are provided by the department and notarized that they are not awaiting trial on or have never been convicted of or admitted in open court or pursuant to a plea agreement to committing any of the offenses listed in section 41-1758.03, subsection B or C in this state or similar offenses in another state or jurisdiction.

F. Forms submitted pursuant to subsection E of this section are confidential.

G. Employers of children's behavioral health program personnel shall make documented, good faith efforts to contact previous employers of children's behavioral health program personnel to obtain information or recommendations that may be relevant to an individual's fitness for employment in a children's behavioral health program.

H. A person who is awaiting trial on or who has been convicted of or who has admitted in open court or pursuant to a plea agreement to committing a criminal offense listed in section 41-1758.03, subsection B is prohibited from working in any capacity in a children's behavioral health program that requires or allows contact with children.

I. A person who is awaiting trial on or who has been convicted of or who has admitted in open court or pursuant to a plea agreement to committing a criminal offense listed in section 41-1758.03, subsection C shall not work in a children's behavioral health program in any capacity that requires or allows the employee to provide direct services to children unless the person has applied for and received the required fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

J. The department of health services shall accept a certification submitted by a United States military base or a federally recognized Indian tribe that either:

1. Personnel who are employed or who will be employed and who provide services directly to children have not been convicted of, have not admitted committing or are not awaiting trial on any offense prescribed in subsection H of this section.

2. Personnel who are employed or who will be employed to provide services directly to children have been convicted of, have admitted committing or are awaiting trial on any offense prescribed in subsection I of this section if the personnel provide these services while under direct visual supervision.

K. The employer shall notify the department of public safety if the employer receives credible evidence that a person who possesses a valid fingerprint clearance card either:

1. Is arrested for or charged with an offense listed in section 41-1758.03, subsection B.

2. Falsified information on the form required by subsection E of this section.

L. For the purposes of this section:

1. "Children's behavioral health program" means a program provided in a health care institution that is licensed by the department to provide children's behavioral health services.

2. "Children's behavioral health program personnel" means an owner, employee or volunteer who works at a children's behavioral health program.

3. "Direct visual supervision" means continuous visual oversight of the supervised person that does not require the supervisor to be in a superior organizational role to the person being supervised.

§ 36-425.04 Hospice service agencies; policies and procedures; controlled substances

A hospice service agency that is licensed pursuant to this chapter shall adopt policies and procedures to inform and educate client families on the proper disposal of schedule II controlled substances.

§ 36-425.05 Intermediate care facilities for individuals with intellectual disabilities; licensure

On or before January 1, 2020, an intermediate care facility for individuals with intellectual disabilities that is operated by the department of economic security or a private entity shall be licensed pursuant to this chapter and certified pursuant to 42 Code of Federal Regulations part 483, subpart I.

§ 36-425.06 Secure behavioral health residential facilities; license; annual report; definition

A. The department shall license secure behavioral health residential facilities to provide secure twenty-four-hour on-site supportive treatment and supervision by staff with behavioral health training for persons who have been determined to be seriously mentally ill, who are chronically resistant to treatment for a mental disorder and who are placed in the facility pursuant to a court order issued pursuant to section 36-550.09 or who have been committed pursuant to a court order issued pursuant to section 13-4521. A secure behavioral health residential facility may provide services only to persons placed in or committed to the facility pursuant to a court order issued pursuant to section 36-550.09 or 13-4521 and may not provide services to any other persons on that facility's premises. Patients who are committed pursuant to section 36-550.09 may not be treated in a secure behavioral health residential facility that treats patients who are committed pursuant to section 13-4521. A secure behavioral health residential facility may not have more than sixteen beds.

B. On or before September 1 of each year, the director of the Arizona health care cost containment system administration shall submit a report to the governor, the legislature and the supreme court that includes all of the following information:

1. An accounting of where the monies appropriated to the Arizona health care cost containment system administration for secure behavioral health residential facilities were used during the previous year.

2. The number of available beds in each secure behavioral health residential facility.

C. For the purposes of this section, "secure" means premises that limit a patient's egress in the least restrictive manner consistent with the patient's court-ordered treatment plan.

§ 36-425.07 Nursing-supported group homes; licensure

On or before July 1, 2022, a nursing-supported group home that is operated in this state by a service provider under contract with the department of economic security shall be licensed pursuant to this chapter.

§ 36-425.08 Behavioral health residential facilities; outpatient clinics; children; respite; exemptions; requirements

A. A behavioral health residential facility may provide respite care to a child for increments of fewer than five consecutive days and not more than twelve days in a ninety-day period or an outpatient clinic may provide respite care to a child for up to ten continuous hours per day between the hours of 6:00 a.m. and 10:00 p.m. without a medical history and physical examination. For those children receiving only respite services, the behavioral health residential facility or the outpatient clinic is exempt from all of the following licensure requirements in relation to the child's respite stay:

1. Providing counseling services.

2. Providing a discharge order and summary, except that a parent, guardian or custodian must be provided documentation of any incidence of illness, physical injury, use of emergency safety response or unacceptable behavior that occurs during the child's respite stay.

3. Providing medication information to a child for whom medication assistance is required.

4. Requirements for a review of the child's medication regime by a medical practitioner.

5. Preparing and posting a food menu more than twenty-four hours in advance of food service.

6. Tuberculosis screening of the child.

B. The respite care provider shall be given a list of the child's medications and allergies and emergency contact information on the child's arrival.

§ 36-425.09 Hospital price transparency; verification; annual report; exception

A. Each hospital must comply with the requirements of 45 Code of Federal Regulations part 180. The department shall annually verify each hospital's compliance with this section with the centers for medicare and medicaid services.

B. On or before January 1, 2025 and each January 1 thereafter, the department shall post a report on its public website containing the name of any hospital that has been found to be noncompliant with the requirements of 45 Code of Federal Regulations part 180 and that has been assessed a civil monetary penalty by the centers for medicare and medicaid services.

C. This section does not apply to the Arizona state hospital.

§ 36-426 Hospital providers of extended care services

Notwithstanding section 36-407, a hospital licensed pursuant to this article which has been certified pursuant to title XVIII of the social security act as a rural extended care hospital may provide nursing care services, for a period of not to exceed an average of forty-five days, which are within the scope of services authorized by the medicare extended care program to any patient who is a member of the Arizona long-term care system and for which the services are appropriate. A hospital shall not admit a patient to an extended care program pursuant to this section if the patient needs a clinical service which is not available in the extended care program or requires services below the skilled nursing level of care as defined by the director.

§ 36-427 Suspension or revocation; intermediate sanctions

A. The director, pursuant to title 41, chapter 6, article 10, may suspend or revoke, in whole or in part, the license of any health care institution if its owners, officers, agents or employees:

1. Violate this chapter or the rules of the department adopted pursuant to this chapter.

2. Knowingly aid, permit or abet the commission of any crime involving medical and health-related services.

3. Have been, are or may continue to be in substantial violation of the requirements for licensure of the institution, as a result of which the health or safety of one or more patients or the general public is in immediate danger.

4. Fail to comply with section 36-2901.08.

5. Violate section 36-2302.

B. If the licensee, the chief administrative officer or any other person in charge of the institution refuses to permit the department or its employees or agents the right to inspect the institution's premises as provided in section 36-424, such action shall be deemed reasonable cause to believe that a substantial violation under subsection A, paragraph 3 of this section exists.

C. If the director reasonably believes that a violation of subsection A, paragraph 3 of this section has occurred and that life or safety of patients will be immediately affected, the director, on written notice to the licensee, may order the immediate restriction of admissions or readmissions, selected transfer of patients out of the facility, reduction of capacity and termination of specific services, procedures, practices or facilities.

D. The director may rescind, in whole or in part, sanctions imposed pursuant to this section on correction of the violation or violations for which the sanctions were imposed.

§ 36-428 Hearings by the director

A. No license shall be suspended or revoked without affording the licensee notice and an opportunity for a hearing as provided for in title 41, chapter 6, article 10. On a licensee's request, the director may hold hearings concerning a health care institution's license in the city in which the institution is located.

B. Any person whose application for a license has been denied by the director or who has been ordered by the director to restrict admissions, transfer selected patients out of the facility, reduce capacity and terminate specific services, procedures, practices or facilities may, at any time within thirty days after notice of the denial or order, request in writing a hearing before the director, to be held within thirty days following the written request, for the purpose of reviewing the action of the director.

C. All hearings shall be in accordance with title 41, chapter 6, article 10.

§ 36-429 Removal of licensee; temporary management continued operation

A. If the director reasonably believes that a violation of this chapter by a licensee endangers the health, safety or welfare of one or more of the licensee's patients, in addition to other remedies provided by this chapter, the director may enter into an agreement with the licensee or bring an action requesting the superior court to:

1. Remove the administrative officers, agents or employees of such licensee by injunction, enjoin the licensee from continued operation and revoke the license.

2. Appoint temporary personnel to continue operation of the health care institution under conditions and requirements set by the court pending correction of the violation and restoration of the licensee, revocation of the license or correction of the violation and change of ownership.

B. The action shall be brought in the name of the people of the state through the attorney general in the superior court in the county in which the health care institution is located.

§ 36-430 Unlicensed operation prohibited; injunction

The operation or maintenance of a health care institution which does not hold a current and valid license or which exceeds the range of the services authorized by the class or subclass for which it is licensed is a violation of this chapter and is declared a nuisance inimical to the public health and safety. The director, in the name of the people of the state, through the attorney general, may bring an action for an injunction to restrain such violation or to enjoin the future operation or maintenance of any such health care institution until substantial compliance with the provisions of this chapter and the rules and regulations and standards adopted pursuant thereto is obtained.

§ 36-431 Violation; classification

A. A person is guilty of a class 3 misdemeanor who:

1. Establishes, operates or maintains any class or subclass of health care institution, as defined in this chapter, unless the person holds a current and valid license for such class or subclass from the department.

2. Knowingly violates any provision of this chapter unless another classification is specifically prescribed in this chapter.

B. Each day that a violation continues shall constitute a separate violation.

§ 36-431.01 Violations; civil penalties; enforcement

A. The director may assess a civil penalty against a person who violates this chapter or a rule adopted pursuant to this chapter in an amount of not more than $1,000 for each violation, which may be assessed for each resident or patient who the department determines was impacted by the violation. Each day that a violation occurs constitutes a separate violation.

B. The director may issue a notice of assessment that shall include the proposed amount of the assessment. A person may appeal the assessment by requesting a hearing pursuant to title 41, chapter 6, article 10. When an assessment is appealed, the director shall take no further action to enforce and collect the assessment until after the hearing.

C. In determining the amount of the civil penalty pursuant to subsection A of this section, the department shall establish a model in rule that considers the following:

1. Repeated violations of statutes or rules.

2. Patterns of noncompliance.

3. Types of violations.

4. The severity of violations.

5. The potential for and occurrences of actual harm, including to patients, staff or residents.

6. Threats to health and safety, including to patients, staff or residents.

7. The number of persons affected by the violations.

8. The number of violations.

9. The size of the facility.

10. The length of time that the violations have been occurring.

11. The type of health care institution.

12. Whether the health care institution and staff are in compliance with the reporting requirements pursuant to section 46-454.

D. Pursuant to interagency agreement specified in section 36-409, the director may assess a civil penalty, including interest, in accordance with 42 United States Code section 1396r. A person may appeal this assessment by requesting a hearing before the director in accordance with subsection B of this section. Civil penalty amounts may be established by rules adopted by the director that conform to guidelines or regulations adopted by the secretary of the United States department of health and human services pursuant to 42 United States Code section 1396r.

E. Actions to enforce the collection of penalties assessed pursuant to subsections A and D of this section shall be brought by the attorney general or the county attorney in the name of the state in the justice court or the superior court in the county in which the violation occurred.

F. Penalties assessed under subsection D of this section are in addition to and not in limitation of other penalties imposed pursuant to this chapter. All civil penalties and interest assessed pursuant to subsection D of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the nursing care institution resident protection revolving fund established by section 36-431.02. The director shall use these monies for the purposes prescribed by 42 United States Code section 1396r, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of the deficiencies or closure and reimbursement of residents for personal monies lost.

G. The department shall deposit civil penalties assessed under subsection A of this section in the state general fund.

§ 36-431.02 Nursing care institution resident protection revolving fund; use; nonreversion

A. The nursing care institution resident protection revolving fund is established. The fund consists of monies received from civil penalties collected by the director pursuant to section 36-431.01, subsection D.

B. The director shall use monies in the fund for the purposes prescribed in section 36-431.01, subsection F, subject to legislative appropriation.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to the lapsing of appropriations.

§ 36-432 Urgent care centers; posting requirements

If a physician licensed pursuant to title 32, chapter 13 or 17 is not on site during working hours at a freestanding urgent care center, as a condition of licensure, the center must post a conspicuous sign stating this fact. The center must post this sign in the center's patient waiting room in full view of the patients.

§ 36-433 Receipt of report and complaint; investigation

On receipt of a notice pursuant to section 12-570 and a copy of a complaint as provided in section 12-570, the department may initiate an investigation into the matter to determine if the licensee is in violation of the statutes or rules governing licensure.

§ 36-434 Outdoor behavioral health care programs; licensing requirements; inspections

A. An outdoor behavioral health care program shall:

1. Comply with the requirements for a level 2 behavioral health residential agency, as established by the department by rule except as provided in subsection C of this section.

2. Obtain and maintain national accreditation as an outdoor behavioral health care program.

3. Ensure that the outdoor behavioral health program's personnel comply with the requirements of section 36-425.03.

B. In addition to the standards adopted pursuant to section 36-405, subsection A, the department may adopt rules to establish facility, equipment and sanitation standards for outdoor behavioral health care programs.

C. An outdoor behavioral health care program that does not use facilities is exempt from any facility standards applicable to a behavioral health service agency.

D. If the director determines that there is reasonable cause to believe an outdoor behavioral health care program is not adhering to the licensing requirements of this chapter, the director and any duly designated employee or agent of the director, including county health representatives and county or municipal fire inspectors, may enter on and into any area used by the outdoor behavioral health care program at any reasonable time to determine, consistent with standard medical practices or behavioral health practices, compliance with this chapter, rules adopted pursuant to this chapter and local fire ordinances or rules.

E. An application for licensure under this chapter constitutes permission for and complete acquiescence in any entry or inspection of any area used by the outdoor behavioral health care program during the pendency of the application and, if licensed, during the term of the license.

F. If an inspection reveals that the outdoor behavioral health care program is not adhering to the licensing requirements prescribed pursuant to this chapter, the director may take action authorized by this chapter.

G. An outdoor behavioral health care program whose license has been suspended or revoked pursuant to this section is subject to inspection on application for relicensure or reinstatement of license.

§ 36-434.01 Outpatient surgical centers; hospitals; surgical smoke evacuation systems; definitions

A. Beginning July 1, 2024, each outpatient surgical center or hospital shall adopt and implement policies to prevent exposure to surgical smoke by using a smoke evacuation system for each procedure that generates surgical smoke.

B. The department shall ensure compliance with this section during any on-site inspection and in response to any complaint received relating to a violation of this section.

C. For the purposes of this section:

1. "Smoke evacuation system" means smoke evacuation equipment and technologies designed to capture, filter and remove surgical smoke at the site of origin and to prevent surgical smoke from making ocular contact or contact with an individual's respiratory tract.

2. "Surgical smoke":

(a) Means the surgical plume that is generated from the use of an energy-generating surgical device.

(b) Includes smoke plume, bio-aerosols, laser-generated airborne contaminants and lung-damaging dust.

§ 36-434.02 Facility-provided multidose medication; definition

A. If a facility-provided multidose medication is ordered at least twenty-four hours before a surgical procedure and is administered to a patient at a hospital or outpatient surgical center, any unused portion of the facility-provided multidose medication may be offered to the patient on discharge if the facility-provided multidose medication is required for continuing treatment.

B. If the facility-provided multidose medication is used in an operating room or emergency department setting, the prescriber is responsible for counseling the patient on the proper use and administration of the facility-provided multidose medication and any pharmacist counseling requirement is waived.

C. A facility-provided multidose medication shall be labeled consistent with the labeling requirements under title 32, chapter 18.

D. For the purposes of this section, "facility-provided multidose medication" means any topical antibiotic or anti-inflammatory, dilation or glaucoma drop or ointment that the staff of a hospital operating room, emergency department or outpatient surgical center has ordered or retrieved from a dispensing system for a specific patient for use during a procedure or visit.

Article 2.1 Hospital Staff Privileges

§ 36-435 Staff privileges for podiatrists

A. The governing board of each health care institution classified by the director as a hospital pursuant to section 36-405, subsection B shall provide for the use of the health care institution by, and staff privileges for, duly licensed podiatrists subject to nondiscriminatory rules and regulations governing the use or privileges established by the governing board and medical staff for persons licensed under title 32, chapter 7, 13 or 17.

B. This article does not prohibit any health care institution which is a teaching facility owned or operated by a university operating a school of medicine from requiring that any podiatrist have a faculty teaching appointment as a condition for eligibility for staff privileges at the health care institution.

Article 3 Review of Rates, Rules and Regulations

§ 36-436 Filing and review of rates and rules as prerequisite to operation

A. A new hospital or nursing care institution shall not engage in business within this state until there is filed a schedule of its rates and charges and rules that relate to those rates and charges with the director for the director's review. The schedules of rates and charges shall be in the form and contain information prescribed by the director.

B. The director shall adopt or establish reasonable guidelines for review of rates and charges for hospital or nursing care institutions. Those health care institutions which are classified by the director as hospitals pursuant to section 36-405, subsection B shall use the current edition of the statement on the financial requirements of health care institutions and services, as adopted by the American hospital association, or amended editions thereof if applicable, as a guide for establishing hospital rates and charges.

C. After a hospital or nursing care institution files the schedule required under subsection A of this section, the director shall promptly review the schedule within sixty days and publish information on gross charges based on that schedule.

§ 36-436.01 Rate schedules; printing and posting requirements; outpatient treatment centers; posting and filing requirements

A. The schedule required under section 36-436 shall be printed in legible type and shall contain a listing of all services performed and commodities furnished for which a separate charge is made, together with the charges for each. The schedule shall plainly state all rules or regulations which may in any way change, affect or determine any part or the aggregate of the rates or charges or the value of the services or commodities covered by the schedule. Hospitals shall also include the number of times a separate charge was imposed for services performed or commodities furnished for each item listed during the twelve month period immediately prior to submission.

B. After review by the director a copy of the schedule shall be posted in a conspicuous place in the reception area of each hospital and any of the hospital's outpatient treatment centers or nursing care institutions using the schedule. Another copy also shall be kept in the reception area and be available for inspection by the public at all times upon request.

C. Licensed health care institutions classified as outpatient treatment centers and home health agencies shall file a copy of the schedule with the director before implementing those rates or charges and shall post a copy in a conspicuous area.

§ 36-436.02 Increases of rates or charges; filing

A. A hospital or nursing care institution shall not increase any rate or charge until the proposed increase has been filed with the director and reviewed in the same manner as the schedule set forth in section 36-436.

B. A copy of any proposed reduction in any rate or charge shall be filed with the director for informational purposes prior to the effective date of such reduction.

§ 36-436.03 Public availability of rates and charges

A home health agency, supervisory care home and a hospice shall furnish a copy of the institution's rates and charges to the public on request.

§ 36-437 Health care facilities; charges; public availability; direct payment; notice; definitions

A. A health care facility with more than fifty inpatient beds must make available on request or online the direct pay price for at least the fifty most used diagnosis-related group codes, if applicable, for the health care facility and at least the fifty most used outpatient service codes, if applicable, for the health care facility. The services may be identified by a common procedural terminology code or by a plain-English description. The health care facility must update the direct pay prices at least annually based on the services from a twelve-month period that occurred within the eighteen-month period preceding the annual update. The direct pay price must be for the standard treatment provided for the service and may include the cost of treatment for complications or exceptional treatment.

B. A health care facility with fifty or fewer inpatient beds must make available on request or online the direct pay price for at least the thirty-five most used diagnosis-related group codes, if applicable, for the health care facility and at least the thirty-five most used outpatient service codes if applicable, for the health care facility. The services may be identified by a common procedural terminology code or by a plain-English description. The health care facility must update the direct pay prices at least annually based on the services from a twelve-month period that occurred within the eighteen-month period preceding the annual update. The direct pay price must be for the standard treatment provided for the service and may include the cost of treatment for complications or exceptional treatment.

C. Subsections A and B of this section do not apply if a discussion of the direct pay price would be a violation of the federal emergency medical treatment and labor act.

D. Veterans administration facilities, health facilities on military bases, Indian health services facilities and tribal owned clinics are exempt from the requirements of this section. If the director of the Arizona department of health services determines that a health care facility does not serve the general public, the health care facility is exempt from the requirements of this section if the health care facility does not serve the general public.

E. Subsections A and B of this section do not prevent a health care facility from offering either additional discounts or additional lawful health care services for an additional cost to a person or an employer paying directly.

F. A health care facility is not required to report the direct pay prices to a government agency or department or to a government-authorized or government-created entity for review. A government agency or department or government-authorized or government-created entity may not approve, disapprove or limit a health care facility's direct pay price for services. A government agency or department or government-authorized or government-created entity may not approve, disapprove or limit a health care facility's ability to change the published or posted direct pay price for services.

G. A health care system may not punish a person or employer for paying directly for lawful health care services or a health care facility for accepting direct payment from a person or employer for lawful health care services.

H. Except as provided in subsection O of this section, a health care facility that receives direct payment from a person or employer for a lawful health care service is deemed paid in full if the entire fee for the service is paid and shall not submit a claim for payment or reimbursement for the service to any health care system. This subsection does not prevent a health care facility from pursuing a health care lien for customary charges pursuant to title 33. This subsection does not affect the ability of a health care facility to submit claims for the same service provided on other occasions to the same or a different person if no direct payment occurs. This subsection does not require a health care facility to refund or adjust any capitated payment, bundled payment or other form of prepayment or global payment made by a health care system to the health care facility for lawful health care services to be provided by the health care facility for the person who makes, or on whose behalf an employer makes, direct payment to the health care facility.

I. Before a health care facility that is contracted as a network provider for a health care system accepts direct payment from a person or an employer, and the person is an enrollee of the same health care system, the health care facility shall obtain the person's or employer's signature on a notice in a form that is substantially similar to the following:

Important Notice About Direct Payment

For Your Health Care Services

The Arizona Constitution allows you to pay a health care facility directly for health care services. Before you make any agreement to do so, please read the following important information:

If you are an enrollee of a health care system (more commonly referred to as a "health insurance plan") and your health care facility is contracted with the health insurance plan, the following apply:

1. You may not be required to pay the health care facility directly for the services covered by your plan, except for cost share amounts that you are obligated to pay under your plan, such as copayments, coinsurance and deductible amounts.

2. Your provider's agreement with the health insurance plan may prevent the health care facility from billing you for the difference between the facility's billed charges and the amount allowed by your health insurance plan for covered services.

3. If you pay directly for a health care service, your health care facility will not be responsible for submitting claim documentation to your health insurance plan for that claim. Before paying your claim, your health insurance plan may require you to provide information and submit documentation necessary to determine whether the services are covered under your plan.

4. If you do not pay directly for a health care service, your health care facility may be responsible for submitting claim documentation to your health insurance plan for the health care service.

Your signature below acknowledges that you received this notice before paying directly for a health care service.

J. A health care facility that receives direct payment for a lawful health care service and that complies with subsection I of this section is not responsible for submitting documentation of any kind for purposes of reimbursement to any health care system for that claim if the failure to submit such documentation does not conflict with the terms of any federal or state contracts to which the health care system is a party and the health care facility has agreed to serve patients under or with applicable state or federal programs in which a health care facility and health care system participate.

K. A health care facility that receives direct payment pursuant to this section shall provide the person making the direct payment with a receipt that includes the following information:

1. The amount of the direct payment.

2. The applicable procedure and diagnosis codes for the services rendered.

3. A clear notation that the services were subject to direct payment under this section.

L. If an enrollee pays to a health care facility that is an out-of-network provider the direct pay price for a lawful health care service that is covered under the enrollee's health care plan, pursuant to the requirements of this section, the amount paid by the enrollee shall be applied first to the enrollee's in-network deductible with any remaining monies being applied to the enrollee's out-of-network deductible, if applicable. The amount applied to the in-network deductible shall be the amount paid directly or the health insurer's prevailing contracted commercial rate for the enrollee's health care plan in this state for the service or services. If the service or services do not match standard codes or bundled payment programs in use in this state by the health insurer, the amount applied to the in-network deductible shall be the amount paid directly. For the purposes of this subsection, "prevailing contracted commercial rate" means the most usual and customary rate that a health insurer offers as payment for a specific service under a specific health care plan, not including a plan offered under medicare or medicaid or on a health insurance exchange.

M. If an enrollee is enrolled in a high deductible plan that qualifies the enrollee for a health savings account as defined in 26 United States Code section 223, the health care system is not liable if the enrollee submits a claim for deductible application of a direct pay amount pursuant to subsection L of this section that jeopardizes the enrollee's status as an individual eligible for favorable tax treatment of the health savings account.

N. This section does not create any private right or cause of action for or on behalf of any person against the health insurer. This section provides solely an administrative remedy for any violation of this section or any related rule.

O. This section does not impair the provisions of a health care system's private health care network provider contract, except that a health care facility may accept direct payment from a person or employer or may decline to bill the health care system directly for services paid directly by a person or employer if the health care facility has complied with subsection I of this section and the health care facility's receipt of direct payment and the declination to bill the health care system do not conflict with the terms of any federal or state contract to which the health care system is a party and the health care facility has agreed to serve patients under or with applicable state or federal programs in which a health care facility and health care system participate.

P. This section may not prevent the department of health services from performing an investigation of a health care facility under the department's powers and duties as prescribed in this title. If a health care facility fails to comply with this section, the penalty shall not include the revocation of the health care facility's license to deliver health care services.

Q. For the purposes of this section:

1. "Direct pay price" means the entire price that will be charged by a health care facility for a lawful health care service, regardless of the health insurance status of the person, if the entire fee for the service is paid in full directly to a health care facility by the person, including the person's health savings account, or by the person's employer and that does not prohibit a health care facility from establishing a payment plan with the person paying directly for services.

2. "Enrollee" means a person who is enrolled in a health care plan provided by a health insurer.

3. "Health care facility" means an outpatient surgical center, health care laboratory, diagnostic imaging center or urgent care center.

4. "Health care plan" means a policy, contract or evidence of coverage issued to an enrollee. Health care plan does not include limited benefit coverage as defined in section 20-1137.

5. "Health care provider" means a person who is licensed pursuant to title 32, chapter 7, 8, 13, 14, 16, 17, 19 or 34.

6. "Health care system" means a public or private entity whose function or purpose is the management, processing or enrollment of individuals or the payment, in full or in part, of health care services.

7. "Health insurer":

(a) Means a disability insurer, group disability insurer, blanket disability insurer, health care services organization, hospital service corporation, medical service corporation or hospital and medical service corporation as defined in title 20.

(b) Does not include a governmental plan as defined in the employee retirement income security act of 1974 (P.L. 93-406; 88 Stat. 829; 29 United States Code section 1002).

8. "Lawful health care services" means any health-related service or treatment, to the extent that the service or treatment is allowed or not prohibited by law or regulation, that may be provided by persons or businesses that are otherwise allowed to offer the services or treatments.

9. "Punish" means to impose any penalty, surcharge or named fee with a similar effect that is used to discourage the exercise of rights under this section.

Article 3.1 Colocation at Outpatient Treatment Centers

§ 36-439 Definitions

In this article, unless the context otherwise requires:

1. "Associated licensed provider" means one or more licensed outpatient treatment centers or exempt outpatient treatment centers or one or more licensed counseling facilities that share common areas pursuant to a written agreement with a collaborating outpatient treatment center and that are liable and responsible for the treatment areas that are used by the respective associated licensed provider pursuant to written policies.

2. "Collaborating outpatient treatment center" means a licensed outpatient treatment center or an exempt outpatient treatment center that has a written agreement with one or more outpatient treatment centers or exempt health care providers or licensed counseling facilities that requires the collaborating outpatient treatment center to be liable and responsible pursuant to written policies for all common areas that one or more colocators use.

3. "Colocator" means an exempt health care provider, an exempt outpatient treatment center or a governing authority operating as an outpatient treatment center or a licensed counseling facility that may share common areas and nontreatment personnel with another colocator pursuant to an agreement as prescribed in this article.

4. "Common areas":

(a) Means the licensed public or nonpublic portions of outpatient treatment center premises that are not used for treatment and that are shared by one or more licensees or exempt health care providers.

(b) Includes hallways, entrances, elevators, staircases, restrooms, reception areas, conference areas, employee break rooms, records retention areas and other nontreatment areas of an outpatient treatment center.

5. "Emergency health care services" means treatment for a medical or behavioral health condition, including labor and delivery, that manifests itself by acute symptoms of sufficient severity, including severe pain, such that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in any of the following:

(a) Placing the patient's health, including mental health, in serious jeopardy.

(b) Serious impairment to a bodily function of the patient.

(c) Serious dysfunction of any bodily organ or part of the patient.

(d) Harm to the patient or others.

6. "Exempt health care provider" means a health care provider who is licensed pursuant to title 32, who holds an active license and whose private office or clinic is exempt from licensure pursuant to section 36-402, subsection A, paragraph 3.

7. "Exempt outpatient treatment center" means a facility with the same direct owner or indirect owner as a hospital that is licensed pursuant to this chapter, that does not have inpatient beds, that provides physical health services or behavioral health services for the diagnosis and treatment of patients and that is exempt from licensure pursuant to section 36-402, subsection A, paragraph 12.

8. "Nontreatment personnel" means employees, agents, students, interns or independent contractors who provide services to an outpatient treatment center colocator that do not entail medical, nursing or behavioral health assessment or treatment.

9. "Treatment areas" means portions of licensed outpatient treatment center premises that are used for the provision of health care assessment and treatment of patients.

§ 36-439.01 Colocation of licensees

Notwithstanding any other provision of this chapter, one or more licensed outpatient treatment centers or exempt outpatient treatment centers that provide medical, nursing and health-related services may colocate or colocate with one or more licensees or exempt outpatient treatment centers that provide behavioral health services or with one or more licensed counseling facilities and may share common areas at the collaborating outpatient treatment center premises and share nontreatment personnel pursuant to the requirements of this article.

§ 36-439.02 Colocators; collaborating outpatient treatment centers; requirements

In addition to any other requirements of this chapter, colocators at a collaborating outpatient treatment center shall:

1. Designate which outpatient treatment center will act as the collaborating outpatient treatment center and be liable and responsible for the health, safety, cleanliness and maintenance of all common areas and the supervision and training of all shared nontreatment personnel pursuant to written policies of the collaborating outpatient treatment center.

2. Designate which areas are considered common areas and which personnel are designated as shared nontreatment personnel.

3. Designate the associated licensed providers.

4. Ensure that medical records that are located in common areas or shared by colocators are maintained pursuant to all federal and state confidentiality laws. A colocator may have access to a patient's medical records only if the patient has consented.

§ 36-439.03 Use of treatment areas

Colocators shall solely maintain and use treatment areas that are designated pursuant to each of their respective licenses and may not use another colocator's treatment areas except as follows:

1. For the provision of emergency health care services.

2. During hours of operation by a colocator that are clearly identified by signage to the public and notice to the department.

§ 36-439.04 Colocation; outpatient treatment centers; health care providers

A. The governing authority of a licensed collaborating outpatient treatment center or a collaborating exempt outpatient treatment center, by agreement, may share common areas and may share nontreatment personnel with one or more exempt health care providers or one or more licensed counseling facilities pursuant to section 36-439.02.

B. Treatment areas that are licensed under an outpatient treatment center may also be used by an exempt health care provider or an exempt outpatient treatment center if the provider's treatment areas and hours of operation are clearly identified by signage to the public and notice to the department.

C. Notwithstanding subsections A and B of this section, a licensed or exempt outpatient treatment center may contract with or employ an exempt health care provider to provide health care services to the licensed or exempt outpatient treatment center's patients.

§ 36-439.05 Outpatient treatment center employees; behavioral health services; private office or clinic of an exempt health care provider

A. Notwithstanding any other provision in this article, an employee of a licensed outpatient treatment center or an exempt outpatient treatment center that provides behavioral health services may provide behavioral health services at a private office or clinic that is operated by an exempt health care provider under the following circumstances:

1. The services are provided to a patient of the exempt health care provider, the exempt outpatient treatment center or the licensed outpatient treatment center.

2. The licensed outpatient treatment center or the exempt outpatient treatment center and the exempt health care provider have a written agreement specifying all of the following:

(a) The services to be provided.

(b) The responsibility for billing for the services provided.

(c) Liability for the actions of the licensed outpatient treatment center's or the exempt outpatient treatment center's employee.

(d) The responsibility for maintenance, access to and confidentiality of medical records.

(e) That the medical records for the behavioral health services provided by the licensed outpatient treatment center's or the exempt outpatient treatment center's employee are stored at the outpatient treatment center, in addition to any provisions for maintaining and storing the medical records at other sites.

B. A licensed outpatient treatment center and an exempt outpatient treatment center shall report to the department any unexpected death, self-injury or other injury of a patient under the care of its employee that occurs on the premises of an exempt health care provider and whether the injury required medical attention. The department may report the incident to the licensing board of any health care professional who is involved in the incident.

C. Unlicensed employees of a licensed outpatient treatment center or an exempt outpatient treatment center may provide services at the private office or clinic of the exempt health care professional only when a licensed health care professional who is employed by the licensed or exempt outpatient treatment center is on-site.

Article 4 Health Care Utilization Review

§ 36-441 Health care utilization committees; immunity; exception; definition

A. A person who without malice makes a decision or recommendation as a member, agent or employee of a health care utilization committee or who furnishes any records, information or assistance to that committee at its request is not subject to liability for civil damages or any legal action in consequence of that action. In any such action, the absence of malice is presumed. This presumption may be overcome only by a showing of clear and convincing evidence. This section does not relieve a person of liability arising from treatment of a patient. For the purposes of this subsection, "malice" means evil intent and outrageous, oppressive or intolerable conduct that creates a substantial risk of tremendous harm to others.

B. All proceedings, records and materials prepared in connection with the activities of a health care utilization committee are confidential and are not subject to discovery except:

1. In proceedings before the Arizona medical board or the board of osteopathic examiners.

2. In actions by an individual health care provider against the health care institution or outpatient surgical center arising from the discipline or other adverse action taken against the individual as a result of utilization review.

C. No member of a utilization review committee, person engaged in assisting the committee or person furnishing information to the committee may be subpoenaed to testify in a judicial or quasi-judicial proceeding if the subpoena is based solely on the utilization review committee's activities.

D. This section does not:

1. Affect a patient's claim to privilege or privacy.

2. Prevent the subpoena of a patient's medical records if they are otherwise subject to discovery.

3. Restrict the powers and duties of the director pursuant to this chapter with respect to records and information that are not subject to this section.

E. In a legal action brought against a hospital or outpatient surgical center for failure to adequately perform utilization review, representatives of the facility may testify as to whether there was utilization review with respect to the subject matter of the litigation.

F. All proceedings, records and materials prepared in connection with utilization review are confidential and inadmissible as evidence in a court proceeding.

G. For the purposes of this section, "health care utilization committee" means a committee established by a hospital or an outpatient surgical center to review or evaluate the utilization, appropriateness and necessity of health care services provided by that facility.

Article 5 Review of Certain Health Care Practices

§ 36-445 Review of certain medical practices

The governing body of each licensed hospital or outpatient surgical center shall require that physicians admitted to practice in the hospital or center organize into committees or other organizational structures to review the professional practices within the hospital or center for the purposes of reducing morbidity and mortality and for the improvement of the care of patients provided in the institution. Such review shall include the nature, quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital or center. Such review need not identify the patient or doctor by name but may use a case number or some other such designation.

§ 36-445.01 Confidentiality of information; conditions of disclosure

A. All proceedings, records and materials prepared in connection with the reviews provided for in section 36-445, including all peer reviews of individual health care providers practicing in and applying to practice in hospitals or outpatient surgical centers and the records of such reviews, are confidential and are not subject to discovery except in proceedings before the Arizona medical board or the board of osteopathic examiners, or in actions by an individual health care provider against a hospital or center or its medical staff arising from discipline of such individual health care provider or refusal, termination, suspension or limitation of the health care provider's privileges. No member of a committee established under the provisions of section 36-445 or officer or other member of a hospital's or center's medical, administrative or nursing staff engaged in assisting the hospital or center to carry out functions in accordance with that section or any person furnishing information to a committee performing peer review may be subpoenaed to testify in any judicial or quasi-judicial proceeding if the subpoena is based solely on those activities.

B. This article does not affect any patient's claim to privilege or privacy or to prevent the subpoena of a patient's medical records if they are otherwise subject to discovery or to restrict the powers and duties of the director pursuant to this chapter, with respect to records and information that are not subject to this article. In any legal action brought against a hospital or outpatient surgical center licensed pursuant to this chapter claiming negligence for failure to adequately do peer review, representatives of the hospital or center are permitted to testify as to whether there was peer review as to the subject matter being litigated. The contents and records of the peer review proceedings are fully confidential and inadmissible as evidence in any court of law.

§ 36-445.02 Immunity relating to review of medical practices

A. Any individual who, in connection with duties or functions of a hospital or outpatient surgical center pursuant to section 36-445, makes a decision or recommendation as a member, agent or employee of the medical or administrative staff of a hospital or center or of one of its review committees or related organizations or who furnishes any records, information, or assistance to such medical staff or review committee or related organization is not subject to liability for civil damages or legal action in consequence thereof.

B. No hospital or outpatient surgical center and no individual involved in carrying out review or disciplinary duties or functions of a hospital or center pursuant to section 36-445 may be liable in damages to any person who is denied the privilege to practice in a hospital or center or whose privileges are suspended, limited or revoked. The only legal action which may be maintained by a licensed health care provider based on the performance or nonperformance of such duties and functions is an action for injunctive relief seeking to correct an erroneous decision or procedure. The review shall be limited to a review of the record. If the record shows that the denial, revocation, limitation or suspension of membership or privileges is supported by substantial evidence, no injunction shall issue. In such actions, the prevailing party shall be awarded taxable costs, but no other monetary relief shall be awarded.

C. Nothing in this section relieves any individual, hospital or outpatient surgical center from liability arising from treatment of a patient.

§ 36-445.03 Limitation of publication; identity of patient confidential

Any publication of the results of a review for the purposes provided in sections 36-445 and 36-445.01 shall be made only for the purposes provided in those sections and shall keep confidential the identity of any patient whose condition, care or treatment was a part thereof.

§ 36-445.04 Freestanding urgent care center incident reporting; confidentiality requirement

If a patient's death occurs at a freestanding urgent care center, the center shall report the death to the department not later than the next department workday. The department shall not release personally identifiable patient or physician information.

Article 6 Licensing of Nursing Care Institution Administrators and Certification of Assisted Living Facility Managers

§ 36-446 Definitions

In this article, unless the context otherwise requires:

1. "Administrator" or "nursing care institution administrator" means a person who is charged with the general administration of a nursing care institution, whether or not that person has an ownership interest in the institution and whether or not the person's functions and duties are shared with others.

2. "Assisted living facility" has the same meaning prescribed in section 36-401.

3. "Assisted living facility manager" means a person who has responsibility for administering or managing an assisted living facility, whether or not that person has an ownership interest in the institution and whether or not the person's functions and duties are shared with others.

4. "Assisted living facility training program" includes:

(a) Training that is required for assisted living facility manager certification.

(b) Training that is required for assisted living facility caregivers and that is either:

(i) Consistent with the training, competency and test methodology standards developed by the Arizona health care cost containment system administration for in-home direct care workers.

(ii) As prescribed in section 36-446.16.

5. "Board" means the board of examiners of nursing care institution administrators and assisted living facility managers.

6. "Department" means the department of health services.

7. "Directed care services" has the same meaning prescribed in section 36-401.

8. "Director" means the director of the department of health services.

9. "Felony involving violence or financial fraud" means any of the following offenses:

(a) Sexual abuse of a vulnerable adult.

(b) Homicide, including first or second degree murder, manslaughter or negligent homicide.

(c) Sexual assault.

(d) Sexual exploitation of a vulnerable adult.

(e) Commercial sexual exploitation of a vulnerable adult.

(f) Child abuse.

(g) Abuse of a vulnerable adult.

(h) Molestation of a child.

(i) Molestation of a vulnerable adult.

(j) A dangerous crime against children as defined in section 13-705.

(k) Neglect or abuse of a vulnerable adult.

(l) Sexual abuse.

(m) Causing one's spouse to become a prostitute.

(n) Detention of persons in a house of prostitution for debt.

(o) Pandering.

(p) A felony offense involving domestic violence as defined in section 13-3601 except for a felony offense involving only criminal damage in an amount of more than $250 but less than $1,000 if the offense was committed before June 29, 2009.

(q) Any felony offense in violation of title 13, chapter 12.

(r) Felony indecent exposure.

(s) Felony public sexual indecency.

(t) Terrorism.

(u) Any offense involving a violent crime as defined in section 13-901.03.

(v) Aggravated criminal damage.

(w) Theft.

(x) Theft by extortion.

(y) Forgery.

(z) Criminal possession of a forgery device.

(aa) Obtaining a signature by deception.

(bb) Theft of a credit card or obtaining a credit card by fraudulent means.

(cc) Receipt of anything of value obtained by fraudulent use of a credit card.

(dd) Forgery of a credit card.

(ee) Fraudulent use of a credit card.

(ff) Possession of any machinery, plate or other contrivance or incomplete credit card.

(gg) A false statement as to financial condition or identity to obtain a credit card.

(hh) Fraud by persons authorized to provide goods or services.

(ii) Credit card transaction record theft.

(jj) Adding poison or another harmful substance to food, drink or medicine.

(kk) A criminal offense involving criminal trespass under title 13, chapter 15.

(ll) A criminal offense involving burglary under title 13, chapter 15.

(mm) A criminal offense under title 13, chapter 23, except terrorism.

(nn) A felony offense involving domestic violence as defined in section 13-3601 if the offense involved only criminal damage in an amount of more than $250 but less than $1,000 and the offense was committed before June 29, 2009.

(oo) Taking the identity of another person or entity.

(pp) Aggravated taking the identity of another person or entity.

(qq) Trafficking in the identity of another person or entity.

(rr) Welfare fraud.

(ss) Kidnapping.

(tt) Robbery, aggravated robbery or armed robbery.

10. "Nursing care institution":

(a) Means an institution or other place, however named, whether for profit or not, including facilities operated by this state or a subdivision of this state, that is advertised, offered, maintained or operated for the express or implied purpose of providing care to persons who need nursing services on a continuing basis but who do not require hospital care or care under the daily direction of a physician.

(b) Does not include:

(i) An institution for the care and treatment of the sick that is operated only for those who rely solely on treatment by prayer or spiritual means in accordance with the tenets of a recognized religious denomination.

(ii) Nursing care services that are an integral part of a hospital licensed pursuant to this chapter.

11. "Unprofessional conduct" includes:

(a) Dishonesty, fraud, incompetency or gross negligence in performing administrative duties.

(b) Gross immorality or proselytizing religious views on patients without their consent.

(c) Other abuses of official responsibilities, which may include intimidating or neglecting patients.

§ 36-446.01 Licensure or certification requirements

A. A nursing care institution shall not operate in this state except under the supervision of an administrator licensed pursuant to this article.

B. An assisted living facility shall not operate in this state except under the supervision of a manager certified pursuant to this article.

C. It is unlawful for any person who does not have a license or certificate, or whose license or certificate has lapsed or has been suspended or revoked, to practice or offer to practice skilled nursing facility administration or assisted living facility management or use any title, sign, card or device indicating that such person is an administrator or manager.

§ 36-446.02 Board of examiners; terms; meetings; quorum; effect of vacancies; compensation

A. The board of examiners of nursing care institution administrators and assisted living facility managers is established consisting of eleven members appointed by the governor.

B. The board shall include:

1. One administrator who holds an active license issued pursuant to this article or who is retired.

2. One assisted living facility manager who holds an active license issued pursuant to this article or who is retired.

3. One administrator of a nonprofit or faith-based skilled nursing facility who either holds an active license issued pursuant to this article or who is retired.

4. One administrator of a proprietary skilled nursing facility who either holds an active license issued pursuant to this article or who is retired.

5. Two managers of an assisted living center who either hold an active license issued pursuant to this article or who are retired.

6. One manager of an assisted living home who either holds an active license issued pursuant to this article or who is retired.

7. One public member who represents an organization that advocates for the elderly.

8. One person who is a family member of a resident or a person who was a resident in the previous three years in either a skilled nursing facility or an assisted living facility at the time the person is appointed to the board.

9. One person who is a current or former resident of a skilled nursing facility or an assisted living facility.

10. One public member who represents an organization that advocates for individuals with Alzheimer's disease, dementia or other related neurocognitive diseases or disorders.

C. The board may not have more than three board members who are appointed pursuant to subsection B, paragraphs 1 through 6 of this section and who are retired. Each board member specified in subsection B, paragraphs 1 through 6 of this section who is retired must have had an active license issued pursuant to this article within the previous two years at the time of appointment to the board and may not have had any disciplinary action taken against the person's license or had a license issued pursuant to this article revoked.

D. Board members who are not affiliated with a nursing care institution or an assisted living facility shall not have a direct financial interest in nursing care institutions or assisted living facilities.

E. A board member shall not serve on any other board relating to long-term care during the member's term with the board.

F. The term of a board member automatically ends when that member no longer meets the qualifications for appointment to the board. The board shall notify the governor of the board vacancy.

G. Board members who are not affiliated with a nursing care institution or an assisted living facility shall be appointed for two-year terms. Board members who are the administrator of a nursing care institution or the manager of an assisted living facility shall be appointed for three-year terms.

H. A board member shall not serve for more than two consecutive terms.

I. The board shall meet at least twice a year.

J. A majority of the board members constitutes a quorum.

K. Board members are eligible to receive compensation as determined pursuant to section 38-611 for each day actually spent performing their duties under this chapter.

L. A board member who is absent from three consecutive regular meetings or who fails to attend more than fifty percent of board meetings over the course of one calendar year vacates the board member's position. The board shall notify the governor of the vacancy.

§ 36-446.03 Powers and duties of the board; rules; fees; fingerprinting

A. The board may adopt, amend or repeal reasonable and necessary rules and standards for the administration of this article in compliance with title XIX of the social security act, as amended.

B. The board by rule may adopt nonrefundable fees for the following:

1. Initial application for certification as an assisted living facility manager.

2. Examination for certification as an assisted living facility manager.

3. Issuance of a certificate as an assisted living facility manager, prorated monthly.

4. Biennial renewal of a certificate as an assisted living facility manager.

5. Issuance of a temporary certificate as an assisted living facility manager.

6. Readministering an examination for certification as an assisted living facility manager.

7. Issuance of a duplicate certificate as an assisted living facility manager.

8. Reviewing the sponsorship of continuing education programs, for each credit hour.

9. Late renewal of an assisted living facility manager certificate.

10. Reviewing an individual's request for continuing education credit hours, for each credit hour.

11. Reviewing initial applications for assisted living facility training programs.

12. Annual renewal of approved assisted living facility training programs.

C. The board may elect officers it deems necessary.

D. The board shall apply appropriate techniques, including examinations and investigations, to determine whether a person meets the qualifications prescribed in section 36-446.04.

E. On or before July 1, 2024, in addition to the requirements prescribed in section 36-446.04, the board shall require each applicant for initial nursing care institution administrator licensure or assisted living facility manager certification to submit a full set of fingerprints to the board for a state and federal criminal history records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

F. On its own motion or in response to any complaint against or report of a violation by an administrator of a nursing care institution or a manager of an assisted living facility, the board may conduct investigations, hearings and other proceedings concerning any violation of this article or of rules adopted by the board or by the department.

G. In connection with an investigation or administrative hearing, the board may administer oaths and affirmations, subpoena witnesses, take evidence and require by subpoena the production of documents, records or other information in any form concerning matters the board deems relevant to the investigation or hearing. If any subpoena issued by the board is disobeyed, the board may invoke the aid of any court in this state in requiring the attendance and testimony of witnesses and the production of evidence.

H. Subject to title 41, chapter 4, article 4, the board may employ persons to provide investigative, professional and clerical assistance as required to perform its powers and duties under this article. Compensation for board employees shall be as determined pursuant to section 38-611. The board may contract with other state or federal agencies as required to carry out this article.

I. The board may appoint review committees to make recommendations concerning enforcement matters and the administration of this article.

J. The board by rule may establish a program to monitor licensees and certificate holders who are chemically dependent and who enroll in rehabilitation programs that meet board requirements. The board may take disciplinary action if a licensee or a certificate holder refuses to enter into an agreement to enroll in and complete a board-approved rehabilitation program or fails to abide by that agreement.

K. The board shall adopt and use an official seal.

L. The board shall adopt rules for the examination and licensure of nursing care institution administrators and the examination and certification of assisted living facility managers.

M. The board shall adopt rules governing payment to a person for the direct or indirect solicitation or procurement of assisted living facility patronage.

N. The board must provide the chairpersons of the senate and the house of representatives health committees with copies of all board minutes and executive decisions.

O. The board by rule shall limit by percentage the amount it may increase a fee above the amount of a fee previously prescribed by the board pursuant to this section.

P. The board by rule shall prescribe standards for assisted living facility training programs. The board shall prescribe rules for assisted living facility caregivers that are consistent with the training, competency and test methodology standards developed by the Arizona health care cost containment system administration for in-home direct care workers.

Q. The board may:

1. Grant, deny, suspend or revoke approval of, or place on probation, an assisted living facility training program.

2. Impose a civil penalty on an assisted living facility training program that violates this chapter or rules adopted pursuant to this chapter.

§ 36-446.04 Qualifications; period of validity; exemption

A. The board shall issue a license as a nursing care institution administrator pursuant to its rules to any person who meets the following qualifications:

1. Has satisfactorily completed a course of instruction and training approved by the board that:

(a) Is designed and sufficiently administered to give the applicant knowledge of the proper needs to be served by nursing care institutions.

(b) Includes a thorough background in the laws and rules governing the operation of nursing care institutions and the protection of the interests of the patients in nursing care institutions.

(c) Includes thorough training in elements of good health care facilities administration.

2. Has passed an examination administered by the board designed to test for competency in the subject matter referred to in this subsection.

3. Has met one of the following fingerprinting requirements:

(a) Has a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 and has not been convicted of any felony involving violence or financial fraud.

(b) Has provided proof of the submission of an application for a fingerprint clearance card. An applicant who has been denied a fingerprint clearance card must also provide proof that the applicant qualifies for a good cause exception hearing pursuant to section 41-619.55 and has not been convicted of any felony involving violence or financial fraud.

B. A person who is licensed pursuant to this section must maintain a valid fingerprint clearance card during the valid period of the person's license.

C. The board shall issue a certificate as an assisted living facility manager pursuant to its rules to a person who meets the following qualifications:

1. Has satisfactorily completed a course of instruction and training approved by the board that:

(a) Is designed and sufficiently administered to give the applicant knowledge of the proper needs to be served by an assisted living facility.

(b) Includes a thorough background in the laws governing the operation of assisted living facilities and the protection of the interests of the patients in assisted living facilities.

(c) Includes thorough training in elements of assisted living facility administration.

2. Has passed an examination administered by the board that is designed to test for competency in the subject matter prescribed in this subsection.

3. Provides documentation satisfactory to the board that the applicant has completed two thousand eighty hours of paid work experience in a health related field within the preceding five years as prescribed by board rule.

4. Has met one of the following fingerprinting requirements:

(a) Has a valid fingerprint clearance card issued pursuant to title 41, chapter 12, article 3.1 and has not been convicted of any felony involving violence or financial fraud.

(b) Has provided proof of the submission of an application for a fingerprint clearance card. An applicant who has been denied a fingerprint clearance card must also provide proof that the applicant qualifies for a good cause exception hearing pursuant to section 41-619.55 and has not been convicted of any felony involving violence or financial fraud.

D. Notwithstanding any other provision of this article, beginning July 1, 2021, all new licenses and certifications issued by the board must be approved by both the board and the department of health services.

E. A person who is certified pursuant to this section must maintain a valid fingerprint clearance card during the valid period of the person's certificate.

F. In lieu of the requirements contained in subsection A, paragraph 1 or subsection C, paragraph 1 of this section, an applicant may present satisfactory evidence to the board of sufficient education and training in the areas listed in the respective paragraph.

G. A license is nontransferable and remains in effect until thirty days after the licensee's birthday of an even-numbered year, at which time the license may be renewed if the licensee otherwise complies with this article and the license has not been surrendered, suspended or revoked.

H. A certificate is nontransferable and remains in effect until thirty days after the certificate holder's birthday of an odd-numbered year, at which time the certificate may be renewed if the certificate holder otherwise complies with this article and the certificate has not been surrendered, suspended or revoked.

I. This section does not apply to managers of adult foster care homes as defined in section 36-401.

§ 36-446.05 Reciprocity; present administrators

The board may issue a nursing care institution administrator's license, without examination or with partial examination, to any person who holds a current license from another state or territory of the United States provided the standards for licensure in such other state or territory of the United States are at least substantially equivalent to those prevailing in this state, and provided that the applicant is otherwise qualified.

§ 36-446.06 Temporary licenses and certificates

A. The board may issue a temporary nursing care institution administrator's license or temporary assisted living facility manager's certificate to individuals who are determined to meet standards established by the board and may revoke or suspend temporary licenses or certificates previously issued by the board in any case in which the individual holding a license or certificate is determined to have substantially failed to conform to the requirements of such standards during the term of the temporary license or certificate.

B. A temporary license or certificate is automatically revoked if the licensee or certificate holder fails either the state or national examination during the term of the license or certificate.

C. Temporary licenses or certificates may be issued without examination, for a single nonrenewable period of one hundred fifty days, to a qualified individual for the purpose of enabling the individual to fill a nursing care institution administrator or assisted living facility manager position. Qualifications for a temporary license or certificate shall include the ability to meet such other standards as are established by the board.

D. An applicant for a temporary license or certificate shall not have failed a state or national examination either before or after applying for the temporary license or certificate.

§ 36-446.07 Disciplinary actions; grounds for disciplinary action; renewal; continuing education; inactive status; hearings; settlement; judicial review; admission by default; military members

A. The board may suspend or revoke the license of any nursing care institution administrator, censure or place on probation any licensed nursing care institution administrator or deny a license as a nursing care institution administrator to any person for any of the following reasons:

1. Conviction of a felony or conviction of any misdemeanor involving moral turpitude.

2. Obtaining or renewing a license by fraud or deceit.

3. Unprofessional conduct.

4. Practicing without biennial licensure.

5. Addiction to or dependency on drugs or alcohol.

6. Wrongful transfer of a license or falsely impersonating another licensee.

7. Unauthorized disclosure of information relating to a patient or a patient's records.

8. Payment to any person for solicitation or procurement, either directly or indirectly, of nursing home patronage.

9. Violation of this article or a rule adopted pursuant to this article.

B. The board may suspend or revoke the certificate of an assisted living facility manager, censure or place on probation an assisted living facility manager or deny a certificate as an assisted living facility manager to a person for any of the following reasons:

1. Conviction of a felony or conviction of a misdemeanor involving moral turpitude.

2. Obtaining or renewing a certificate by fraud or deceit.

3. Unprofessional conduct.

4. Practicing without biennial certification.

5. Addiction to or dependency on drugs or alcohol.

6. Wrongful transfer of a certificate or falsely impersonating another certificate holder.

7. Unauthorized disclosure of information relating to a resident or a resident's records.

8. Violation of this article or a rule adopted pursuant to this article.

C. The board may impose a civil penalty in an amount of not to exceed five hundred dollars on any nursing care institution administrator or assisted living facility manager who violates this article or any rule adopted pursuant to this article. Actions to enforce the collection of these penalties shall be brought in the name of this state by the attorney general or the county attorney in the justice court or the superior court in the county in which the violation occurred. Penalties imposed under this section are in addition to and not in limitation of other penalties imposed pursuant to this article.

D. The board may file a letter of concern if, in the opinion of the board, while there is insufficient evidence to support direct action against the license of the administrator or the certificate of the manager, there is sufficient evidence for the board to notify the administrator or manager of its concern.

E. Every holder of a nursing care institution administrator's license shall renew it biennially by making application to the board. The renewals shall be granted as a matter of course if the holder has successfully completed at least fifty hours of continuing education every two years as established by the board in its rules, unless the applicant has acted or failed to act in such a manner or under such circumstances as would constitute grounds for taking any of the disciplinary actions permitted by this section. The board shall maintain a log of each complaint substantiated by the board or deficiency report concerning an administrator and shall retain in the administrator's file a copy of each such complaint or report and the action taken on it, if any. The board shall review and consider the administrator's file in determining whether to renew the administrator's license.

F. Except as provided in subsection R of this section, every holder of an assisted living facility manager's certificate shall renew it biennially by making application to the board. The renewals shall be granted as a matter of course if the holder has successfully completed continuing education every two years as established by the board in its rules, unless the applicant has acted or failed to act in a manner or under circumstances that constitute grounds for taking disciplinary action permitted by this section. The board shall maintain a log of each complaint substantiated by the board or deficiency report concerning a manager and shall retain in the manager's file a copy of each complaint or report and the action taken on it, if any. The board shall review and consider the manager's file in determining whether to renew the manager's certificate.

G. Except as provided in subsection R of this section, failure on the part of any licensed nursing care institution administrator or certified assisted living facility manager to furnish evidence of having attended the required continuing education hours during the preceding two years shall preclude renewal of the license or certificate unless the continuing education requirement is fulfilled within one hundred twenty days.

H. On written request to the board, a nursing care institution administrator in good standing may cause the administrator's name and license to be transferred to an inactive list. Any nursing care institution administrator on inactive license status shall pay a license renewal fee. On written request to the board, and subsequent approval by the board, a nursing care institution administrator on inactive license status may resume active license status on meeting twenty-five hours of continuing education requirements within six months and payment of the current fee.

I. On written request to the board, the board shall transfer an assisted living facility manager in good standing to an inactive list. An assisted living facility manager on inactive certificate status shall pay a certificate renewal fee prescribed by the board of not more than one hundred dollars every two years. On written request to the board, and subsequent approval by the board, an assisted living facility manager on inactive certificate status may resume active certificate status on meeting requirements for six hours of continuing education within six months and payment of the current fee.

J. Suspension, revocation or denial of renewal of a license or certificate or censure or probation of a licensee or certificate holder by the board becomes effective only on the board's first giving the licensee or certificate holder prior written notice and affording the licensee or certificate holder the right to request a hearing within thirty-five days of the receipt of notice. A hearing is not required before the denial of an original application for a license or a certificate. All hearings shall be conducted pursuant to title 41, chapter 6, article 10.

K. Any person wishing to make a complaint against a licensee or certificate holder under this article shall file a written complaint with the board within one year from the date of the action causing the complaint. If the board determines that the charges made in the complaint are sufficient, if true, to warrant suspension or revocation of a license or certificate issued under this article or censure or probation of a licensee or certificate holder under this article, it shall issue an order fixing the time and place for a hearing and requiring the licensee or certificate holder complained against to appear and answer the complaint. The order shall have affixed to it a copy of the complaint, and both shall be served on the licensee or certificate holder either personally or by certified mail sent to the licensee's or the certificate holder's last known address at least thirty-five days before the date set for the hearing. All hearings shall be conducted pursuant to title 41, chapter 6, article 10.

L. The board and an administrator or manager may enter into a settlement of any matter under investigation either before or after a notice of the hearing has been issued if the board determines that the proposed settlement adequately protects the public safety, health and welfare. The board shall record the terms of each settlement entered into and shall make the record available for public inspection.

M. Except as provided in section 41-1092.08, subsection H, final decisions of the board are subject to judicial review pursuant to title 12, chapter 7, article 6.

N. If the board has initiated an investigation pursuant to this section, the board may continue the investigation and discipline the person under investigation even if that person resigns from practice after the board has initiated the investigation.

O. A licensee or certificate holder shall respond in writing to the board within thirty-five days after the board serves the complaint and notice of a formal hearing by certified mail. Service is complete on the date the board places the notice in the mail. The board shall consider a licensee's or certificate holder's failure to respond to the notice within thirty-five days as an admission by default to the allegations stated in the complaint. The board may then take disciplinary action against the licensee or certificate holder without conducting a formal hearing.

P. The board may set aside an admission by default if a licensee or certificate holder shows good cause. A licensee or certificate holder who applies to the board to set aside an admission by default shall demonstrate the following to the satisfaction of the board:

1. The failure to respond to the notice of the board was due to excusable neglect.

2. The licensee or certificate holder has a meritorious defense.

3. The licensee or certificate holder made prompt application to the board for relief.

Q. The board shall not consider an application to set aside an admission by default filed later than one hundred eighty days after the board's entry of the admission by default.

R. A license or certificate issued pursuant to this chapter to any member of the Arizona national guard or the United States armed forces reserves shall not expire while the member is serving on federal active duty and shall be extended one hundred eighty days after the member returns from federal active duty, provided that the member, or the legal representative of the member, notifies the board of the federal active duty status of the member. A license or certificate issued pursuant to this chapter to any member serving in the regular component of the United States armed forces shall be extended one hundred eighty days from the date of expiration, provided that the member, or the legal representative of the member, notifies the board of the federal active duty status of the member. If the license or certificate is renewed during the applicable extended time period, the member is responsible only for normal fees and activities relating to renewal of the license and shall not be charged any additional costs such as late fees or delinquency fees. The member, or the legal representative of the member, shall present to the board a copy of the member's official military orders, a redacted military identification card or a written verification from the member's commanding officer before the end of the applicable extended time period in order to qualify for the extension.

S. A license or certificate issued pursuant to this chapter to any member of the Arizona national guard, the United States armed forces reserves or the regular component of the United States armed forces shall not expire and shall be extended one hundred eighty days from the date the military member is able to perform activities necessary under the license or certificate if the member both:

1. Is released from active duty service.

2. Suffers an injury as a result of active duty service that temporarily prevents the member from being able to perform activities necessary under the license, certificate or registration.

§ 36-446.08 Nursing care institution administrators' licensing and assisted living facility managers' certification fund; investment of fund monies

(L24, Ch. 222, sec. 53. Eff. until 7/1/28)

A. The nursing care institution administrators' licensing and assisted living facility managers' certification fund is established.

B. Pursuant to sections 35-146 and 35-147, the board shall deposit fifteen percent of all monies collected pursuant to this article in the state general fund and deposit the remaining eighty-five percent in the nursing care institution administrators' licensing and assisted living facility managers' certification fund. All monies derived from civil penalties collected pursuant to section 36-446.07, subsection C shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

C. Monies deposited in the nursing care institution administrators' licensing and assisted living facility managers' certification fund are subject to the provisions of section 35-143.01.

D. On notice from the board, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 36-446.08 (Version 2) Nursing care institution administrators' licensing and assisted living facility managers' certification fund; investment of fund monies

(L24, Ch. 222, sec. 54. Eff. 7/1/28)

A. The nursing care institution administrators' licensing and assisted living facility managers' certification fund is established.

B. Pursuant to sections 35-146 and 35-147, the board shall deposit ten percent of all monies collected pursuant to this article in the state general fund and deposit the remaining ninety percent in the nursing care institution administrators' licensing and assisted living facility managers' certification fund. All monies derived from civil penalties collected pursuant to section 36-446.07, subsection C shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

C. Monies deposited in the nursing care institution administrators' licensing and assisted living facility managers' certification fund are subject to the provisions of section 35-143.01.

D. On notice from the board, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 36-446.09 Violations; classification

A. Any person who manages, directs and controls the operation of a nursing care institution or an assisted living facility without a current and valid license or certificate as required by this article or who otherwise violates any provisions of this article is guilty of a class 2 misdemeanor. Each day of violation shall constitute a separate offense.

B. Action taken under subsection A shall not be a bar to enforcement of this article and the standards and rules issued and adopted pursuant to this article, by injunction or other appropriate remedy, and the board may institute and maintain in the name of this state any such enforcement proceeding.

§ 36-446.10 Confidentiality of records; release of complainant's name and nature of complaint

A. Except as provided in subsection B, all records concerning a pending investigation, examination materials, records of examination grading and applicants' performance and transcripts of educational institutions concerning applicants are confidential and are not public records. "Records of applicants' performance" does not include records of whether an applicant passed or failed an examination.

B. During a pending investigation, the board shall inform the administrator or manager who is the subject of the complaint of the name of the complainant and the nature of the complaint if so requested.

§ 36-446.11 Relief from civil liability

Members, employees and agents of the board and members of review committees shall not be held civilly liable for acts done or actions taken by any of these persons if such persons act in good faith following the requirements of this article. A person who in good faith reports or provides information to the board shall not be held civilly liable as a result of doing so.

§ 36-446.12 Fees

A. The board by rule shall establish nonrefundable fees and penalties for the following for nursing care institution administrators:

1. Initial application.

2. Examination for licensure as a nursing care institution administrator.

3. A license as a nursing care institution administrator.

4. Renewing an active biennial license.

5. Renewing an inactive biennial license.

6. A temporary license as a nursing care institution administrator.

7. Readministering the state examination.

8. Readministering the national examination.

9. A duplicate license.

10. Late renewal of a license.

11. Certifying licensure status.

12. Reviewing the sponsorship of continuing education programs, for each credit hour.

13. Reviewing an individual's request for continuing education credit hours, for each credit hour.

B. The board shall prorate on a monthly basis fees paid for an initial license as a nursing care institution administrator.

C. The board by rule shall limit by percentage the amount it may increase a fee above the amount of a fee previously prescribed by the board pursuant to this section.

§ 36-446.13 Unlawful act; unlicensed operation; injunction

A. On application by the board, the superior court may issue an injunction to enjoin the activities of a person who purports to be licensed pursuant to this article or who is engaging in the activities of a nursing care institution administrator without a license.

B. In a petition for injunction filed pursuant to this section, it is sufficient to charge that the respondent on a certain day in a named county engaged in the activities of a nursing care institution administrator without a license and without being exempt from the licensing requirements of this article.

C. For the purposes of this section, damage or injury is presumed.

D. A petition for an injunction to enjoin unlicensed activities shall be filed in the name of this state in the superior court in the county where the respondent resides or may be found or in Maricopa county. On request of the board, the attorney general shall file the injunction.

E. Issuance of an injunction does not relieve the respondent from being subject to other proceedings as provided in this article.

§ 36-446.14 Referral agencies; assisted living facilities and assisted living homes; disclosure; acknowledgement; fee; notice; requirements; civil penalty; definitions

A. A referral agency shall disclose, in the form prescribed by subsection D of this section, to any prospective resident or representative of a prospective resident at the time or before any referral is made for care at an assisted living facility or assisted living home all of the following:

1. The existence of any current business relationship or any common ownership or control and any other financial, business, management or familial relationship that exists between the referral agency and the assisted living facility or assisted living home.

2. That the assisted living facility or assisted living home pays a fee to the referral agency in connection with the referral.

3. The amount of the fee, if determined, or a good faith estimate of the fee, if not determined, that the assisted living facility or assisted living home will pay to the referral agency. The referral agency may describe the fee as a dollar amount or as a percentage of the prospective resident's first month's rent and care charges at the facility or home.

B. After the first instance of the referral agency providing the disclosure required by subsection A of this section, the referral agency shall request from the prospective resident or representative of a prospective resident an acknowledgement of receiving the disclosure in the same manner and form in which the disclosure was delivered.

C. The prospective resident may terminate all services of the referral agency for the prospective resident at any time, including the use of the prospective resident's personal information, by providing a written or electronic termination notice to the referral agency. If the prospective resident delivers a termination notice, the referral agency is not entitled to any fee for the resident's move-in after the date of the termination notice unless either of the following applies:

1. The assisted living facility or assisted living home chosen by the resident within twelve months after the date of termination was specifically identified and referred to the resident after evaluating the prospective resident's profile and requests before the resident delivered the notice of termination.

2. The referral agency provides documentation to the assisted living facility or assisted living home that the resident communicated with the referral agency for referral services before the resident's admission to the assisted living facility or assisted living home.

D. The referral agency's written, electronic or oral disclosure shall be in the following format and, if written, shall be in fourteen-point font type:

Arizona law requires that we provide you with the following disclosure notice.

We are in the business of referring residents to assisted living facilities and assisted living homes. We will be paid by the facility or home if you move into one of the referred facilities or homes. The fee we receive from the facility or home into which you move typically ranges from () to () percent of your first month's rent and care charges or from ($) to ($). We (do/do not) have a current business relationship (but/and) we (do/do not) have a common ownership or control in, or any other financial, business, management or familial relationship with, (any) (one or more) of the homes and facilities to which we are referring you.

By providing us with a written or electronic notice, you have the right to terminate our services to you at any time, including our use of your personal information. If you terminate our services, we will not be entitled to any fee for any move-in you make after the date of the termination notice unless either:

1. The facility or home you choose within the next twelve months is one that we specifically identify and refer to you after we evaluate your profile and requests but before we receive your notice of termination.

2. You communicate with us before you move into the facility or home.

E. Within fourteen days after a resident is admitted to an assisted living facility or assisted living home, the facility or home shall notify the referral agency of the resident's admission if the facility or home is contracted with the referral agency. Not later than fourteen days after receiving notice of the resident's admission, the referral agency shall provide the assisted living facility or assisted living home with a written or electronic copy or recording of the disclosure made to the resident and the resident's acknowledgement of receiving the disclosure as prescribed in subsections B and D of this section, along with the date and time of the disclosure to the resident. The assisted living facility or assisted living home shall maintain a copy of the disclosure for as long as the resident is at the facility or home. The referral agency shall maintain a copy of the disclosure and acknowledgement for one year. The assisted living facility or assisted living home shall not pay any referral fee associated with a resident until the facility or home receives the written or electronic copy or recording of the disclosure made to the resident and the resident's acknowledgement of receiving the disclosure provided and maintained in the same manner and form.

F. A referral agency that violates this section is subject to a civil penalty of up to $1,000 for each violation. The attorney general or a county attorney may institute a proceeding in superior court to recover the civil penalty under this subsection and to restrain and enjoin a violation of this section. Any civil penalty recovered pursuant to this subsection shall be deposited in the general fund of the jurisdiction that prosecuted the violation.

G. For the purposes of this section:

1. "Electronically" includes an audio recording that conforms with the Arizona rules of evidence, that is maintained by the referral agency and that is transmitted to the assisted living facility or assisted living home and the resident or the resident's representative in a format that can be downloaded.

2. "Referral agency":

(a) Means a person or entity that provides referrals for a fee that is collected from either the resident or the assisted living facility or assisted living home.

(b) Does not include either:

(i) An assisted living facility or assisted living home, or its employees.

(ii) A resident, a resident's family member or a patron of an assisted living facility or assisted living home who refers a prospective resident to an assisted living facility or assisted living home and receives a discount or other remuneration from the assisted living facility or assisted living home.

§ 36-446.15 Assisted living facility caregivers; training and competency requirements; medication administration; testing

A. Notwithstanding any other law, a person who successfully completes the training and competency requirements developed by the Arizona health care cost containment system administration for in-home direct care workers satisfies the training requirements for assisted living facility caregivers, except for medication administration training required by the assisted living facility caregiver's scope of practice.

B. An individual who meets the requirements specified in subsection A of this section and who registers for a medication administration examination is required to take and successfully complete only the part of the assisted living facility caregiver examination that covers the subject of medication administration.

C. The testing of an individual for medication administration competency:

1. Shall be conducted in accordance with the testing standards adopted by the board.

2. May be conducted by a training school approved by the board or by the assisted living facility that provided the training for the individual.

§ 36-446.16 Assisted living facility caregivers; training requirements; board standards; definition

A. Except as provided in section 36-446.15, an individual shall successfully complete either of the following requirements for certification as an assisted living facility caregiver:

1. Both of the following:

(a) Sixty-two hours of on-the-job training under the direct supervision of any of the following health professionals:

(i) A physician who is licensed pursuant to title 32, chapter 13 or 17.

(ii) A registered nurse practitioner, registered nurse or licensed practical nurse who is licensed pursuant to title 32, chapter 15.

(iii) A pharmacist who is licensed pursuant to title 32, chapter 18.

(iv) A physician assistant who is licensed pursuant to title 32, chapter 25.

(v) A certified assisted living facility manager with at least five years of experience. Only thirty-one of the sixty-two hours of on-the-job training may be under the direct supervision of a certified assisted living facility manager.

(b) Pass the board-required examination with a score of at least seventy-five percent.

2. The board's required curriculum and examination for assisted living facility caregiver certification.

B. The board shall prescribe standards by rule for the on-the-job training prescribed in subsection A, paragraph 1, subdivision (a) of this section.

C. For the purposes of this section, "direct supervision" means the on-site, in-view observation and guidance of a caregiver who is in training by the supervising health professional.

Article 7 Nursing Care Institutions

§ 36-447.01 Nursing care institutions; notification of services; screening; annual reviews

A. A nursing care institution, before admitting a patient, shall give the patient and his representative a booklet developed by the Arizona health care cost containment system administration pursuant to section 36-2936 that describes in clear and simple language the availability of services and benefits from the Arizona long-term care system pursuant to chapter 29, article 2 of this title. The booklet shall:

1. Explain the availability of preadmission screening that shall assess the functional, medical, nursing and social needs of the patient and make recommendations on services which meet the patient's needs as identified by the preadmission screening assessment.

2. Describe the availability of public and private services appropriate to meet the patient's needs in institutions and alternatives to institutions.

3. Explain financial eligibility standards for the Arizona long-term care system and its effect on separate and community property.

B. All nursing care institutions shall provide the booklet described in subsection A of this section to all of their existing patients who are not currently enrolled and receiving services pursuant to chapter 29, article 2 of this title or designated representative, regardless of the manner by which any patient's cost of care is paid.

C. A nursing care institution certified pursuant to title XIX of the social security act shall cooperate with the Arizona health care cost containment system administration in conducting preadmission screening and annual reviews pursuant to the omnibus budget reconciliation act of 1987 (P.L. 100-203) as amended by the medicare catastrophic coverage act of 1988.

§ 36-447.02 Nursing care institutions; therapeutic substitutions

A. A nursing care institution's quality assessment and assurance committee established pursuant to 42 Code of Federal Regulations section 483.75(o) may establish written guidelines or procedures for making therapeutic substitutions if the committee membership also includes a pharmacist who is licensed in this state. If a nursing care institution does not have a quality assessment and assurance committee, the nursing care institution may establish a committee for the purpose of establishing written guidelines or procedures for making therapeutic substitutions that consists of the same members as required under 42 Code of Federal Regulations section 483.75(o) and includes a pharmacist who is licensed pursuant to title 32, chapter 18.

B. A pharmacy used by a nursing care institution may make therapeutic substitutions consistent with the institution's written guidelines or procedures if the use of the therapeutic substitution has been approved for a patient during the period of the patient's stay in the nursing care institution by the patient's health care provider who is licensed under title 32, who has prescription authority under title 32 and who has prescribed a medication for the patient that the patient is currently taking.

Article 8 Pain Management Clinics

§ 36-448.01 Definitions

In this article, unless the context otherwise requires:

1. "Medication-assisted treatment" has the same meaning prescribed in section 32-3201.01.

2. "Pain management clinic":

(a) Means a health care institution or a private office or clinic of a health care provider licensed under title 32 in which a majority of the facility's patients in any month are prescribed opioids, benzodiazepines, barbiturates or carisoprodol, not including for medication-assisted treatment, by a health care provider from the health care institution or private office or clinic for more than ninety days in a twelve-month period.

(b) Does not include a hospital, urgent care center, ambulatory surgical center, hospice facility or nursing care institution.

§ 36-448.02 Pain management clinics; licensure requirements; rules

A. Beginning January 1, 2019, a pain management clinic shall meet the same licensure requirements as prescribed in article 2 of this chapter for health care institutions. At the time of licensure, a pain management clinic shall submit to the director all documentation required by this article.

B. The department shall adopt rules that prescribe the following for pain management clinics:

1. Informed consent requirements.

2. The responsibilities of the medical director.

3. Record maintenance.

4. Reporting requirements.

5. Physical examination requirements.

C. Within sixty days after a health care institution or a private office or clinic of a health care provider that is licensed pursuant to title 32 meets the definition of pain management clinic, the health care institution or private office or clinic shall apply for licensure pursuant to this section.

D. Each pain management clinic shall:

1. On or before each anniversary of the issue date of the pain management clinic's license, submit to the director all documentation required by this article.

2. Comply with all department rules that govern pain management clinics.

3. Have a medical director who is a physician licensed pursuant to title 32, chapter 13 or 17 and who is under an unrestricted and unencumbered license or a registered nurse practitioner who is licensed pursuant to title 32, chapter 15, who has advanced pain certification from a nationally recognized accreditation or certification entity and who is under an unrestricted and unencumbered license.

Article 9 Recovery Care Centers

§ 36-448.51 Definitions

In this article, unless the context otherwise requires:

1. "Recovery care center" means a health care institution or subdivision of a health care institution that provides medical and nursing services limited to recovery care services.

2. "Recovery care services" means postsurgical and postdiagnostic medical and nursing services provided to patients for whom, in the opinion of the attending physician, it is reasonable to expect an uncomplicated recovery. Such patients are not expected to require intensive care services, coronary care services, or critical care services. Recovery care services do not include surgery services, radiology services, pediatric services or obstetrical services.

§ 36-448.52 Recovery care centers; licensure

A. Except as otherwise provided in this article, a recovery care center shall meet the same licensing requirements as prescribed in article 2 of this chapter for health care institutions.

B. A recovery care center that holds an unclassified health care facility license issued before January 1, 1992 may retain that classification until January 1, 1993 subject to its compliance with the laws and rules relating to unclassified health care facilities. Beginning January 1, 1993, these facilities shall comply with the requirements for recovery care centers and applicable rules governing recovery care centers.

§ 36-448.53 Recovery care centers; administration; bylaws; administrator; duties; notification

A. The governing authority of a recovery care center shall adopt bylaws that identify the purposes and basic governance of the recovery care center. The governing authority shall appoint an administrator for the management of the recovery care center. The administrator is directly responsible to the governing authority for the management and operation of the recovery care center and shall act as a liaison between the governing authority and the medical staff.

B. The administrator shall maintain written policies regarding organization, administrative authority and responsibility in order to provide the recovery care center with administrative direction.

C. The governing authority of the recovery care center shall notify the department of any change in ownership or administrator at least thirty days before the effective date of the change. However, unanticipated changes may be reported immediately after they occur.

§ 36-448.54 Admission of patients

A. A recovery care center shall maintain written admission and discharge policies that are consistent with appropriate patient care and with the purposes of the recovery care center as established in its bylaws adopted pursuant to section 36-448.53.

B. An employee authorized to accept patients for admission and to make administrative decisions concerning their disposition shall be available at all times.

C. Patients shall be provided with identification at the time of their admission.

§ 36-448.55 Medical staff; requirements; nursing care

A. A recovery care center shall have an organized medical staff responsible to the governing authority for the quality of medical care provided to patients and for the ethical and professional practices of its members. Subject to final action by the governing authority, the medical staff shall adopt bylaws and related procedures for the proper conduct of its activities. The medical staff of a recovery care center shall consist of two or more physicians.

B. A member of the medical staff shall admit patients to the recovery care center in accordance with medical staff bylaws, and patients shall be under the general care of a physician.

C. The medical staff is responsible for assuring the availability of physician services in the event of an emergency.

D. A recovery care center shall have an organized nursing service to provide nursing care to meet the needs of each patient. A recovery care center shall employ a registered nurse as director of nursing who is present at least forty hours each week when patients are in the facility. At least one registered nurse and one other nursing personnel shall be on duty at all times when there are patients in the facility. The nursing department shall be staffed at all times based on the number of patients and their health care needs. A staffing plan shall be maintained that includes individual staffing patterns for each nursing unit.

Article 10 Abortion Clinics

§ 36-449.01 Definitions

In this article, unless the context otherwise requires:

1. "Abortion" means the use of any means with the intent to terminate a woman's pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus. Abortion does not include birth control devices or oral contraceptives.

2. "Abortion clinic" means a facility, other than a hospital, in which five or more first trimester abortions in any month or any second or third trimester abortions are performed.

3. "Bodily remains" has the same meaning prescribed in section 36-2151.

4. "Director" means the director of the department of health services.

5. "Final disposition" has the same meaning prescribed in section 36-301.

6. "Medication abortion" means the use of any medication, drug or other substance that is intended to cause or induce an abortion.

7. "Perform" includes the initial administration of any medication, drug or other substance intended to cause or induce an abortion.

8. "Surgical abortion" has the same meaning prescribed in section 36-2151.

9. "Viable fetus" has the same meaning prescribed in section 36-2301.01.

§ 36-449.02 Abortion clinics; licensure requirements; rules; inspections; standing to intervene; legal counsel

A. Beginning on April 1, 2000, an abortion clinic shall meet the same licensure requirements as prescribed in article 2 of this chapter for health care institutions. At the time of licensure, an abortion clinic shall submit to the director all documentation required by this article, including verification that the clinic's physicians who are required to be available have admitting privileges at a health care institution as required by section 36-449.03, subsection C, paragraph 3.

B. On or before the anniversary of the issue date of an abortion clinic's license, the abortion clinic shall submit to the director all documentation required by this article.

C. Beginning on April 1, 2000, abortion clinics shall comply with department requirements for abortion clinics and department rules that govern abortion clinics.

D. If the director determines that there is reasonable cause to believe an abortion clinic is not adhering to the licensing requirements of this article or any other law or rule concerning abortion, the director and any duly designated employee or agent of the director, including county health representatives and county or municipal fire inspectors, consistent with standard medical practices, may enter on and into the premises of the abortion clinic that is licensed or required to be licensed pursuant to this article during regular business hours of the abortion clinic to determine compliance with this article, rules adopted pursuant to this article, local fire ordinances or rules and any other law or rule relating to abortion.

E. An application for licensure pursuant to this article constitutes permission for, and complete acquiescence in, an entry or inspection of the premises during the pendency of the application and, if licensed, while the abortion clinic is licensed.

F. If an inspection conducted pursuant to this section reveals that an abortion clinic is not adhering to the licensing requirements prescribed pursuant to this article or any other law or rule concerning abortion, the director may take action authorized by this article.

G. An abortion clinic whose license has been suspended or revoked pursuant to this article or section 36-424 is subject to inspection on application for relicensure or reinstatement of the license.

H. In any proceeding in which the constitutionality, legality or application of this section is challenged, the attorney general or any county or city attorney who wishes to defend the law has the right to intervene as a party and is deemed to have proper standing in the matter. The only objection that may be raised to a motion to intervene as of right pursuant to this subsection is that the proposed intervenor does not have a good faith intention to defend the law. Any party or proposed intervenor may raise this objection. Notwithstanding section 41-192, the department may employ legal counsel and make an expenditure or incur an indebtedness for legal services for the purposes of defending this section.

§ 36-449.03 Abortion clinics; rules; civil penalties

A. The director shall adopt rules for an abortion clinic's physical facilities. At a minimum these rules shall prescribe standards for:

1. Adequate private space that is specifically designated for interviewing, counseling and medical evaluations.

2. Dressing rooms for staff and patients.

3. Appropriate lavatory areas.

4. Areas for preprocedure hand washing.

5. Private procedure rooms.

6. Adequate lighting and ventilation for abortion procedures.

7. Surgical or gynecologic examination tables and other fixed equipment.

8. Postprocedure recovery rooms that are supervised, staffed and equipped to meet the patients' needs.

9. Emergency exits to accommodate a stretcher or gurney.

10. Areas for cleaning and sterilizing instruments.

11. Adequate areas to securely store medical records and necessary equipment and supplies.

12. The display in the abortion clinic, in a place that is conspicuous to all patients, of the clinic's current license issued by the department.

B. The director shall adopt rules to prescribe abortion clinic supplies and equipment standards, including supplies and equipment that are required to be immediately available for use or in an emergency. At a minimum these rules shall:

1. Prescribe required equipment and supplies, including medications, required to conduct, in an appropriate fashion, any abortion procedure that the medical staff of the clinic anticipates performing and to monitor the progress of each patient throughout the procedure and recovery period.

2. Require that the number or amount of equipment and supplies at the clinic is adequate at all times to ensure sufficient quantities of clean and sterilized durable equipment and supplies to meet the needs of each patient.

3. Prescribe required equipment, supplies and medications that shall be available and ready for immediate use in an emergency and requirements for written protocols and procedures to be followed by staff in an emergency, such as the loss of electrical power.

4. Prescribe required equipment and supplies for required laboratory tests and requirements for protocols to calibrate and maintain laboratory equipment at the abortion clinic or operated by clinic staff.

5. Require ultrasound equipment.

6. Require that all equipment is safe for the patient and the staff, meets applicable federal standards and is checked annually to ensure safety and appropriate calibration.

C. The director shall adopt rules relating to abortion clinic personnel. At a minimum these rules shall require that:

1. The abortion clinic designate a medical director of the abortion clinic who is licensed pursuant to title 32, chapter 13, 17 or 29.

2. Physicians performing abortions are licensed pursuant to title 32, chapter 13 or 17, demonstrate competence in the procedure involved and are acceptable to the medical director of the abortion clinic.

3. A physician is available:

(a) For a surgical abortion who has admitting privileges at a health care institution that is classified by the director as a hospital pursuant to section 36-405, subsection B and that is within thirty miles of the abortion clinic.

(b) For a medication abortion who has admitting privileges at a health care institution that is classified by the director as a hospital pursuant to section 36-405, subsection B.

4. If a physician is not present, a registered nurse, nurse practitioner, licensed practical nurse or physician assistant is present and remains at the clinic when abortions are performed to provide postoperative monitoring and care, or monitoring and care after inducing a medication abortion, until each patient who had an abortion that day is discharged.

5. Surgical assistants receive training in counseling, patient advocacy and the specific responsibilities of the services the surgical assistants provide.

6. Volunteers receive training in the specific responsibilities of the services the volunteers provide, including counseling and patient advocacy as provided in the rules adopted by the director for different types of volunteers based on their responsibilities.

D. The director shall adopt rules relating to the medical screening and evaluation of each abortion clinic patient. At a minimum these rules shall require:

1. A medical history, including the following:

(a) Reported allergies to medications, antiseptic solutions or latex.

(b) Obstetric and gynecologic history.

(c) Past surgeries.

2. A physical examination, including a bimanual examination estimating uterine size and palpation of the adnexa.

3. The appropriate laboratory tests, including:

(a) Urine or blood tests for pregnancy performed before the abortion procedure.

(b) A test for anemia.

(c) Rh typing, unless reliable written documentation of blood type is available.

(d) Other tests as indicated from the physical examination.

4. An ultrasound evaluation for all patients. The rules shall require that if a person who is not a physician performs an ultrasound examination, that person shall have documented evidence that the person completed a course in operating ultrasound equipment as prescribed in rule. The physician or other health care professional shall review, at the request of the patient, the ultrasound evaluation results with the patient before the abortion procedure is performed, including the probable gestational age of the fetus.

5. That the physician is responsible for estimating the gestational age of the fetus based on the ultrasound examination and obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule and shall write the estimate in the patient's medical history. The physician shall keep original prints of each ultrasound examination of a patient in the patient's medical history file.

E. The director shall adopt rules relating to the abortion procedure. At a minimum these rules shall require:

1. That medical personnel is available to all patients throughout the abortion procedure.

2. Standards for the safe conduct of abortion procedures that conform to obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule.

3. Appropriate use of local anesthesia, analgesia and sedation if ordered by the physician.

4. The use of appropriate precautions, such as establishing intravenous access at least for patients undergoing second or third trimester abortions.

5. The use of appropriate monitoring of the vital signs and other defined signs and markers of the patient's status throughout the abortion procedure and during the recovery period until the patient's condition is deemed to be stable in the recovery room.

6. For abortion clinics performing or inducing an abortion for a woman whose unborn child is the gestational age of twenty weeks or more, minimum equipment standards to assist the physician in complying with section 36-2301. For the purposes of this paragraph, "abortion" and "gestational age" have the same meanings prescribed in section 36-2151.

F. The director shall adopt rules relating to the final disposition of bodily remains. At a minimum these rules shall require that:

1. The final disposition of bodily remains from a surgical abortion be by cremation or interment.

2. For a surgical abortion, the woman on whom the abortion is performed has the right to determine the method and location for final disposition of bodily remains.

G. The director shall adopt rules that prescribe minimum recovery room standards. At a minimum these rules shall require that:

1. For a surgical abortion, immediate postprocedure care, or care provided after inducing a medication abortion, consists of observation in a supervised recovery room for as long as the patient's condition warrants.

2. The clinic arrange hospitalization if any complication beyond the management capability of the staff occurs or is suspected.

3. A licensed health professional who is trained in managing the recovery area and who is capable of providing basic cardiopulmonary resuscitation and related emergency procedures remains on the premises of the abortion clinic until all patients are discharged.

4. For a surgical abortion, a physician with admitting privileges at a health care institution that is classified by the director as a hospital pursuant to section 36-405, subsection B and that is within thirty miles of the abortion clinic remains on the premises of the abortion clinic until all patients are stable and are ready to leave the recovery room and to facilitate the transfer of emergency cases if hospitalization of the patient or viable fetus is necessary. A physician shall sign the discharge order and be readily accessible and available until the last patient is discharged.

5. A physician discusses RhO(d) immune globulin with each patient for whom it is indicated and ensures that it is offered to the patient in the immediate postoperative period or that it will be available to her within seventy-two hours after completion of the abortion procedure. If the patient refuses, a refusal form approved by the department shall be signed by the patient and a witness and included in the medical record.

6. Written instructions with regard to postabortion coitus, signs of possible problems and general aftercare are given to each patient. Each patient shall have specific instructions regarding access to medical care for complications, including a telephone number to call for medical emergencies.

7. There is a specified minimum length of time that a patient remains in the recovery room by type of abortion procedure and duration of gestation.

8. The physician ensures that a licensed health professional from the abortion clinic makes a good faith effort to contact the patient by telephone, with the patient's consent, within twenty-four hours after a surgical abortion to assess the patient's recovery.

9. Equipment and services are located in the recovery room to provide appropriate emergency resuscitative and life support procedures pending the transfer of the patient or viable fetus to the hospital.

H. The director shall adopt rules that prescribe standards for follow-up visits. At a minimum these rules shall require that:

1. For a surgical abortion, a postabortion medical visit is offered and, if requested, scheduled for three weeks after the abortion, including a medical examination and a review of the results of all laboratory tests. For a medication abortion, the rules shall require that a postabortion medical visit is scheduled between one week and three weeks after the initial dose for a medication abortion to confirm the pregnancy is completely terminated and to assess the degree of bleeding.

2. A urine pregnancy test is obtained at the time of the follow-up visit to rule out continuing pregnancy. If a continuing pregnancy is suspected, the patient shall be evaluated and a physician who performs abortions shall be consulted.

I. The director shall adopt rules to prescribe minimum abortion clinic incident reporting. At a minimum these rules shall require that:

1. The abortion clinic records each incident resulting in a patient's or viable fetus' serious injury occurring at an abortion clinic and shall report them in writing to the department within ten days after the incident. For the purposes of this paragraph, "serious injury" means an injury that occurs at an abortion clinic and that creates a serious risk of substantial impairment of a major body organ and includes any injury or condition that requires ambulance transportation of the patient.

2. If a patient's death occurs, other than a fetal death properly reported pursuant to law, the abortion clinic reports it to the department not later than the next department work day.

3. Incident reports are filed with the department and appropriate professional regulatory boards.

J. The director shall adopt rules relating to enforcement of this article. At a minimum, these rules shall require that:

1. For an abortion clinic that is not in substantial compliance with this article and the rules adopted pursuant to this article and section 36-2301 or that is in substantial compliance but refuses to carry out a plan of correction acceptable to the department of any deficiencies that are listed on the department's statement of deficiency, the department may do any of the following:

(a) Assess a civil penalty pursuant to section 36-431.01.

(b) Impose an intermediate sanction pursuant to section 36-427.

(c) Suspend or revoke a license pursuant to section 36-427.

(d) Deny a license.

(e) Bring an action for an injunction pursuant to section 36-430.

2. In determining the appropriate enforcement action, the department consider the threat to the health, safety and welfare of the abortion clinic's patients or the general public, including:

(a) Whether the abortion clinic has repeated violations of statutes or rules.

(b) Whether the abortion clinic has engaged in a pattern of noncompliance.

(c) The type, severity and number of violations.

K. The department shall not release personally identifiable patient or physician information.

L. The rules adopted by the director pursuant to this section do not limit the ability of a physician or other health professional to advise a patient on any health issue.

Article 11 Patient Safety Reporting and Nonretaliatory Policies

§ 36-450 Definitions

In this article, unless the context otherwise requires:

1. "Health professional" has the same meaning prescribed in section 32-3201.

2. "Professional standards of practice" means practicing within the scope of licensure.

3. "Retaliatory action" means termination of or other adverse action against a health professional’s employment taken by a health care institution because the professional has made a report pursuant to this article.

§ 36-450.01 Reporting procedures

A. Each health care institution licensed pursuant to this chapter shall adopt a procedure for reviewing reports made in good faith by a health professional concerning an activity, policy or practice that the health professional reasonably believes both:

1. Violates professional standards of practice or is against the law.

2. Poses a substantial risk to the health, safety or welfare of a patient.

B. The procedure shall include reasonable measures to maintain the confidentiality of the identity of a health professional providing information to a health care institution pursuant to this section.

§ 36-450.02 Nonretaliatory policy; definition

A. Each health care institution that is licensed pursuant to this chapter shall adopt a policy that prohibits retaliatory action against a health professional who in good faith:

1. Makes a report to the health care institution pursuant to the requirements of section 36-450.01.

2. Having provided the health care institution a reasonable opportunity to address the report, provides information to a private health care accreditation organization or governmental entity concerning the activity, policy or practice that was the subject of the report.

B. A third-party contractor of a health care institution may not take retaliatory action as proscribed in this section.

C. This section does not prohibit a health care institution that is licensed pursuant to this chapter from taking action against a health professional for a purpose that is not related to a report filed pursuant to section 36-450.01.

D. Except as provided in section 23-1501, subsection A, paragraph 3, subdivisions (a) and (c), this section shall be enforced only through the provisions of this chapter.

E. There is a rebuttable presumption that any termination or other adverse action that occurs more than six months after the date of a report made pursuant to either subsection A, paragraph 1 or 2 of this section is not a retaliatory action.

F. For the purposes of this section, "third-party contractor" means an entity that contracts with a health care institution to provide health care services in the health care institution by contracting or hiring health professionals.

Chapter 4.1 Clinical Laboratories

Article 1 Administration

§ 36-451 Definitions

In this chapter, unless the context otherwise requires:

1. "Accredited laboratory" means a laboratory which has received accreditation from an accreditation program approved by the secretary of the United States department of health and human services to meet standards of the federal clinical laboratory improvement amendments of 1988 (P.L. 100-518).

2. "Approved proficiency testing program" means a proficiency testing program which is approved and conducted by an accredited body approved by the secretary of the United States department of health and human services to meet the standards of the federal clinical laboratory improvement amendments of 1988 (P.L. 100-518).

3. "Certified laboratory" means a laboratory certified by the United States department of health and human services.

4. "Clinical laboratory" or "laboratory" means any facility, agency, institution, medical office, health care institution, building, or place which provides through its ownership or operation facilities for the microbiological, serological, chemical, immunohematological, hematological, cytologic, histologic, radiobioassay, cytogenetic, histocompatibility, pathological, toxicological or other examination of materials derived from the human body for the purpose of providing information for the diagnosis, prevention and treatment of a disease or an impairment or the assessment of human health conditions or to determine the presence, absence or concentration of various substances in the body. Clinical laboratory does not include law enforcement crime laboratories.

5. "Department" means the department of health services.

6. "Director" means the director of the department of health services.

7. "Federally licensed laboratory" means a laboratory licensed pursuant to the United States clinical laboratory improvement amendments of 1988 (P.L. 100-518).

8. "Governing authority" means the individual, agency, group or corporation that is appointed, elected or otherwise designated and that has the ultimate responsibility and authority for the conduct of the health care institution.

9. "Health care institution" has the same meaning as prescribed in section 36-401.

10. "License" means a regular license, renewal license or provisional license issued by the department pursuant to this chapter.

11. "Person" means any individual, firm, partnership, association or corporation, whether or not organized for profit, or any other form of business enterprise.

§ 36-452 Administration

The provisions of this chapter shall be administered by the department of health services.

Article 2 Licensure and Regulation of Clinical Laboratories

§ 36-461 Exceptions to this article

The provisions of this article apply to all clinical laboratories and directors of clinical laboratories but do not apply to the following:

1. Clinical laboratories operated, licensed or certified by the United States government.

2. Certain classes of clinical laboratories and types and categories of laboratory examinations exempted from licensure by the director by rule if the director determines that the exemptions will not adversely affect public health.

3. Laboratories operated and maintained solely for research or teaching purposes if the director provides for this exemption by rule and determines that the exemption will not adversely affect public health.

§ 36-462 License requirements; training and consultation

A. No person shall establish, conduct or maintain a clinical laboratory in this state or engage in the business of providing clinical laboratory services to persons within the state unless that person applies for and obtains a license pursuant to this article. The department shall issue a license to an applicant if the department determines that the applicant meets the requirements of this article and rules adopted pursuant to this article.

B. The director may provide training and consultation to laboratory personnel to ensure compliance with the licensure requirements of this article.

§ 36-463 Licensure of laboratories located outside of a health care institution; application; issuance; display; expiration; renewal

A. Except as otherwise provided pursuant to this article and rules adopted pursuant to this article, a person who desires to operate a clinical laboratory outside of a licensed health care institution shall file with the department an application accompanied by a license application fee prescribed by the director by rule pursuant to section 36-464.

B. The application shall be on a form prescribed and furnished by the department. The application shall be under oath and shall contain:

1. The name and location of the clinical laboratory.

2. The name of the person owning the facility and the name of the person directing the facility.

3. A description of the services provided by the clinical laboratory.

4. Other information as the department determines necessary or expedient in carrying out its powers and duties under this article.

C. The department may issue a provisional license to the applicant to operate a clinical laboratory to provide the services described in the application if the department is satisfied that the applicant substantially complies with the provisions of this article and the rules adopted pursuant to this article.

D. A provisional license is valid for no more than six months and may not be renewed.

E. If the owner of a clinical laboratory located outside of a licensed health care institution is not the director of that laboratory the director of the department of health services shall issue a joint license. The owner and the director of the laboratory are severally and jointly responsible to the department for the maintenance and conduct of the laboratory and for any violations of the provisions of this article and rules adopted pursuant to this article. A separate license shall be obtained for each clinical laboratory. A license is valid only for the persons to whom it is issued and shall not be sold or transferred. A license is not valid for any premises other than those for which it is issued.

F. A person may apply for and shall be granted a new license without charge if the licensed laboratory is undergoing a change in location and the director or owner, prior to the actual change, proves to the satisfaction of the department that the change is in compliance with the provisions of this article and rules adopted pursuant to this article. The department must receive the application at least thirty days before the proposed change in location.

G. A regular license is valid for two years and may be renewed on payment of an application for renewal fee prescribed by the director by rule pursuant to section 36-464 if the laboratory is in substantial compliance with this article and rules adopted pursuant to this article.

H. A person who maintains, conducts or operates a clinical laboratory shall display in a prominent place in the clinical laboratory the license issued to him by the department.

I. The department shall maintain a list of laboratories that meet the licensure requirements of this section. The department shall make this list available on request to licensed laboratories, physicians and the public.

§ 36-463.01 Licensure of laboratories located in a health care institution

A. A person who wishes to operate a laboratory in a health care institution which is covered by a single license issued pursuant to chapter 4 of this title shall submit an application for licensure on a form prescribed and furnished by the department. The application shall be under oath and shall contain the following:

1. The name and location of the health care institution.

2. A copy of the license of the health care institution.

3. The name of the governing authority.

4. A description of clinical laboratory services to be provided, including those to be provided in special function laboratories and ancillary test sites covered by the single license of the health care institution.

5. The name of the chief administrative officer directing the health care institution.

6. Other information required by the department.

B. The application shall be signed by the owner of the health care institution. If the application is submitted by a partnership or a corporation it shall be signed by two of the partners or officers. If the application is submitted by a governmental unit it shall be signed by the head of the appropriate department.

C. The department shall issue the license to the governing authority of the health care institution, and the license shall show the name of the chief administrative officer. The licensee is responsible for the maintenance and conduct of the laboratory and for violations of this article. The department shall issue a single license for all clinical laboratory services provided by the health care institution including those provided in special function laboratories and ancillary test sites covered by the single health care license. A license is valid only for the person to whom it is issued and may not be sold or transferred.

D. The department may issue a provisional license if it is satisfied that the applicant substantially complies with the provisions of this article. A provisional license is valid for no more than six months and may not be renewed.

E. A licensee may apply for and shall be granted a new license without charge if the licensed laboratory is undergoing a change in location and the administrator of the health care institution, prior to the actual change, proves to the satisfaction of the department that the change is in compliance with the provisions of this article and rules adopted pursuant to this article. The department must receive the application at least thirty days before the proposed change in location.

F. A license is valid for two years and may be renewed on payment of a renewal fee prescribed by the director by rule pursuant to section 36-464 if the laboratory is in substantial compliance with this article and rules adopted pursuant to this article.

G. The department shall maintain a list of laboratories that meet the licensure requirements of this section. The department shall make this list available on request to licensed laboratories, physicians and the public.

§ 36-463.02 Inspections; exemptions; disciplinary action

A. The department may inspect the premises and operations of a clinical laboratory subject to licensure pursuant to this article to study and evaluate the operation, supervision and procedures of that facility to determine if it is in substantial compliance with this article and rules adopted pursuant to this article. Inspections may be unannounced and shall take place during regular working hours.

B. The department shall require a laboratory to enroll in an approved proficiency testing program. The department may also submit proficiency test specimens for examination by a laboratory to determine its compliance with the provisions of this chapter, if a laboratory has failed to meet the standards for proficiency testing, pursuant to this article.

C. A laboratory is exempt from on-site inspection conducted pursuant to this article and on-site inspection fees if it is in substantial compliance with the licensure requirements of this article and is licensed or certified by the federal government, licensed or accredited by another state or accredited by a federally approved program. The laboratory shall submit to the department verified proof of this licensure, certification or accreditation along with the laboratory's evaluation report. A laboratory shall notify the department within twenty-four hours of its receipt of notice that its accreditation has been rescinded or modified. If the department determines that an accreditation program is no longer approved, it shall conduct on-site inspections pursuant to this section.

D. If the director has reasonable cause to believe that a licensed or unlicensed laboratory or a laboratory requesting licensure is not in substantial compliance with the licensing requirements established pursuant to this article, the director may make announced or unannounced on-site inspections of the laboratory at any reasonable time to determine compliance. An application for licensure grants the department permission to conduct on-site inspections as prescribed pursuant to this section.

E. If as a result of an inspection the director determines that a laboratory is not in substantial compliance with this article and rules adopted pursuant to this article, he may modify, suspend, revoke or deny renewal of the license. This action shall follow a hearing held pursuant to chapter 41, article 6. If the director believes that the immediate interests of the general public will be best served by allowing the laboratory an opportunity to correct the deficiency, he may issue a provisional license for not more than six months. The laboratory shall agree to carry out a plan approved by the department to correct the deficiencies. The laboratory may be relicensed only after the expiration of its provisional license and only if the department determines that the licensee is in substantial compliance with this article and rules adopted pursuant to this article.

§ 36-464 Fees; deposit

A. The director shall establish by rule fees that do not exceed the cost to the department of conducting on-site inspections, evaluation and verification of information submitted with an application and other activities related to licensure of clinical laboratories pursuant to this article and rules adopted pursuant to this article. Fees for an application for a regular license, a provisional license and renewal of a license shall be based on the services that the laboratory is licensed to provide.

B. Fees collected in accordance with the provisions of this article shall be deposited in the state general fund.

§ 36-465 Clinical laboratory licensure advisory committee; department rules; interpretive guidelines

A. The director shall appoint a clinical laboratory licensure advisory committee consisting of members representing a variety of persons affected by this article. The committee shall advise the director regarding the adoption of rules and shall make recommendations regarding interpretive guidelines necessary to properly administer and enforce the provisions of this article. Committee members serve at the pleasure of the director. Committee members are not eligible to receive compensation but are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

B. After consultation with the advisory committee, the director shall adopt rules for clinical laboratories, relating to:

1. Classes and levels of laboratory practice and types and categories of laboratory examinations performed on material taken from the human body.

2. Minimum standards of proficiency testing to ensure valid and accurate laboratory testing.

3. The construction and operation of the laboratory, including plumbing, heating, lighting, ventilation, electrical services and similar conditions to assure that the operation of the laboratory is conducted in a manner which will protect the public health. A rule adopted pursuant to this paragraph shall require that laboratory facilities conform to all state and local building, safety and fire codes and ordinances.

4. The education, training, experience and responsibilities of laboratory directors, supervisors and personnel who perform laboratory examinations and procedures for collecting human specimens or blood.

5. All conditions within the laboratory related to infectious, hazardous and toxic materials.

6. Requirements to adequately assure the validity and reliability of the laboratory examinations and test results.

7. The proper collection, transportation and storage of specimens.

8. Reports, records, equipment and facilities necessary for the proper and effective operation of the laboratory.

9. Persons who may collect and submit human specimens for examination and receive examination results.

10. Additional grounds for denial, suspension and revocation of a license.

11. Exemptions from on-site inspections.

12. Criteria for determining substantial compliance with the provisions of this article and rules adopted pursuant to this article.

C. The department may issue interpretive guidelines on subjects relating to rules adopted pursuant to this article.

§ 36-466 Advisory committee on clinical laboratories; membership; duties

A. The advisory committee on clinical laboratories is established consisting of the following members:

1. Four physicians who are licensed pursuant to title 32, chapter 13 or 17 and who are actively engaged in the practice of medicine. The director shall appoint these members.

2. Two physicians who are licensed pursuant to title 32, chapter 13 or 17 and who are employed by a clinical laboratory as pathologists. The director shall appoint these members.

3. The director or the director's designee.

B. The committee shall:

1. Annually select a chairperson and vice-chairperson from among its members.

2. Advise the department on the use and renewal of standing orders.

3. Conduct regular meetings at the call of the chairperson or a majority of the committee members.

C. The department shall adopt rules based on the recommendations of the advisory committee.

D. Committee members are not eligible to receive compensation or reimbursement of expenses.

E. The department shall provide necessary staff services to the committee.

F. The appointed committee members serve three-year terms.

§ 36-467 Reports by laboratories

A laboratory shall make available to the director on request all information that the laboratory is required by rule to keep including personnel records and information and data concerning its operation, quality assurance program, proficiency test program and laboratory procedures. The department may require that this information be under oath, be signed by the owner and director of the laboratory and be available at all times at the laboratory.

§ 36-468 Laboratory testing without health care provider's order; results; report; duty of care; liability; definition

A. A person may obtain any laboratory test from a licensed clinical laboratory on a direct access basis without a health care provider's request or written authorization if the laboratory offers that laboratory test to the public on a direct access basis without a health care provider's request or written authorization.

B. If a laboratory test of a person is conducted by or under the supervision of a person other than a health care provider and not at the request or with the written authorization of a health care provider, any report of the test results shall be provided by the person conducting the test to the person who was the subject of the test. The report shall state in bold type that it is the responsibility of the person who was tested to arrange with the person's health care provider for consultation and interpretation of the test results.

C. A health care provider's duty of care to a patient does not include any responsibility to review or act on the laboratory test results of a patient if the health care provider did not request or authorize the laboratory test. A health care provider is not subject to liability or disciplinary actions for the failure to review or act on the results of a laboratory test of any patient if the health care provider did not request or authorize the laboratory test.

D. A clinical laboratory may not submit a claim for reimbursement from a third-party payor for any laboratory test conducted without a health care provider's request or written authorization.

E. This section does not require that a laboratory test be covered by a health insurance plan or product pursuant to title 20 or by any program administered by the Arizona health care cost containment system administration pursuant to chapter 29 of this title.

F. For the purposes of this section, "health care provider" means a person who is licensed pursuant to title 32 and who is authorized to order laboratory testing.

§ 36-469 Civil penalties

A. The department may assess a civil penalty in an amount of not more than three hundred dollars for each violation of this article or a rule adopted pursuant to this article. Each day a violation occurs constitutes a separate violation. The department shall hold a hearing pursuant to title 41, chapter 6, article 10 to determine if a violation has occurred.

B. The attorney general or the county attorney shall bring an action in the name of this state to enforce the collection of penalties assessed pursuant to this section. An action shall be brought in the justice court or the superior court in the county in which the violation occurs.

C. Penalties assessed pursuant to this section are in addition to other penalties imposed pursuant to this chapter.

D. The director shall deposit, pursuant to sections 35-146 and 35-147, penalties collected pursuant to this section in the state general fund.

§ 36-470 Examination of specimens; written requests; reports of results; retention of test records

A. Except as otherwise provided, a clinical laboratory shall examine specimens at the authorization of any person licensed pursuant to title 32, chapter 7, 8, 13, 14, 17 or 29 or title 32, chapter 11, article 2, a person licensed to practice medicine or surgery in another state or a person authorized by law or department rules.

B. The result of a test shall be reported to the person who authorized it. A report of results issued from a clinical laboratory shall provide information required by the department by rule. A clinical interpretation, diagnosis or prognosis or suggested treatment other than normal values shall not appear on the laboratory report form, except that a report made by a physician licensed to practice medicine and surgery in this state or another state may include this information.

C. The result of a test may be reported to a health care provider, as defined in section 12-2291, that has a treatment relationship with a patient, to a person or entity that provides services to the health care provider and with whom the health care provider or the clinical laboratory has a business associate agreement that requires the person or entity to protect the confidentiality of patient information as required by the health insurance portability and accountability act privacy standards, 45 Code of Federal Regulations part 164, subpart E or to the patient or the patient's health care decision maker.

D. All specimens accepted by a laboratory for specified tests shall be tested on its premises, except that specimens, other than those for proficiency testing purposes, may be forwarded for examination to another laboratory licensed under this article or exempted by section 36-461, paragraph 1.

E. When the laboratory performing the examination is other than the laboratory accepting the specimen, the report submitted shall include information required by the department by rule.

F. Records involving laboratory services and copies of reports of laboratory tests shall be kept in a manner as prescribed by the department by rule.

G. A person authorized to request clinical laboratory examinations pursuant to this section may direct that a clinical laboratory examine a person's specimens at that person's request if the authorization is given pursuant to department rules and specifies:

1. The name of the person authorized to request an examination and to receive the results of that examination.

2. The type of examinations to be performed by the laboratory.

3. The total number of examinations the authorized person may request.

4. The beginning and expiration dates of the authorization.

5. The identification of the person giving the authorization.

H. The laboratory shall report test results ordered pursuant to subsection G of this section to the person who authorized the test and to the person who requested it.

§ 36-471 Persons authorized to collect human specimens or blood

A. Only a person authorized by law shall collect human bodily materials. Technical personnel of a laboratory may collect blood, remove stomach contents and collect material for smears and cultures or inject substances under the direction or on the written request of a licensed physician for examination by a licensed laboratory.

B. Paramedics, advanced emergency medical technicians or personnel who have written approval of the director may collect blood and collect material for smears and cultures under the direction or on the written request of a licensed physician.

§ 36-472 Rebates, fee-splitting and solicitation of referrals prohibited

A. The owner or director of a laboratory shall not personally or through an agent, solicit the referral of specimens to his or any other laboratory in a manner which offers or implies an offer of rebates to persons submitting specimens or other fee-splitting inducements or participate in any fee-splitting arrangement. This applies to contents of fee schedules, billing methods or personal solicitation. The contractual provision of laboratory services for a fixed fee independent of the number of specimens submitted for such services is declared to be a violation of this section.

B. The bill to the patient shall specify the actual charge by the reference laboratory together with the reasonable specimen collection charge by the referring laboratory or physician.

§ 36-472.01 Billing for laboratory costs; definition

A. A laboratory that provides anatomic pathology services shall not submit a bill to any person or entity other than the following:

1. The patient.

2. The responsible insurer or other third party payor.

3. The health care institution.

4. A referring laboratory, excluding the laboratory of the health professional who ordered the test.

5. A governmental agency or the agency's public or private agent, agency or organization that is acting on behalf of the recipient of the services.

B. For the purposes of this section, "anatomic pathology services" includes cytology services, molecular pathology services, hematopathology, histopathology, surgical pathology, and blood banking services performed by a pathologist. Anatomic pathology services does not include the collection, packaging and transportation of the specimen.

§ 36-473 Grounds for denial, suspension or revocation of license

A. After a hearing held pursuant to title 41, chapter 6, article 10, the director may deny, suspend or revoke a license or deny the renewal of a license if he determines that a person has done any of the following:

1. Violated any of the provisions of this article or rules adopted pursuant to this article.

2. Violated any provision of title 32, chapter 13.

3. Advertised clinical laboratory procedures to the public in a form or manner not approved by the director.

4. Knowingly accepted a referral for laboratory tests or specimens from and submitted a report to persons not licensed or otherwise authorized by law to submit specimens and receive reports.

5. Referred a specimen for examination to a laboratory not licensed under this article or exempted by section 36-461 or as authorized by this article.

6. Submitted a report on clinical laboratory work actually performed in another clinical laboratory without designating the name of the director and the name and address of the laboratory in which the test was performed.

7. Been convicted of a felony or of any crime involving moral turpitude under the laws of any state or of the United States arising out of or in connection with the operation of a laboratory. The record of conviction or a certified copy is conclusive evidence of a conviction.

8. Failed to pay fees required by the department.

B. If the director has reason to believe that a violation of this section is occurring that threatens the life or safety of patients he may order, on written notice to the licensee, the immediate termination of specific services, tests and use of equipment.

§ 36-474 Investigation of complaints; notice of hearing

A. The department may, upon its own initiative, and shall upon the verified complaint of any person setting forth facts which if proven would constitute grounds for action taken pursuant to section 36-473, investigate the applicant or licensee.

B. The department shall notify the applicant or licensee of the date, time and place of the hearing which shall be heard not less than ten days after the notice is served or mailed.

C. A hearing conducted pursuant to this section shall comply with the requirements of title 41, chapter 6, article 10.

§ 36-476 License surrender; certification

A. Upon the revocation of his license, a licensee shall be required to surrender his license to the department, and upon his failure or refusal to do so, the department shall have the right to seize the license.

B. The department shall not be required to certify any record, file any answer or otherwise appear in any proceeding for judicial review unless the party filing the complaint deposits with the clerk of the court a reasonable and customary sum, as determined by the chief clerk of the department, to provide for the costs of such certification. Failure on the part of the plaintiff to make such deposit shall be grounds for dismissal of the action.

§ 36-478 Injunction

The operation or maintenance of an unlicensed clinical laboratory in violation of this article is declared a nuisance inimical to the public health, welfare and safety. The director, in the name of the people of the state, through the attorney general, may, in addition to other remedies provided in this article, bring an action for an injunction to restrain such violation or to enjoin the future operation or maintenance of any such clinical laboratory until compliance with the provisions of this article has been obtained.

§ 36-479 Violations; classification

A person is guilty of a class 3 misdemeanor if he:

1. Operates, maintains, directs or engages in the business of operating a clinical laboratory without a current license issued pursuant to this article.

2. Accepts blood or specimens for tests from and makes reports to persons who are not authorized by law to submit, receive or use these reports or materials. This does not prohibit the transferral of blood or referral specimens from one clinical laboratory licensed under this article to another clinical laboratory licensed under this article if the report indicates clearly the laboratory performing the test and the name of the director of such clinical laboratory.

3. Knowingly violates any provision of this article or any rule adopted pursuant to this article.

Chapter 4.3 Environmental Laboratories

Article 1 General Provisions

§ 36-495 Definitions

In this chapter, unless the context otherwise requires:

1. "Compliance testing" means laboratory analysis of any matter, pollutant, contaminant, hazardous substance or other substance subject to regulation pursuant to:

(a) Title 49 or rules adopted or enforced by the department of environmental quality for the purpose of determining compliance with title 49.

(b) Federal environmental statutes or regulations administered or enforced by the United States environmental protection agency relating to the safe drinking water act (42 United States Code sections 300f through 300j), the clean air act (42 United States Code sections 7401 through 7642), the clean water act (33 United States Code sections 1251 through 1376), the resource conservation and recovery act (42 United States Code sections 6921 through 6939B), the comprehensive environmental response, compensation, and liability act (42 United States Code sections 9601 through 9657) and the toxic substance control act (42 United States Code sections 2601 through 2654) as they relate only to the regulation of polychlorinated biphenyls and asbestos.

(c) Federal or state statutes and rules relating to the safety, contamination and sanitation of drinking water sold in bottles, or ice or water sold by machine or hauled and enforced by the department of health services or the United States food and drug administration.

2. "Department" means the department of health services.

3. "Director" means the director of the department of health services.

4. "Environmental laboratory" or "laboratory" means a facility where compliance testing is performed.

5. "Facility" means a place, building, installation, structure or vehicle.

6. "Government agency" means an agency of the United States government, this state or a political subdivision of this state.

7. "Laboratory director" means an individual who administers the technical and scientific operation of an environmental laboratory and who is responsible for reporting laboratory test results as specified in this chapter or rules adopted pursuant to this chapter.

8. "License" means a regular license, renewal license or provisional license issued by the department pursuant to this chapter.

9. "Person" means an individual, employee, officer, managing body, trust, firm, joint stock company, consortium, corporation, partnership, association, state or political subdivision of a state or the United States government.

§ 36-495.01 Licensure program; rules

A. On or before July 1, 1991, the department shall license environmental laboratories engaged in compliance testing. Upon application for an environmental laboratory license, the department shall issue the license if, after investigation, the department determines that the application conforms with the standards established by the department.

B. The director shall prescribe rules providing for minimum standards of proficiency, methodology, quality assurance, operation and safety for environmental laboratories and may prescribe standards for personnel education, training and experience to meet federal environmental statutes or regulations, or enabling reciprocity with other states and the manner and form in which compliance testing results are reported. The rules shall be developed in cooperation with the director of the department of environmental quality and shall be consistent with title 49 and rules administered or enforced by the director of environmental quality.

C. The director shall prescribe rules providing minimum standards for third party accreditation.

D. Unless exempted by section 36-495.02, no person may operate or maintain an environmental laboratory without a license issued by the department pursuant to this chapter.

§ 36-495.02 Exemptions

A. This chapter does not apply to an environmental laboratory in this state that is:

1. Certified or designated by the United States environmental protection agency as the laboratory that provides analytical services to this state required for the delegation of primary enforcement responsibility under a federal law or regulation administered by that agency.

2. Operated by the Arizona department of agriculture or the department of health services.

3. Performing only compliance testing of parameters that require analysis at the time of sample collection as long as the testing methodologies employed are approved by the director of the department of health services or the department of environmental quality.

4. Licensed to perform those analyses for which it is licensed or certified by another agency of this state.

5. Accredited by a national voluntary laboratory accreditation program administered by the national institute of standards and technology and approved by the department.

B. In addition to the exemptions established in subsection A of this section, the director of the department of health services may also exempt by rule certain classes of environmental laboratories and types of compliance testing, parameters and methods, if the director determines that the exemptions will not adversely affect the public health or the environment. The rules shall be developed in cooperation with the director of the department of environmental quality and the director of the Arizona department of agriculture.

§ 36-495.03 License application; issuance; expiration

A. Unless exempted pursuant to section 36-495.02, a person who operates or maintains an environmental laboratory located in this state shall file an application with the department at least thirty days before the anticipated operation of a new laboratory for an environmental laboratory license accompanied by the license application fee established by this chapter. A person shall obtain a license for each laboratory, except that only one license is required for contiguous or coterminous laboratories under the same ownership. The director, by rule, shall prescribe when noncontiguous laboratories with the same owners may be operated under a single license.

B. The application shall be on a form prescribed and furnished by the department. The application shall be under oath and shall contain:

1. The name and location of the environmental laboratory.

2. The name of the person owning the facility and the name of the individual directing the laboratory.

3. A description of the services and tests provided by the environmental laboratory.

4. Other information the department deems necessary to carry out its powers and duties under this chapter.

C. The department shall issue a regular license to an applicant to operate an environmental laboratory to provide the services and tests described in the application if the department determines that the applicant is in compliance with the provisions of this chapter and rules adopted pursuant to this chapter.

D. If the owner is not the laboratory director, the director shall issue a license jointly to the owner and the laboratory director who are jointly responsible for the maintenance and operation of the laboratory and for violations of this chapter or rules adopted pursuant to this chapter.

E. A license issued by the department is valid only in the name of the persons to whom it is issued and cannot be sold, assigned or transferred. A license is valid only for the facility or facilities for which it is issued. If there is a change in the laboratory name, directorship or ownership or an appointment of an acting laboratory director, the license automatically expires, unless within twenty business days after the change the department is notified in writing of the change and an application for a new license is submitted to the department. A fee shall not be charged for this application. The director shall issue a new license reflecting the change if the laboratory is still in compliance with the provisions of this chapter and rules adopted pursuant to this chapter.

F. A regular license expires one year after the date of issuance and shall be renewed on submission of a renewal application and payment of the renewal application fee prescribed in section 36-495.06, at least thirty days before expiration of the license, unless the director determines pursuant to section 36-495.09 that grounds exist to deny the application.

§ 36-495.04 Laboratory director; duties

The director of an environmental laboratory shall:

1. Ensure that all services and tests provided by the laboratory are performed in compliance with this chapter or rules adopted pursuant to this chapter.

2. Direct and supervise services and tests provided by the laboratory and be responsible for the work of all personnel in the laboratory.

3. Be responsible for safety and hazardous substance control in the laboratory.

§ 36-495.05 Provisional licenses

A. The department may issue a provisional license for a period of not more than twelve months at the time it issues a notice of suspension of a regular license. The department may suspend a regular license if an inspection or investigation of a laboratory reveals a violation of the rules adopted by the director pursuant to this chapter and the director believes that the immediate interests of the public are best served by affording the laboratory the opportunity to correct the deficiencies. The director shall issue a provisional license only if the licensee agrees to carry out a plan acceptable to the department to eliminate the deficiencies within the term of the provisional license or period of time specified by the department.

B. A licensee's agreement to carry out a plan of correction does not constitute a waiver of its right to have a hearing on the notice of suspension. A hearing on the notice of suspension may include review of the appropriateness of the laboratory's plan of correction.

C. An application for a regular license may be submitted thirty days before the expiration of a provisional license issued pursuant to this section. The department shall condition its issuance of a regular license at the expiration of the term of the provisional license on the licensee being in full compliance with the correction plan and this chapter or rules adopted pursuant to this chapter.

§ 36-495.06 Fees

A. The department shall charge and collect a nonrefundable fee for a regular or a renewal license.

B. The director shall establish by rule a fee schedule that does not exceed the cost to the department to conduct an on-site inspection, approve third party accreditation, verify information submitted with the application and other activities related to licensure of environmental laboratories pursuant to this chapter or rules adopted pursuant to this chapter. The fee schedule for application for a regular or renewal license shall be based on the types of compliance testing that the laboratory is licensed to provide.

§ 36-495.07 Inspection; investigations

A. The department may make an initial inspection, and thereafter an annual inspection, of each laboratory to determine compliance with this chapter or rules adopted pursuant to this chapter.

B. An application for licensure pursuant to this chapter constitutes permission for the department's entry or inspection of the laboratory during the pendency of the application and, if licensed, during the term of the license for the purpose of determining compliance with this chapter or rules adopted pursuant to this chapter.

C. The department may require, as part of its inspections, that the laboratory demonstrate proficiency in performing tests that it offers by examining specimens submitted by the department, the United States environmental protection agency or other proficiency testing services approved by the department.

D. In addition to the inspections provided for in subsection A of this section, the department, on its own initiative or on the receipt of a written complaint from a person setting forth facts which, if proven, constitute a violation of this chapter or rules adopted pursuant to this chapter, may make an investigation of the laboratory's operations, techniques and procedures. If the investigation or an inspection conducted pursuant to this section discloses past or current noncompliance with statutes and rules, the director, in accordance with section 36-495.09, may deny, suspend or revoke a license issued by the department pursuant to this chapter.

E. At any time the department may conduct an investigation of the operation of an unlicensed laboratory performing compliance testing and may conduct on-site inspections of the laboratory, records, procedures and methods to determine whether the laboratory must be licensed pursuant to this chapter.

F. The director by rule shall establish standards and procedures for third party accreditation and exempting inspections and inspection fees for a laboratory that is accredited by a third party.

§ 36-495.08 Reports by laboratories

A laboratory shall make available to the department on written request information and data concerning its operation, techniques and procedures. The department may require that the information be submitted under oath and signed by the owner or director of the laboratory. The department may require the laboratory director or owner to submit other reports or information that it deems necessary to administer this chapter.

§ 36-495.09 Suspension, revocation or denial of license; hearing

A. Pursuant to title 41, chapter 6, article 10, the director may deny, revoke or suspend the license of a laboratory if its owners, officers, agents or employees do any of the following:

1. Violate this chapter or rules adopted pursuant to this chapter.

2. Issue or cause to be issued a report on environmental laboratory work performed in another laboratory without designating the name and address of the laboratory that performed the work.

3. Commit a felony under the laws of any state or of the United States arising out of or in connection with the operation of a laboratory. The record of conviction or a certified copy is conclusive evidence of conviction.

4. Knowingly aid, permit or abet the submission of false or inaccurate information required by this chapter or rules adopted pursuant to this chapter.

5. Violate the requirements for licensure of the laboratory pursuant to this chapter.

B. If the director reasonably believes that a violation of subsection A, paragraph 5 of this section has occurred and that the life or safety of the public is immediately affected, on written notice to the owner or director of the laboratory, the director may order the immediate termination of specific testing services, procedures or practices.

C. Except as provided in subsection B of this section and section 41-1092.11, subsection B, the director shall not suspend, revoke or deny a license without affording the licensee notice and an opportunity for a hearing as provided in title 41, chapter 6, article 10.

D. A person whose application for a license is denied by the director or who has been ordered pursuant to subsection B of this section to immediately terminate specific services, procedures or practices, at any time within thirty days after notice of the denial or order, may request in writing a hearing before the director or a person designated by the director to review the director's action. The hearing shall be held within thirty days after the written request.

E. All hearings shall be held in accordance with title 41, chapter 6, article 10.

§ 36-495.10 Operation of unlicensed laboratory; cease and desist order; injunction; letter

A. The operation or maintenance of an environmental laboratory that does not hold a current or valid license or that exceeds the range of the services or tests authorized by a license issued pursuant to this chapter is a public nuisance. The director, in addition to other remedies provided in this chapter, may issue a cease and desist order pursuant to section 36-601 or, in the name of the people of this state, through the attorney general, may bring an action for an injunction to restrain the violation or to enjoin the future operation or maintenance of the environmental laboratory until the laboratory complies with the provisions of this chapter.

B. Before issuing a cease and desist order or bringing an action for injunction pursuant to this section, the department may issue a certified letter to a licensed or unlicensed facility in which it states the factual basis for the department's belief that the laboratory is operating in violation of this chapter or rules adopted pursuant to this chapter. The department may include within the letter the enforcement options available to the department if the violations continue.

§ 36-495.11 Violation; classification

A. A person is guilty of a class 3 misdemeanor if he:

1. Operates, maintains, directs or engages in the business of operating an environmental laboratory without a license issued by the department.

2. Knowingly violates a provision of this chapter or a rule adopted pursuant to this chapter.

B. Each day that a violation continues constitutes a separate offense.

§ 36-495.12 Violations; civil penalties

A. The department may assess a civil penalty in an amount of not more than three hundred dollars for each violation of this chapter after a hearing is conducted pursuant to title 41, chapter 6, article 10. Each day that a violation continues constitutes a separate violation.

B. The attorney general or the county attorney shall bring actions to enforce the collection of penalties assessed pursuant to subsection A in the name of this state in the justice court or the superior court in the county in which the violation occurs.

C. Penalties assessed under this section are in addition to other penalties imposed pursuant to this chapter.

D. The director shall deposit, pursuant to sections 35-146 and 35-147, penalties collected pursuant to this section in the state general fund.

§ 36-495.13 Powers of the director

A. In addition to the rules required by section 36-495.01, the director may adopt other rules and prescribe forms that are necessary for the administration and enforcement of this chapter.

B. The director may issue interpretive guidelines on subjects relating to the rules adopted under this chapter.

C. The director may enter into intergovernmental agreements with other agencies of this state for the purpose of licensing environmental laboratories performing compliance testing.

§ 36-495.14 Out-of-state laboratories; licensure; reciprocity

A. Except as provided in this section, a laboratory located outside of this state that performs compliance testing shall be licensed pursuant to this chapter. The laboratory shall pay all applicable fees and is subject to the same investigatory and disciplinary powers of the department. In addition, the department, by rule, may require that the laboratory post a bond with the department to cover the travel costs of prelicensure and postlicensure inspections and evaluations.

B. A laboratory which is located outside of this state and is licensed by this state shall renew the license by submitting an application and fee at least sixty days before the expiration of the license. The department, by rule, may also prescribe that an out-of-state application be accompanied by an additional fee to cover the costs of prerelicensure on-site evaluation and inspection.

C. The director shall designate the location of hearings held in relation to disciplinary matters or the issuance of a license.

D. The director may enter into a reciprocity agreement with the licensing agency of another state if the director determines that the licensing requirements of that state are substantially equal to those of this state. The agreement shall provide that the licensing agencies of both states shall recognize a current license issued by the other state for the purpose of meeting the licensure requirements of either state. The agreement shall also provide that both states, on the request of either state, shall conduct necessary investigations to determine compliance and shall allow on-site inspections by investigators from either state.

E. If a reciprocal state revokes, suspends or refuses to renew the license of a laboratory located in that state, this state shall recognize that action unless the laboratory notifies the department within five business days of the action that it wishes this state to undertake an independent review and investigation and posts a bond as prescribed by the department to conduct the review. If, at the conclusion of that review, this state determines that the laboratory meets the licensure requirements of this state, it shall issue a license to that laboratory on payment of all fees required by this chapter. Notwithstanding the terms of a reciprocity agreement, if either state takes action contrary to the action of the other, neither state has to recognize the license issued by the other.

§ 36-495.15 Environmental laboratory licensure revolving fund; use

A. The environmental laboratory licensure revolving fund is established in the department which consists of monies from gifts, grants, donations, fees derived from department sponsored workshops, conferences and seminars and fees collected pursuant to this chapter.

B. Subject to legislative appropriation, monies in the fund shall be used to support the administration of this chapter and for the costs incurred in administering this chapter and rules adopted for the implementation of this chapter.

C. Monies in the fund are exempt from section 35-190. Interest earned on monies in the fund shall be credited to the fund.

§ 36-495.16 Environmental laboratory advisory committee; membership; duties; compensation

A. The environmental laboratory advisory committee is established consisting of members selected by the director. The director shall select members who represent a variety of persons affected by this article. Committee members serve at the pleasure of the director.

B. The committee shall advise the director regarding the adoption of rules and other issues affecting environmental testing laboratories and shall make recommendations regarding interpretive guidelines necessary to properly administer the provisions of this article.

C. Committee members are not eligible to receive compensation but are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

Chapter 5 Mental Health Services

Article 1 General Provisions

§ 36-501 Definitions

In this chapter, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Admitting officer" means a psychiatrist or other physician or psychiatric and mental health nurse practitioner with experience in performing psychiatric examinations who has been designated as an admitting officer of the evaluation agency by the person in charge of the evaluation agency.

3. "Authorized transporter" means a transportation entity that is contracted with a city, town or county to provide services pursuant to this chapter and that is either:

(a) An ambulance service that holds a valid certificate of necessity.

(b) A transportation provider authorized by this state to provide safe behavioral health transportation for individuals requiring transportation pursuant to this chapter.

4. "Chief medical officer" means the chief medical officer under the supervision of the superintendent of the state hospital.

5. "Contraindicated" means that access is reasonably likely to endanger the life or physical safety of the patient or another person.

6. "Court" means the superior court in the county in this state in which the patient resides or was found before screening or emergency admission under this title.

7. "Criminal history" means police reports, lists of prior arrests and convictions, criminal case pleadings and court orders, including a determination that the person has been found incompetent to stand trial pursuant to section 13-4510.

8. "Danger to others" means that the judgment of a person who has a mental disorder is so impaired that the person is unable to understand the person's need for treatment and as a result of the person's mental disorder the person's continued behavior can reasonably be expected, on the basis of competent medical opinion, to result in serious physical harm.

9. "Danger to self":

(a) Means behavior that, as a result of a mental disorder:

(i) Constitutes a danger of inflicting serious physical harm on oneself, including attempted suicide or the serious threat thereof, if the threat is such that, when considered in the light of its context and in light of the individual's previous acts, it is substantially supportive of an expectation that the threat will be carried out.

(ii) Without hospitalization will result in serious physical harm or serious illness to the person.

(b) Does not include behavior that establishes only the condition of having a grave disability.

10. "Department" means the department of health services.

11. "Detention" means the taking into custody of a patient or proposed patient.

12. "Director" means the director of the administration.

13. "Evaluation" means:

(a) A professional multidisciplinary analysis that may include firsthand observations or remote observations by interactive audiovisual media and that is based on data describing the person's identity, biography and medical, psychological and social conditions carried out by a group of persons consisting of at least the following:

(i) Two licensed physicians who are qualified psychiatrists, if possible, or at least experienced in psychiatric matters, who shall examine and report their findings independently. The person against whom a petition has been filed shall be notified that the person may select one of the physicians. A psychiatric resident in a training program approved by the American medical association or by the American osteopathic association may examine the person in place of one of the psychiatrists if the resident is supervised in the examination and preparation of the affidavit and testimony in court by a qualified psychiatrist appointed to assist in the resident's training, and if the supervising psychiatrist is available for discussion with the attorneys for all parties and for court appearance and testimony if requested by the court or any of the attorneys.

(ii) Two other individuals, one of whom, if available, is a psychologist and in any event a social worker familiar with mental health and human services that may be available placement alternatives appropriate for treatment. An evaluation may be conducted on an inpatient basis, an outpatient basis or a combination of both, and every reasonable attempt shall be made to conduct the evaluation in any language preferred by the person.

(b) A physical examination that is consistent with the existing standards of care and that is performed by one of the evaluating physicians or by or under the supervision of a physician who is licensed pursuant to title 32, chapter 13 or 17 or a registered nurse practitioner who is licensed pursuant to title 32, chapter 15 if the results of that examination are reviewed or augmented by one of the evaluating physicians.

14. "Evaluation agency" means either of the following:

(a) A health care agency that is licensed by the department and that has been approved pursuant to this title to provide the services required of that agency by this chapter.

(b) A facility that is exempt from licensure pursuant to section 36-402, that possesses an accreditation from either a national commission on correctional health care or an American correctional association and that has been approved pursuant to this title to provide the services required of that facility by this chapter.

15. "Family member" means a spouse, parent, adult child, adult sibling or other blood relative of a person undergoing treatment or evaluation pursuant to this chapter.

16. "Grave disability" means a condition evidenced by behavior in which a person, as a result of a mental disorder, is likely to come to serious physical harm or serious illness because the person is unable to provide for the person's own basic physical needs.

17. "Health care decision maker" has the same meaning prescribed in section 12-2801.

18. "Health care entity" means a health care provider, the department, the administration or a regional behavioral health authority that is under contract with the administration.

19. "Health care provider" means a health care institution as defined in section 36-401 that is licensed as a behavioral health provider pursuant to department rules or a mental health provider.

20. "Independent evaluator" means a licensed physician, psychiatric and mental health nurse practitioner or psychologist who is selected by the person to be evaluated or by the person's attorney.

21. "Informed consent" means a voluntary decision following presentation of all facts necessary to form the basis of an intelligent consent by the patient or guardian with no minimizing of known dangers of any procedures.

22. "Least restrictive treatment alternative" means the treatment plan and setting that infringe in the least possible degree with the patient's right to liberty and that are consistent with providing needed treatment in a safe and humane manner.

23. "Licensed physician" means any medical doctor or doctor of osteopathy who is either:

(a) Licensed in this state.

(b) A full-time hospital physician licensed in another state and serving on the staff of a hospital operated or licensed by the United States government.

24. "Medical director of an evaluation agency" means a psychiatrist, or other licensed physician experienced in psychiatric matters, who is designated in writing by the governing body of the agency as the person in charge of the medical services of the agency for the purposes of this chapter and may include the chief medical officer of the state hospital.

25. "Medical director of a mental health treatment agency" means a psychiatrist, or other licensed physician experienced in psychiatric matters, who is designated in writing by the governing body of the agency as the person in charge of the medical services of the agency for the purposes of this chapter and includes the chief medical officer of the state hospital.

26. "Mental disorder" means a substantial disorder of the person's emotional processes, thought, cognition or memory. Mental disorder is distinguished from:

(a) Conditions that are primarily those of drug abuse, alcoholism or intellectual disability, unless, in addition to one or more of these conditions, the person has a mental disorder.

(b) The declining mental abilities that directly accompany impending death.

(c) Character and personality disorders characterized by lifelong and deeply ingrained antisocial behavior patterns, including sexual behaviors that are abnormal and prohibited by statute unless the behavior results from a mental disorder.

27. "Mental health provider" means any physician or provider of mental health or behavioral health services who is involved in evaluating, caring for, treating or rehabilitating a patient.

28. "Mental health treatment agency" means any of the following:

(a) The state hospital.

(b) A health care agency that is licensed by the department and that provides the services that are required of the agency by this chapter.

(c) A facility that is exempt from licensure pursuant to section 36-402, that possesses an accreditation from either a national commission on correctional health care or an American correctional association and that provides the services that are required of the facility by this chapter.

29. "Outpatient treatment" or "combined inpatient and outpatient treatment" means any treatment program not requiring continuous inpatient hospitalization.

30. "Outpatient treatment plan" means a treatment plan that does not require continuous inpatient hospitalization.

31. "Patient" means any person who is undergoing examination, evaluation or behavioral or mental health treatment under this chapter.

32. "Peace officers" means sheriffs of counties, constables, marshals and policemen of cities and towns.

33. "Persistent or acute disability" means a severe mental disorder that meets all the following criteria:

(a) Significantly impairs judgment, reason, behavior or capacity to recognize reality.

(b) If not treated, has a substantial probability of causing the person to suffer or continue to suffer severe and abnormal mental, emotional or physical harm.

(c) Substantially impairs the person's capacity to make an informed decision regarding treatment, and this impairment causes the person to be incapable of understanding and expressing an understanding of the advantages and disadvantages of accepting treatment and understanding and expressing an understanding of the alternatives to the particular treatment offered after the advantages, disadvantages and alternatives are explained to that person.

(d) Has a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment.

34. "Prepetition screening" means the review of each application requesting court-ordered evaluation, including an investigation of facts alleged in the application, an interview with each applicant and an interview, if possible, with the proposed patient. The purpose of the interview with the proposed patient is to assess the problem, explain the application and, when indicated, attempt to persuade the proposed patient to receive, on a voluntary basis, evaluation or other services.

35. "Prescribed form" means a form established by a court or the rules of the administration in accordance with the laws of this state.

36. "Professional" means a physician who is licensed pursuant to title 32, chapter 13 or 17, a psychologist who is licensed pursuant to title 32, chapter 19.1 or a psychiatric and mental health nurse practitioner who is certified pursuant to title 32, chapter 15.

37. "Proposed patient" means a person for whom an application for evaluation has been made or a petition for court-ordered evaluation has been filed.

38. "Prosecuting agency" means the county attorney, attorney general or city attorney who applied or petitioned for an evaluation or treatment pursuant to this chapter.

39. "Psychiatric and mental health nurse practitioner" means a registered nurse practitioner as defined in section 32-1601 who has completed an adult or family psychiatric and mental health nurse practitioner program and who is certified as an adult or family psychiatric and mental health nurse practitioner by the state board of nursing.

40. "Psychiatrist" means a licensed physician who has completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association.

41. "Psychologist" means a person who is licensed under title 32, chapter 19.1 and who is experienced in the practice of clinical psychology.

42. "Records" means all communications that are recorded in any form or medium and that relate to patient examination, evaluation or behavioral or mental health treatment. Records include medical records that are prepared by a health care provider or other providers. Records do not include:

(a) Materials that are prepared in connection with utilization review, peer review or quality assurance activities, including records that a health care provider prepares pursuant to section 36-441, 36-445, 36-2402 or 36-2917.

(b) Recorded telephone and radio calls to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity.

43. "Regional behavioral health authority" has the same meaning prescribed in section 36-3401.

44. "Screening agency" means a health care agency that is licensed by the department and that provides those services required of the agency by this chapter.

45. "Social worker" means a person who has completed two years of graduate training in social work in a program approved by the council of social work education and who has experience in mental health.

46. "State hospital" means the Arizona state hospital.

47. "Superintendent" means the superintendent of the state hospital.

48. "Voluntary evaluation" means the ongoing collection and analysis of a person's medical, psychological, psychiatric and social conditions in order to initially determine if a health disorder exists and if there is a need for behavioral health services and, on an ongoing basis, to ensure that the person's service plan is designed to meet the person's and the person's family's current needs and long-term goals.

§ 36-502 Powers and duties of the director of AHCCCS; rules; expenditure limitation; reporting requirements; definition

A. The administration is responsible for monitoring, overseeing and evaluating its contractors and the contracted agencies providing services under this chapter to ensure that the services are provided in a timely, clinically effective and efficient manner. The administration and its contractors shall monitor the performance of an agency providing services pursuant to this chapter. The administration shall take corrective action, which may include technical assistance, and impose civil penalties pursuant to section 36-2918, if appropriate, suspension and termination of contracts, for agencies that the administration finds to not be in compliance with county, state and federal laws and rules or to not be performing the services in a timely, effective and efficient manner.

B. The director shall adopt rules that include standards for agencies other than the state hospital when providing services and shall prescribe forms as may be necessary for the proper administration and enforcement of this chapter. The rules shall be applicable to patients admitted to or treated in agencies, other than the state hospital, as set forth in this chapter and shall provide for periodic inspections of such agencies.

C. The director shall adopt rules, if necessary, and prescribe reporting requirements and standards for contractors and contracted agencies to collect, report and analyze information and data for the purpose of understanding the clinical effectiveness of services provided by the various agencies pursuant to this chapter. The administration shall analyze the information and data collected semiannually and shall report annually to the governor, the president of the senate and the speaker of the house of representatives beginning on or before December 31, 2025. For the purposes of this subsection, the information and data shall identify and measure clinical outcomes in the past year of members who have received a designation of serious mental illness, including all of the following:

1. The number of hospitalizations and rehospitalizations, the facilities where admissions occurred and the average length of stay by admitting diagnosis, for members for whom the administration or its contractor is the primary payor.

2. The number and percentage of members with a mental health disorder and co-occurring substance use disorder diagnosis who were admitted, discharged and subsequently readmitted to an inpatient psychiatric facility within the preceding year, for members for whom the administration or its contractor is the primary payor.

3. The number and percentage of members whose title XIX enrollment is placed in a no-pay status in a given year due to the member's incarceration status, stratified by the number of times enrollment is suspended.

4. The number of members for whom the administration or its contractor is notified of a release from incarceration and for whom the administration or its contractor conducts reach-in services.

5. The number of responses by the contracted crisis system that identify members with a serious mental illness designation, including:

(a) The number of crisis phone line calls received.

(b) The number of mobile teams dispatched.

(c) The number of members seen at psychiatric urgent care centers.

(d) The number of members with two or more distinct crisis system episodes.

6. The number of member deaths, the death rate and the cause of death in the preceding year.

7. The number of members who are homeless, unsheltered or inadequately housed and for what period of time, as identified through homeless management information system data or other available sources identified by the administration.

8. The number of title XIX members or non-title XIX grant-funded members, separately delineated, who are:

(a) Admitted to a behavioral health residential facility.

(b) Discharged from a behavioral health residential facility.

(c) For those members for whom the administration or its contractor is the primary payor, admitted to an inpatient psychiatric hospital within one year after discharge from the behavioral health residential facility.

9. The number and percentage of members who:

(a) Have received court-ordered treatment.

(b) Have requested and received the removal of a serious mental illness designation.

(c) Have received court-ordered treatment and are adherent to the court-ordered treatment.

(d) Did not receive a single behavioral health service.

10. The number of patients who have been discharged from the state hospital and admitted to a contracted psychiatric hospital within the preceding year.

11. The number of members who have been evaluated for a serious mental illness eligibility determination, the number of members whose eligibility determination resulted in receiving a serious mental illness designation and the number of members whose eligibility determination resulted in not receiving a serious mental illness designation.

12. The number of members who are also enrolled in medicare and when the member's medicare enrollment became known to the administration, separately reported by title XIX and non-title XIX members.

D. The director shall adopt rules concerning the admission of patients and the transfer of patients between mental health treatment agencies other than the state hospital. A patient undergoing court-ordered treatment may be transferred from one mental health treatment agency to another in accordance with the rules of the director, subject to the approval of the court.

E. The director may adopt rules concerning leaves, visits and absences of patients from evaluation agencies and mental health treatment agencies other than the state hospital.

F. The total amount of state monies that may be spent in any fiscal year by the administration for mental health services pursuant to this chapter may not exceed the amount appropriated or authorized by section 35-173 for that purpose. This chapter does not impose a duty on an officer, agent or employee of this state to discharge a responsibility or create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

G. The requirements of subsection C of this section shall be implemented not later than October 1, 2025. On or before December 31, 2024, the administration shall file an interim report with the governor, the president of the senate and the speaker of the house of representatives that describes the plan of the administration in completing the requirements of this section. On or before December 31, 2025, the administration shall file a report with the governor, the president of the senate and the speaker of the house of representatives confirming the implementation of the requirements of this section.

H. For the purposes of this section, "member" has the same meaning prescribed in section 36-2901.

§ 36-502.01 Powers and duties of director of the department of health services; rules; expenditure limitation

A. The director of the department shall make rules that include standards for the state hospital when providing services as an evaluation agency or mental health agency and shall prescribe forms as may be necessary for the proper administration and enforcement of those responsibilities. The rules shall be applicable to patients admitted to, evaluated by or treated in the state hospital as set forth in this chapter and shall provide for periodic inspections of the state hospital.

B. The director of the department shall make rules concerning the admission of patients to the state hospital and the transfer of patients between the state hospital and other mental health treatment agencies. A patient undergoing court-ordered treatment may be transferred between the state hospital and another mental health treatment agency in accordance with the rules of the director of the department, subject to the approval of the court. The director of the department shall consult with the director of the administration on rules relating to transfers to and from the state hospital and other mental health treatment agencies.

C. The director of the department may make rules concerning leaves, visits and absences of patients from the state hospital.

D. The total amount of state monies that may be spent in any fiscal year by the department for mental health services pursuant to this chapter may not exceed the amount appropriated or authorized by section 35-173 for that purpose. This chapter does not impose a duty on an officer, agent or employee of this state to discharge a responsibility or create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

§ 36-503 Medical director of evaluation agency or mental health treatment agency; deputy

The medical director of an evaluation agency or the medical director of a mental health treatment agency may deputize, in writing, subject to the approval of the governing body of the agency, any qualified psychiatrist or licensed physician on the staff of the agency to do or perform in his stead any act the medical director is empowered to do or charged with responsibility of doing pursuant to this chapter.

§ 36-503.01 Duty of attorney general or county attorney

Whenever a physician or other person files a petition for court-ordered evaluation or court-ordered treatment on behalf of a state or county screening, evaluation or mental health treatment agency, the attorney general or the county attorney for the county in which the proceeding is initiated, as the case may be, shall represent the individual or agency in any judicial proceeding for involuntary detention or commitment and shall defend all challenges to such detention or commitment.

§ 36-503.02 Apprehension and transportation by authorized transporters; immunity

A. When in any section of articles 4 and 5 of this chapter, a court, a person, an evaluation agency or a mental health treatment agency is allowed to authorize, request or order the apprehension and transportation of a patient or proposed patient by a peace officer to an evaluation agency or mental health treatment agency, the court, person, evaluation agency or mental health treatment agency may authorize the apprehension and transportation by an authorized transporter if available in the city, town or county if there are reasonable grounds to believe that the patient or proposed patient may be safely apprehended and transported by an authorized transporter without the assistance of a peace officer.

B. Any person who provides a court, a person, an evaluation agency or a mental health treatment agency authorized to request or order the apprehension and transportation of a patient or proposed patient with facts and circumstances or expresses an opinion that there may be reasonable grounds to believe a patient or proposed patient may be safely apprehended and transported to an evaluation agency or mental health treatment agency by an authorized transporter without the assistance of a peace officer, the court, the person, the evaluation agency or the mental health treatment agency that authorizes the use of an authorized transporter and the authorized transporter that apprehends and transports the patient or proposed patient to an evaluation agency or mental health treatment agency pursuant to an authorization, request or order issued under this chapter are not subject to civil liability for the apprehension or transportation. This liability exclusion does not apply to a person who acts with gross negligence.

C. This chapter does not require a city, town or county to contract with an authorized transporter to provide services pursuant to this chapter instead of a peace officer. A city, town or county that enters into a contract with an authorized transporter is financially responsible for the contracted services provided pursuant to this chapter by the authorized transporter.

D. For the purposes of this chapter, an evaluation agency or mental health treatment agency authorizing the use of an authorized transporter is not financially responsible for the use of the authorized transporter.

§ 36-503.03 Civil commitment treatment population; cap

The Arizona state hospital shall collect census data for adult civil commitment treatment programs to establish maximum capacity and the allocation formula required by section 36-206, subsection D. The Arizona state hospital or the department of health services is not required to provide civil commitment treatment that exceeds the funded capacity. If the Arizona state hospital reaches its funded capacity in civil commitment treatment programs, the superintendent of the state hospital shall establish a waiting list for admission based on the date of the court order issued pursuant to this section.

§ 36-503.04 Maternal mental health conditions; educational materials and information; distribution; definitions

A. The department shall identify and compile relevant educational materials and information for health care professionals and patients regarding maternal mental health conditions, including postpartum depression, that have been developed by organizations with expertise in maternal mental health conditions. The materials shall include information on the symptoms and methods of coping with postpartum depression, as well as treatment options and resources. If the department is unable to identify existing materials that comply with the requirements of this subsection, the department shall develop written educational materials and information, taking into consideration relevant clinical practice guidelines, peer-reviewed studies and recommendations from experts in maternal mental health care, including the centers for disease control and prevention, professional associations and patient advocacy groups.

B. The department shall post the materials and information required by subsection A of this section on its public website. The department shall make available or distribute the materials and information in physical form on request.

C. The department shall periodically review the materials and information to determine their accuracy and ensure that they reflect the most up-to-date and accurate information.

D. A health care institution shall provide each departing new parent and other family members, as appropriate, with written materials and information compiled or developed pursuant to subsection A of this section on the new parent's discharge from the health care institution.

E. Each health care institution, primary care physician and primary care practitioner, or any other health professional who renders prenatal or postnatal care or who provides pediatric infant care, shall provide the materials and information compiled or developed pursuant to subsection A of this section to any woman on learning of a pregnancy or who presents with signs of a maternal mental health disorder at any time during a pregnancy or postpartum period.

F. For the purposes of this section:

1. "Health care institution" has the same meaning prescribed in section 36-401.

2. "Primary care physician" and "primary care practitioner" have the same meanings prescribed in section 36-2901.

Article 2 Patient's Civil and Legal Rights

§ 36-504 Notice of patients' rights; notification to family

A. Every person undergoing treatment or evaluation pursuant to this chapter is entitled to the rights set forth in this chapter and to rights that the director specifies by rule. A list of patients' rights as required by this chapter and by the administration shall be compiled and published by the director by rule. The list shall be prominently posted in English and Spanish in all facilities providing evaluation or treatment. A patient's rights shall otherwise be brought to the attention of the patient as this chapter requires or the director may direct by rule.

B. An agency that is evaluating, examining or treating a person pursuant to article 4 or 5 of this chapter shall immediately notify the person's guardian or, if none, a member of the person's family that the person is being treated in the agency. If the person has an agent appointed pursuant to chapter 32 of this title, the agency shall notify that agent. If the agency is unable to learn the identity of or to contact the guardian or member of the person's family, it shall document every attempt that was made to comply with the notification. The agency shall release any further information only after the treating professional or that person's designee interviews the person undergoing treatment or evaluation to determine whether or not release is in that person's best interests. A decision to release or withhold information is subject to review pursuant to section 36-517.01. The treating agency shall record the name of a person to whom any information is given.

§ 36-504.01 Guardians and agents; rights in proceedings

Guardians and agents who have decisional authority to make personal, medical and treatment decisions for a patient pursuant to an order of the court or pursuant to a validly executed mental health power of attorney in which the principal has been found incapable of giving informed consent have the following rights in any proceedings under this article regarding involuntary treatment of the patient:

1. To be notified of any petition for treatment, motion for amended court order, application for continued court-ordered treatment and request for judicial review.

2. If allowed by the court, to provide the court with the guardian's or agent's position regarding the relief being sought in any of the proceedings set forth in paragraph 1 of this section and to provide the court with any relevant information to help the court make a determination.

3. To provide relevant information to any agency providing inpatient or outpatient screening, evaluation or treatment to the patient.

4. When appropriate, to participate in treatment and discharge planning with the inpatient or outpatient treatment providers.

§ 36-505 Rights at hearing

At all hearings conducted pursuant to this chapter, persons shall have the right to an analysis of their psychological condition by an independent evaluator.

§ 36-506 Civil rights not impaired; discrimination prohibited

A. Persons undergoing evaluation or treatment pursuant to this chapter shall not be denied any civil right, including but not limited to, the right to dispose of property, sue and be sued, enter into contractual relationships and vote. Court-ordered treatment or evaluation pursuant to this chapter is not a determination of legal incompetency, except to the extent provided in section 36-512.

B. A person who is or has been evaluated or treated in an agency for a mental disorder shall not be discriminated against in any manner, including but not limited to:

1. Seeking employment.

2. Resuming or continuing professional practice or previous occupation.

3. Obtaining or retaining housing.

4. Obtaining or retaining licenses or permits, including but not limited to, motor vehicle licenses, motor vehicle operators and chauffeurs licenses and professional or occupational licenses.

C. "Discrimination" for purposes of this section means any denial of civil rights on the grounds of hospitalization or outpatient care and treatment unrelated to a person's present capacity to meet the standards applicable to all persons. Applications for positions, licenses and housing shall contain no requests for information which encourage such discrimination.

D. Upon discharge from any treatment or evaluation agency, the patient shall be given written notice of the provisions of this section.

§ 36-507 Patient's rights to privacy and to personal possessions

Every person undergoing evaluation or treatment pursuant to this chapter:

1. Has the right not to be fingerprinted.

2. Has the right not to be photographed without consent of the person and the person's attorney or guardian, except that the person may be photographed upon admission to an agency for identification and administrative purposes of the agency. All photographs shall be confidential and shall not be released by the agency except pursuant to court order.

3. Has the right to examine the written treatment program and the medical record, unless the attending physician or the physician's designee who is a health professional as defined in section 32-3201 determines that such an examination is contraindicated or the requirements of section 12-2293, subsection B are met. If the attending physician or the physician's designee denies such an examination, this determination shall be noted in the patient's medical record.

4. Has access to individual storage space for his private use while undergoing evaluation or treatment.

5. May wear the person's own clothing, keep and use the person's own personal possessions including toilet articles and to keep and be allowed to spend a reasonable sum of the person's own money for the person's own needs and comfort. Notwithstanding section 36-516, the director of the agency may deny the patient's rights under this paragraph if necessary to protect the safety of the patient or others. The denial shall be based on a written determination and entered into the patient's clinical record and that information shall be made available on request to the person or the person's attorney or guardian.

§ 36-508 Disposition of patient's personal property

A. When a patient is admitted on an inpatient basis to a mental health treatment agency pursuant to section 36-540, the articles of personal property which cannot be used by the patient at the institution shall be placed under the control and management of the patient's guardian or conservator and, if none, of the patient's spouse or next of kin.

B. In the event the patient is without a guardian, conservator, spouse or next of kin, or the spouse or next of kin refuses to take possession of the patient's personal property that cannot be used by the patient at the mental health treatment agency, the mental health treatment agency shall provide reasonable facilities for the storage of the patient's personal property.

C. Upon application by any interested person, the court shall enter an appropriate order for the protection of the proposed patient's property where no other alternatives exist to prevent the immediate loss or destruction of that property.

§ 36-509 Confidential records; immunity; definition

A. A health care entity must keep records and information contained in records confidential and not as public records, except as provided in this section. Records and information contained in records may be disclosed only as authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or as follows to:

1. Physicians and providers of health, mental health or social and welfare services involved in caring for, treating or rehabilitating the patient.

2. Individuals to whom the patient or the patient's health care decision maker has given authorization to have information disclosed.

3. Persons authorized by a court order.

4. Persons doing research only if the activity is conducted pursuant to applicable federal or state laws and regulations governing research.

5. The state department of corrections in cases in which prisoners confined to the state prison are patients in the state hospital on authorized transfers either by voluntary admission or by order of the court.

6. Governmental or law enforcement agencies if necessary to:

(a) Secure the return of a patient who is on unauthorized absence from any agency where the patient was undergoing evaluation and treatment.

(b) Report a crime on the premises.

(c) Avert a serious and imminent threat to an individual or the public.

7. Persons, including family members, other relatives, close personal friends or any other person identified by the patient, as otherwise authorized or required by state or federal law, including the health insurance portability and accountability act of 1996 privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or pursuant to one of the following:

(a) If the patient is present or otherwise available and has the capacity to make health care decisions, the health care entity may disclose the information if one of the following applies:

(i) The patient agrees verbally or agrees in writing by signing a consent form that permits disclosure.

(ii) The patient is given an opportunity to object and does not express an objection.

(iii) The health care entity reasonably infers from the circumstances, based on the exercise of professional judgment, that the patient does not object to the disclosure.

(b) If the patient is not present or the opportunity to agree or object to the disclosure of information cannot practicably be provided because of the patient's incapacity or an emergency circumstance, the health care entity may disclose the information if the entity determines that the disclosure of the information is in the best interests of the patient. In determining whether the disclosure of information is in the best interests of the patient, in addition to all other relevant factors, the health care entity shall consider all of the following:

(i) The patient's medical and treatment history, including the patient's history of compliance or noncompliance with an established treatment plan based on information in the patient's medical record and on reliable and relevant information received from the patient's family members, friends or others involved in the patient's care, treatment or supervision.

(ii) Whether the information is necessary or, based on professional judgment, would be useful in assisting the patient in complying with the care, treatment or supervision prescribed in the patient's treatment plan.

(iii) Whether the health care entity has reasonable grounds to believe that the release of the information may subject the patient to domestic violence, abuse or endangerment by family members, friends or other persons involved in the patient's care, treatment or supervision.

(c) The health care entity believes the patient presents a serious and imminent threat to the health or safety of the patient or others, and the health care entity believes that family members, friends or others involved in the patient's care, treatment or supervision can help to prevent the threat.

(d) In order for the health care entity to notify a family member, friend or other person involved in the patient's care, treatment or supervision of the patient's location, general condition or death.

8. A state agency that licenses health professionals pursuant to title 32, chapter 13, 15, 17, 19.1 or 33 and that requires these records in the course of investigating complaints of professional negligence, incompetence or lack of clinical judgment.

9. A state or federal agency that licenses health care providers.

10. A governmental agency or a competent professional, as defined in section 36-3701, in order to comply with chapter 37 of this title.

11. Independent oversight committees established pursuant to title 41, chapter 35. Any information released pursuant to this paragraph shall comply with the requirements of section 41-3804 and applicable federal law and shall be released without personally identifiable information unless the personally identifiable information is required for the official purposes of the independent oversight committee. Case information received by an independent oversight committee shall be maintained as confidential. For the purposes of this paragraph, "personally identifiable information" includes a person's name, address, date of birth, social security number, tribal enrollment number, telephone or telefacsimile number, driver license number, places of employment, school identification number and military identification number or any other distinguishing characteristic that tends to identify a particular person.

12. A patient or the patient's health care decision maker.

13. The department of public safety or another law enforcement agency by the court to comply with the requirements of section 36-540, subsections O and P.

14. A third-party payor or the payor's contractor as permitted by the health insurance portability and accountability act privacy standards, 45 Code of Federal Regulations part 160 and part 164, subpart E.

15. A private entity that accredits the health care provider and with whom the health care provider has an agreement requiring the agency to protect the confidentiality of patient information.

16. The legal representative of a health care entity in possession of the record for the purpose of securing legal advice.

17. A person or entity as otherwise required by state or federal law.

18. A person or entity as permitted by the federal regulations on alcohol and drug abuse treatment (42 Code of Federal Regulations part 2).

19. A person or entity to conduct utilization review, peer review and quality assurance pursuant to section 36-441, 36-445, 36-2402 or 36-2917.

20. A person maintaining health statistics for public health purposes as authorized by law.

21. A grand jury as directed by subpoena.

22. A person or entity that provides services to the patient's health care provider, as defined in section 12-2291, and with whom the health care provider has a business associate agreement that requires the person or entity to protect the confidentiality of patient information as required by the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 164, subpart E).

23. A county medical examiner or an alternate medical examiner directing an investigation into the circumstances surrounding a death pursuant to section 11-593.

B. Information disclosed pursuant to subsection A, paragraph 7 of this section may include only information that is directly relevant to the person's involvement with the patient's health care or payment related to the patient's health care. Subsection A, paragraph 7 of this section does not prevent a health care entity from obtaining or receiving information about the patient from a family member, friend or other person involved in the patient's care, treatment or supervision. A health care entity shall keep a record of the name and contact information of any person to whom any patient information is released pursuant to subsection A, paragraph 7 of this section. A decision to release or withhold information pursuant subsection A, paragraph 7 of this section is subject to review pursuant to section 36-517.01.

C. Information and records obtained in the course of evaluation, examination or treatment and submitted in any court proceeding pursuant to this chapter or title 14, chapter 5 are confidential and are not public records unless the hearing requirements of this chapter or title 14, chapter 5 require a different procedure. Information and records that are obtained pursuant to this section and submitted in a court proceeding pursuant to title 14, chapter 5 and that are not clearly identified by the parties as confidential and segregated from nonconfidential information and records are considered public records.

D. Notwithstanding subsections A, B and C of this section, the legal representative of a patient who is the subject of a proceeding conducted pursuant to this chapter and title 14, chapter 5 has access to the patient's information and records in the possession of a health care entity or filed with the court.

E. A health care entity that acts in good faith under this article is not liable for damages in any civil action for the disclosure of records or payment records that is made pursuant to this article or as otherwise provided by law. The health care entity is presumed to have acted in good faith. This presumption may be rebutted by clear and convincing evidence.

F. For the purposes of this section, "information" means records and the information contained in records.

§ 36-509.01 Case records; involuntary treatment hearings; confidentiality; definition

A. Except as otherwise provided by law, court rule or court order, the case records of and case information regarding a court proceeding brought under article 4 or 5 of this chapter are not open to public access or inspection.

B. The court, for good cause shown, may authorize the release of case records and case information regarding a court proceeding brought under article 4 or 5 of this chapter.

C. The supreme court may adopt appropriate rules to govern the access to the case records and case information regarding any court action or proceeding brought under article 4 or 5 of this chapter.

D. For the purposes of this section, "case record" has the same meaning as prescribed in rules of the supreme court.

§ 36-510 Patient's compensation for work

If a patient of a mental health treatment agency works, this work shall be in the patient's interest. If the primary purpose of this work is to benefit the mental health treatment agency or any agency of the state, the patient shall be employed and paid in accordance with law. If the purpose of the work is therapeutic, the patient may or may not be paid as circumstances indicate. This therapeutic work shall be part of a planned program of treatment described in the patient's record with the rationale for the work-treatment included. It shall be periodically reviewed by the appropriate agency review procedures. The term "work" does not mean matters of personal housekeeping or personal maintenance.

§ 36-510.01 Notice; personal service of process

A. A person who is ordered to undergo involuntary evaluation has the right to receive by personal service the documents specified in section 36-529, subsection E. A person who is the subject of a petition for court-ordered treatment has the right to receive by personal service the documents specified in section 36-536, subsection D. Personal service shall be completed by a peace officer, a process server or another person authorized by rule 4, Arizona rules of civil procedure, personally handing the documents to the person receiving service. The person who serves the specified documents must file a proof of service with the court that specifies the date, time and manner of service.

B. A county, city or town that employs peace officers may contract with a process server or another person authorized by rule 4, Arizona rules of civil procedure, to provide service pursuant to this section instead of service by a peace officer.

C. An evaluation agency is not financially responsible for serving the documents required by section 36-529, subsection E or section 36-536, subsection D.

§ 36-511 Quality of treatment

A. Subject to the right to refuse psychiatric and medical treatment pursuant to sections 36-512 and 36-513 and pursuant to rules of the administration, every person undergoing evaluation or treatment pursuant to this chapter shall receive physical and psychiatric care and treatment, delivered in a manner that allows the person's family members or guardian to participate in the care and treatment when appropriate, for the full period the person is detained. The agency providing care and treatment shall keep a clinical record for each person that details all medical and psychiatric evaluations and all care and treatment received by the person.

B. An agency administering the care and treatment shall provide and make available to the guardian, if one exists, on request:

1. A written treatment program based on the individual needs of the person.

2. Careful and periodic reexaminations of each person by appropriate professional persons, including a physician. Reexaminations shall be made once each ninety days, and the results shall be a part of the person's medical record.

3. A full physical examination once a year.

4. Adequate medical treatment in the light of present medical knowledge in accordance with the results of these examinations.

C. An agency administering inpatient care and treatment, in conjunction with the community treatment agency and before the release of a patient, shall prepare a plan for the patient's care after release, including arrangements for a place to live and an adequate program for necessary treatment and maintenance, and shall provide the plan to the patient's guardian if one exists. The community treatment agency shall make a good faith effort to initiate treatment with a patient released from an inpatient facility.

§ 36-512 Emergency medical care

A person undergoing evaluation or treatment has a right to refuse any and all medical treatment unless ordered by the court, except that when, in the written opinion of the attending physician, a true medical emergency exists and medical care and treatment including surgical procedures are necessary to save the life, physical health, eyesight, hearing or member of the person, the medical director of the agency may give consent to such medical care and treatment if time will not permit the obtaining of appropriate judicial authority. The patient's guardian, if one exists, shall be notified by the medical director of the giving of emergency medical care immediately.

§ 36-513 Seclusion; restraint; treatment

A person undergoing evaluation pursuant to article 4 of this chapter shall not be treated for his mental disorder unless he consents to such treatment, except that seclusion and mechanical or pharmacological restraints may be employed in the case of emergency for the safety of the person or others. A person undergoing treatment pursuant to article 5 of this chapter shall not be subjected to seclusion or mechanical or pharmacological restraints except in case of emergency for the safety of the person or others or as a part of a written plan for the treatment of the patient, prepared by staff members responsible for his care and pursuant to regulations promulgated by the department. All instances of seclusion or restraint shall be properly recorded in the patient's medical record and the use shall be governed by written procedures of the agency caring for the patient and are subject to the rules and regulations of the department.

§ 36-514 Visitation; telephone; correspondence; religious freedom; legal residence

A. Every person who is detained for evaluation or treatment pursuant to this chapter shall have the following additional rights:

1. To be visited by the person's personal physician or other health care professional, guardian, agent appointed pursuant to chapter 32 of this title, attorney and clergyman or any other person, subject to reasonable limitations as the individual in charge of the agency may direct.

2. To have reasonable access to telephones between the hours of 9:00 a.m. and 9:00 p.m. to make and receive confidential calls. In addition, a person who is confined pursuant to this title is allowed to make two completed local telephone calls within two hours after initial confinement. Long-distance calls are allowed if the patient can pay the agency for them or can properly charge them to another number. The agency may restrict the telephone privileges of a patient if it is notified by the person receiving the calls that the person is being harassed by the calls and wishes them curtailed or halted. Restriction of telephone privileges shall be entered into the patient's clinical record and the information in the record shall be made available on request to the person and that person's attorney, guardian or agent appointed pursuant to chapter 32 of this title.

3. To be furnished with reasonable amounts of stationery and postage and to be allowed to correspond by mail without censorship with any person.

4. To enjoy religious freedom and the right to continue the practice of the person's religion in accordance with its tenets during the detainment, except that this right may not interfere with the operation of the agency.

B. Court-ordered evaluation or treatment pursuant to this chapter does not operate to change the legal residence of a patient.

§ 36-515 Limitation of liability; false application; classification

A. Any person acting in good faith upon either actual knowledge or reliable information who makes application for evaluation or treatment of another person pursuant to this chapter is not subject to civil or criminal liability for such act.

B. Any person who knowingly makes a false statement of a material fact with the intent to cause another to be confined under this chapter is guilty of a class 1 misdemeanor.

§ 36-516 Violation of person's rights

Any knowing violation of a person's rights under this article shall give him a cause of action for the greater of either one thousand dollars or three times the actual amount of damages. It is not a prerequisite to this action that the plaintiff suffer or be threatened with actual damages.

§ 36-517 Cruelty to mentally disordered person; classification

A person guilty of any harsh or cruel treatment of, or any neglect of duty toward a mentally disordered person is guilty of a class 2 misdemeanor.

§ 36-517.01 Review of decisions regarding release of treatment information; notice; appeal; immunity

A. An agency providing evaluation or treatment, on request of a person undergoing evaluation or treatment, a member of his family or his guardian, shall review the treating professional's decision to release or withhold information requested pursuant to section 36-504, subsection B or section 36-509, subsection A, paragraph 7. The agency shall inform a person whose request is denied of his right to a review when it notifies that person of its decision. The agency director or his designee shall conduct the review within five business days after the request for review is made. The review shall include an interview of the person undergoing evaluation or treatment. The agency shall make a decision to uphold or reverse the treating professional's decision within five business days after initiating the review. The agency shall bear the costs of conducting the review. Agency review pursuant to this section does not apply to a decision to release or withhold information made by a nonagency treating professional.

B. A final agency decision made pursuant to subsection A of this section or a decision to release or withhold information made by a nonagency treating professional is subject to judicial review by filing a petition in the superior court within five business days after the agency or nonagency treating professional issues its decision. The court shall hold a hearing on the petition within five business days after the petition is filed. The agency or nonagency treating professional shall not release any treatment information during the period an appeal may be filed or is pending.

C. An agency or nonagency treating professional that makes a decision to release or withhold treatment information in good faith pursuant to section 36-504, subsection B or section 36-509, subsection A, paragraph 7 is not subject to civil liability for this decision.

§ 36-517.02 Limitation of liability; exception; discharge of duty; immunity for disclosure

A. There shall be no cause of action against a mental health provider nor shall legal liability be imposed for breaching a duty to prevent harm to a person caused by a patient, unless both of the following occur:

1. The patient has communicated to the mental health provider an explicit threat of imminent serious physical harm or death to a clearly identified or identifiable victim or victims, and the patient has the apparent intent and ability to carry out such threat.

2. The mental health provider fails to take reasonable precautions.

B. Any duty owed by a mental health provider to take reasonable precautions to prevent harm threatened by a patient is discharged by all of the following:

1. Communicating when possible the threat to all identifiable victims.

2. Notifying a law enforcement agency in the vicinity where the patient or any potential victim resides.

3. Taking reasonable steps to initiate proceedings for voluntary or involuntary hospitalization, if appropriate.

4. Taking any other precautions that a reasonable and prudent mental health provider would take under the circumstances.

C. Whenever a patient has explicitly threatened to cause serious harm to a person or whenever a mental health provider reasonably concludes that a patient is likely to do so, and the mental health provider, for the purpose of reducing the risk of harm, discloses a confidential communication made by or relating to the patient, the mental health provider shall be immune from liability resulting from such disclosure.

D. This section shall not limit and shall be in addition to any other statutory immunitites from liability of mental health providers or mental health treatment agencies as otherwise provided by law.

Article 3 Voluntary Admissions

§ 36-518 Application for voluntary admission; admission to agency; minors; transportation

A. Pursuant to rules of the administration, any person who is eighteen years of age or older and who manifests the capacity to give and gives informed consent may be hospitalized for evaluation, care and treatment by voluntarily applying in writing on a prescribed form. The agency to which the person applies may accept and admit the person if the medical director of the agency or the admitting officer believes that the person needs evaluation or will benefit from care and treatment of a mental disorder or other personality disorder or emotional condition in the agency. Informed consent may be given by the person's guardian pursuant to section 14-5312.01 or agent appointed pursuant to chapter 32, article 6 of this title if that agent was granted the authority to do this by the mental health care power of attorney. If an agent gives informed consent, an evaluation shall be conducted pursuant to section 36-3284.

B. Notwithstanding subsection C of this section, and except in the case of an emergency admission, a minor who is in the custody of the juvenile court, who is a ward of the juvenile court as a dependent child or who is adjudicated delinquent or incorrigible shall not be admitted for evaluation or treatment unless approved by the court on application filed by an entity as provided in section 8-272 or 8-273.

C. A minor may be admitted to a mental health agency as defined in section 8-201 by the written application of the parent, guardian or custodian of the minor, or a person designated by the court if the parent, guardian or custodian is without monetary resources to file an application or could not be located after reasonable efforts and the minor is under the supervision of an adult probation department after the following has occurred:

1. A psychiatric investigation by the medical director of the mental health agency that carefully probes the child's social, psychological and developmental background.

2. An interview with the child by the medical director of the mental health agency.

3. The medical director has explained to the child and the child's parent, guardian or custodian or to the person designated by the court pursuant to this subsection the program of evaluation or treatment contemplated and its probable length.

4. The medical director has explored and considered available alternatives to inpatient treatment or evaluation.

5. The medical director of a mental health agency has determined whether the child needs an inpatient evaluation or will benefit from care and treatment of a mental disorder or other personality disorder or emotional condition in the agency and whether the evaluation or treatment goals can be accomplished in a less restrictive setting. A record of the reasons for this determination shall be made.

D. If the child's situation does not satisfy the requirements of subsection C of this section, the application by the parent, guardian or custodian shall be refused.

E. All emergency admissions for mental health evaluation or treatment of children shall be made pursuant to the standards and procedures in article 4 of this chapter.

F. If a parent, guardian or custodian is unavailable after a reasonable effort has been made to locate the parent, guardian or custodian, the court shall appoint a guardian for the child pursuant to title 14, chapter 5.

G. The board of supervisors of the county of residence of a person who has submitted an application for admission to the state hospital pursuant to subsection A of this section shall provide transportation to the state hospital for the person if it appears that the person is eligible for voluntary admission to the state hospital after consultation between the state hospital and the evaluation or screening agency. The county is responsible for that expense to the extent the expense is not covered by any third-party payor.

§ 36-518.01 Case review of voluntary admission of minor

A. The medical director of a mental health agency shall review the case progress of all minors admitted voluntarily to the agency at least every ten days. The review shall establish the appropriateness of continued placement in a mental health agency according to progress in care and the expected benefits of continued inpatient care and treatment. The review shall include an interview with the minor.

B. The medical director shall state in writing in the minor's clinical record the reasons for continued inpatient care and the objectives desired. The records of the review shall be available to the parent or guardian on request. When the child is a ward of the juvenile court or in custody pursuant to title 8, the case review record shall be forwarded promptly to the juvenile court and the court-appointed custodian of the child.

C. For purposes of this section and section 36-518, "mental health agency" and "medical director of a mental health agency" are as defined in section 8-201.

§ 36-519 Discharge of voluntary patients

A. The medical director of the agency shall discharge any patient admitted voluntarily who has recovered or who is no longer benefiting from the evaluation, care or treatment available, except as provided in subsection B of this section.

B. Upon written request by a patient admitted pursuant to section 36-518, subsection A or by the parent, guardian or custodian of a patient admitted pursuant to section 36-518, subsection C, the patient shall be given a discharge within twenty-four hours after the request, excluding weekends or holidays unless the medical director of the agency has proceeded pursuant to section 36-531, subsections B and C and section 36-533. The costs of such proceedings shall be a charge against the county of the patient's residence.

C. If the medical director of the agency finds that a patient admitted voluntarily is a person with a grave disability and requires the service of a guardian or conservator or both for the protection of health and property, he shall proceed pursuant to section 36-531, subsections B and C and section 36-533 unless it is appropriate to discharge the patient to suitable alternative arrangements for care, treatment and protection.

Article 4 Court-Ordered Evaluation

§ 36-520 Application for evaluation; definition

A. Any responsible individual may apply for a court-ordered evaluation of a person who is alleged to be, as a result of a mental disorder, a danger to self or to others or a person with a persistent or acute disability or a grave disability and who is unwilling or unable to undergo a voluntary evaluation. The application shall be made in the prescribed form and manner as adopted by the director.

B. The application for evaluation shall include the following, if known:

1. The name and address of the proposed patient for whom evaluation is applied.

2. The age, date of birth, sex, race, marital status, occupation, social security number, present location, dates and places of previous hospitalizations, names and addresses of the guardian, agent under a health care power of attorney or mental health care power of attorney, spouse, next of kin and significant other persons and other data that the director may require on the form to whatever extent that this data is known and is applicable to the proposed patient.

3. The name, address and relationship of the person who is applying for the evaluation.

4. A statement that the proposed patient is exhibiting behaviors that may be consistent with a mental disorder and is believed to be, as a result of a mental disorder, a danger to self or to others or a patient with a persistent or acute disability or a grave disability and the facts on which this statement is based.

5. A statement from the applicant of whether the applicant believes that the proposed patient is or is not willing or able to undergo voluntary evaluation and the facts on which this statement is based.

6. A statement of the proposed patient's relevant history of mental health diagnosis, treatment recommended or provided and compliance with the treatment recommended or provided.

7. A statement that the applicant believes the proposed patient is in need of screening, evaluation, supervision, care and treatment and the facts on which this statement is based.

8. Copies of all documents relating to guardianship or powers of attorney that allow the guardian or agent to consent to inpatient psychiatric treatment, which shall be attached to the application if available at the time of the application.

9. A statement by the applicant of whether the applicant believes that, without a period of inpatient observation, stabilization and assessment or emergency inpatient psychiatric hospitalization, the proposed patient is likely to cause or endure serious physical harm or injury and the facts supporting that statement.

10. To the extent known, the names and contact information of persons other than the applicant who have witnessed the behavior exhibited by the proposed patient on which the application is based. The screening agency may not deny or refuse to process an application because no other witnesses have been identified.

C. The application shall be signed and notarized. For an application made by a peace officer or a health care professional who is licensed pursuant to title 32, chapter 13, 15, 17 or 19.1, a copy of the application that contains the applicant's original signature is acceptable, does not have to be notarized and may be submitted as the written application.

D. The screening agency shall offer assistance to the applicant in preparation of the application. On receipt of the application, the screening agency shall immediately note on the front of the application the time and date of receipt, shall log this information in a record of applications received by the screening agency and shall act as prescribed in section 36-521 within forty-eight hours after the filing of the application, excluding weekends and holidays. If the application is not acted on within forty-eight hours, excluding weekends and holidays, the reasons for not acting promptly shall be reviewed by the director of the screening agency or the director's designee and the reasons shall be stated in the report required by section 36-521, subsection B.

E. If the applicant for the court-ordered evaluation presents the person to be evaluated at the screening agency, the agency shall conduct a prepetition screening examination. Except in the case of an emergency evaluation, the person to be evaluated shall not be detained or forced to undergo prepetition screening against the person's will.

F. In the course of conducting a prepetition screening, the screening agency shall accept and consider information relevant to the present behavior and past behavioral health history of the proposed patient from persons who have a significant relationship with the proposed patient, including family members and guardians.

G. If the applicant for the court-ordered evaluation does not present the person to be evaluated at the screening agency, the agency shall conduct the prepetition screening at the home of the person to be evaluated or any other place the person to be evaluated is found. If prepetition screening is not possible, the screening agency shall proceed as prescribed in section 36-521, subsection B.

H. If a person is being treated by prayer or spiritual means alone in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner of that church or denomination, the person may not be ordered evaluated, detained or involuntarily treated unless the court has determined that the person is, as a result of mental disorder, a danger to others or to self.

I. If the application is not acted on because it has been determined that the proposed patient does not need an evaluation, the medical director of the screening agency or the medical director's designee shall make a written statement of the reasons why the proposed patient does not need an evaluation and shall retain the application together with the medical director's statement and any records or reports concerning prepetition screening required pursuant to section 36-521.

J. If the screening agency determines that the application should be denied or if the application is accepted but the screening agency declines to file a petition for court-ordered evaluation, the screening agency shall comply with the requirements of section 36-521, subsection C. If the screening of the proposed patient took place in a facility operated by the screening agency, the screening agency shall attempt to notify the applicant that the screening agency intends to release the proposed patient. The screening agency shall document the time and method of the notification or an unsuccessful attempt to notify the applicant. If requested by the applicant, the medical director of the screening agency or the medical director's designee shall provide the reason for the denial of the application or the decision not to file a petition for court-ordered evaluation if either:

1. The disclosure is not opposed by the person who was screened.

2. The person who was screened is deemed to lack capacity to make the decision to allow the disclosure and the disclosure is deemed to be in the person's best interest.

K. For the purposes of this section, "person" includes a person who:

1. Is under eighteen years of age.

2. Has been transferred to the criminal division of the superior court pursuant to section 8-327 or who has been charged with an offense pursuant to section 13-501.

3. Is under the supervision of an adult probation department.

§ 36-521 Preparation of petition for court-ordered evaluation; procedures for prepetition screening

A. On receiving the application for evaluation, the screening agency, before filing a petition for court-ordered evaluation, shall provide prepetition screening within forty-eight hours excluding weekends and holidays when possible to determine whether there is reasonable cause to believe the person has a persistent or acute disability or a grave disability or is a danger to self or others as a result of a mental disorder, and whether the person will voluntarily receive evaluation at a scheduled time and place.

B. After prepetition screening has been completed, the screening agency shall prepare a report of opinions and conclusions. If prepetition screening is not possible, the screening agency shall prepare a report giving reasons why the screening was not possible and including opinions and conclusions of staff members who attempted to conduct prepetition screening or otherwise investigated the matter.

C. If the prepetition screening agency determines that the application for evaluation is to be denied, the denial shall be stated in writing on the application form and shall be reviewed and confirmed by the medical director of the screening agency or the medical director's designee. If the screening agency determines that although the person does not currently meet the criteria for court-ordered evaluation, there are reasonable grounds to believe that the person has a mental disorder, is in need of further evaluation or treatment and is able and willing to pursue private or public evaluation or treatment services available to the person in the community, the screening agency shall assist the proposed patient in finding specific evaluation or treatment services in the proposed patient's area and, if requested, make a direct referral to a person, agency or organization providing behavioral health services for the purpose of evaluation and treatment.

D. If, based on the allegations of the applicant for the court-ordered evaluation and the prepetition screening report or other information obtained while attempting to conduct a prepetition screening, the agency determines that there is reasonable cause to believe that the proposed patient is, as a result of mental disorder, a danger to self or to others or has a persistent or acute disability or a grave disability and that the proposed patient is unable or unwilling to voluntarily receive evaluation or is likely to present a danger to self or to others, has a grave disability or will further deteriorate before receiving a voluntary evaluation, the agency shall prepare a petition for court-ordered evaluation and shall file the petition, which shall be signed by the person who prepared the petition unless the county attorney performs these functions. If the agency determines that there is reasonable cause to believe that the person is in such a condition that without immediate hospitalization he is likely to harm himself or others, the agency shall take all reasonable steps to procure such hospitalization on an emergency basis.

E. The agency may contact the county attorney in order to obtain assistance in preparing the petition for court-ordered evaluation, and the agency may request the advice and judgment of the county attorney in reaching a decision as to whether the court-ordered evaluation is justified.

F. The county attorney may prepare or sign or file the petition if a court has ordered the county attorney to prepare the petition.

G. If a petition for court-ordered evaluation alleges danger to others as described in section 36-501, the screening agency, before filing such a petition, shall contact the county attorney for a review of the petition. The county attorney shall examine the petition and make one of the following written recommendations:

1. That a criminal investigation is warranted.

2. That the screening agency shall file the petition.

3. That no further proceedings are warranted. The screening agency shall consider the recommendation in determining whether a court-ordered evaluation is justified and shall include the recommendation with the petition if the agency decides to file the petition with the court.

H. The petition shall be made in the form and manner prescribed by the director.

I. If a petition for court-ordered evaluation is filed by a prosecutor pursuant to section 13-4517, a prior application for court-ordered evaluation or prescreening is not necessary.

§ 36-521.01 Considerations for screening, evaluation and involuntary treatment

A. A person who has a substance use disorder without any co-occurring mental disorder may not be considered for involuntary treatment pursuant to article 5 of this chapter. A person who initially presents with impairments consistent with both a mental disorder and a substance use disorder is eligible for screening and evaluation pursuant to this article, and that person may be eligible for involuntary treatment pursuant to article 5 of this chapter if, after considering the person's history, an appropriate assessment of the person's current presentation, and a reasonable period of time to rule out substance abuse as the primary cause of the alleged behavior, the person's presentation is consistent with a mental disorder that would benefit from treatment.

B. A person who has an intellectual disability may not be considered for involuntary treatment pursuant to article 5 of this chapter unless, in addition to the intellectual disability, the person has a mental disorder that would benefit from treatment.

C. A person who presents with declining mental abilities that directly accompany impending death may not be considered for involuntary treatment pursuant to article 5 of this chapter.

D. A person with a character or personality disorder characterized by lifelong and deeply ingrained antisocial behavior patterns, including sexual behaviors that are abnormal and prohibited by statute, may not be considered for involuntary treatment pursuant to article 5 of this chapter unless the person also has a mental disorder that would benefit from treatment.

E. This section does not affect any time frames otherwise prescribed in this chapter.

§ 36-522 Voluntary evaluations; consent; failure to complete; definitions

A. On receipt of an application for court-ordered evaluation, if the petition for court-ordered evaluation is not filed because it has been determined that the proposed patient will voluntarily receive an evaluation and is unlikely to present a danger to self or others until the voluntary evaluation, the evaluation agency provided for by the county, or a licensed behavioral health provider selected by the proposed patient, shall be immediately notified by the evaluation agency and shall provide a voluntary evaluation of the proposed patient at a scheduled time and place within ten days after the notice. The voluntary evaluation may be on an inpatient or outpatient basis and on completion shall be immediately delivered to the evaluation agency provided for by the county. The evaluation agency provided for by the county shall confirm receipt of the voluntary evaluation. If the voluntary evaluation recommends that the patient receive a court-ordered evaluation, the recommendation must be accompanied with an application for court-ordered evaluation.

B. Voluntary inpatient evaluation is subject to article 3 of this chapter. Informed consent for voluntary inpatient evaluation may be granted by the person, the person's court-appointed guardian with inpatient authority or the person's designated agent pursuant to a power of attorney that includes authority to consent to inpatient evaluation or treatment.

C. Voluntary outpatient evaluation shall conform to the requirements of section 36-530, subsection D and section 36-531, subsections B, C and D and shall proceed only after the person to be evaluated has given consent to be evaluated by signing a form prescribed by the director that includes information to the proposed patient that the patient-physician privilege does not apply and that the voluntary outpatient evaluation may result in a petition for the person to undergo court-ordered treatment or for guardianship. Informed consent for voluntary outpatient evaluation may be granted by the person, the person's court-appointed guardian or the person's designated agent pursuant to a power of attorney that includes authority to consent to evaluation or treatment.

D. If the person who requested a voluntary evaluation does not appear or does not complete the appointments scheduled, the evaluation agency provided for by the county shall be immediately notified by the provider who was to conduct the voluntary evaluation. The evaluation agency shall then provide prepetition screening of the application for court-ordered evaluation in accordance with sections 36-521 and 36-521.01.

E. For the purposes of this section:

1. "Licensed behavioral health provider" means any of the following:

(a) A person who is licensed pursuant to title 32, chapter 33 and whose scope of practice allows the person to either:

(i) Independently engage in the practice of behavioral health.

(ii) Except for a licensed addiction technician, engage in the practice of behavioral health under direct supervision.

(b) A psychiatrist.

(c) A psychologist who is licensed pursuant to title 32, chapter 19.1.

(d) A registered nurse practitioner who is licensed pursuant to title 32, chapter 15 and who is certified as an adult psychiatric and mental health nurse.

2. "Practice of behavioral health" has the same meaning prescribed in section 32-3251.

§ 36-523 Petition for evaluation

A. The petition for evaluation shall contain the following:

1. The name, address and interest in the case of the individual who applied for the petition.

2. The name, and address if known, of the proposed patient for whom evaluation is petitioned.

3. The present whereabouts of the proposed patient, if known.

4. A statement alleging that there is reasonable cause to believe that the proposed patient has a mental disorder and is as a result a danger to self or others, has a persistent or acute disability or a grave disability and is unwilling or unable to undergo voluntary evaluation.

5. A summary of the facts that support the allegations that the proposed patient is dangerous, has a persistent or acute disability or a grave disability and is unwilling or unable to be voluntarily evaluated, including the facts that brought the proposed patient to the screening agency's attention.

6. If the petition is filed by a prosecutor pursuant to section 13-4517, any known criminal history of the proposed patient, including whether the proposed patient has ever been found incompetent to stand trial pursuant to section 13-4510.

7. A statement of any facts and circumstances that lead the petitioner to believe that the proposed patient may be safely transported to the evaluation agency by an authorized transporter, if available in the jurisdiction, without the assistance of a peace officer.

8. The petition shall state the names and contact information of any persons known who witnessed the behavior exhibited by the proposed patient on which the petition is based. The agency may not decline to process a petition for court-ordered evaluation because no witnesses acquainted with the proposed patient have been identified.

9. Other information that the director by rule or the court by rule or order may require.

B. The petition shall request that the court issue an order requiring that the proposed patient be given an evaluation and shall advise the court of both of the following:

1. That the opinion of the petitioner is either that the proposed patient is or is not in such a condition that without immediate or continuing hospitalization the patient is likely to suffer serious physical harm or further deterioration or inflict serious physical harm on another person.

2. If the opinion of the petitioner is that the proposed patient is not in the condition described in paragraph 1 of this subsection, that the opinion of the petitioner is either that the evaluation should or should not take place on an outpatient basis.

C. For a petition filed pursuant to sections 36-520 and 36-521:

1. The petition for evaluation shall be accompanied by the application for evaluation, by the recommendation of the county attorney pursuant to section 36-521 and by a prepetition screening report, unless the documents have not been prepared under a provision of law or in accordance with an order of the court. The petition for evaluation shall also be accompanied by a copy of the application for emergency admission if one exists.

2. The petition and other forms required in a court may be filed only by the screening agency that has prepared the petition.

3. If the petition is prepared but not filed because it has been determined that the person no longer needs an evaluation, the medical director of the agency shall make a written statement of the reasons why the evaluation was determined to be no longer necessary and shall retain the petition together with the medical director's statement and the various reports annexed to the petition as required by this section.

4. If the petition is not filed because it has been determined that the person does not need an evaluation and a prosecutor filed a petition pursuant to section 13-4517, the person shall be remanded for a disposition pursuant to section 13-4517. If the person is out of custody, the court may order that the person be taken into custody for a disposition pursuant to this section.

§ 36-524 Application for emergency admission for evaluation; requirements; immunity

A. A written application for emergency admission shall be made to an evaluation agency before a person may be hospitalized in the agency.

B. The application for emergency admission shall be made by a person with knowledge of the facts requiring emergency admission. The applicant may be a relative or friend of the person, a peace officer, the admitting officer or another responsible person.

C. The application shall be made on a prescribed form and shall include the following:

1. A statement by the applicant that the applicant believes that the person, as a result of a mental disorder, is a danger to self or others, has a persistent or acute disability or a grave disability and is unable or unwilling to undergo voluntary evaluation and that during the time necessary to complete the prepetition screening procedures set forth in sections 36-520 and 36-521 the person is likely without immediate hospitalization to suffer serious physical harm or serious illness or is likely to inflict serious physical harm on another person.

2. The specific nature of the harm or illness the person is likely to suffer or inflict without immediate hospitalization.

3. A summary of the facts that support the statements made by the applicant, including the observations of persons who witnessed the events described in the statements or the behaviors of the person who is the subject of the application.

4. The signature of the applicant.

D. A telephonic application may be made not more than twenty-four hours before a written application. A telephonic application shall be made by a peace officer or a police officer who is an employee of the United States department of veterans affairs or in the presence of a peace officer unless the application is made by a health care professional who is licensed pursuant to title 32, chapter 13, 15, 17 or 19.1 and who is directly involved with the care of a patient who is in a health care institution licensed in this state. For an application made by a peace officer, a police officer who is an employee of the United States department of veterans affairs or a health care professional who is licensed pursuant to title 32, chapter 13, 15, 17 or 19.1, a copy of the application that contains the applicant's original signature is acceptable, does not have to be notarized and may be submitted as the written application.

E. If the person to be admitted is not already present at the evaluation agency and if the admitting officer, based on a review of the written or telephonic application and conversation with the applicant and a peace officer or a police officer who is an employee of the United States department of veterans affairs, has reasonable cause to believe that an emergency examination is necessary, the admitting officer may advise the peace officer or the police officer who is an employee of the United States department of veterans affairs that sufficient grounds exist to take the person into custody and to transport the person to the evaluation agency. The peace officer or the police officer who is an employee of the United States department of veterans affairs, on the request of the admitting officer of the evaluation agency pursuant to this subsection, shall apprehend and transport the person to the evaluation agency. The admitting officer shall not be held civilly liable for any acts committed by a person whom the admitting officer did not advise to be taken into custody if the admitting officer has in good faith followed the requirements of this section.

F. If the application for emergency admission is denied, the application shall be retained by the evaluation agency together with a written statement by the medical director of the evaluation agency or the director's designee stating the specific reasons why the application was denied.

§ 36-525 Apprehension and transportation by peace and police officers; immunity

A. If the procedures set forth in section 36-524 are not available, a peace officer may take into custody any individual the peace officer has probable cause to believe is, as a result of mental disorder, a danger to self or others, and if during the time necessary to complete the prepetition screening procedures set forth in sections 36-520 and 36-521 the person is likely without immediate hospitalization to suffer serious physical harm or serious illness or to inflict serious physical harm on another person. The peace officer shall transport the person to a screening agency unless the person's condition or the agency's location or hours makes such transportation impractical, in which event the person shall be transported to an evaluation agency. A peace officer is not held civilly liable for any acts committed by a person whom the peace officer has not taken into custody pursuant to this section.

B. A police officer who is an employee of the United States department of veterans affairs may take into custody and transport to a screening agency or an evaluation agency, as applicable, a person who is a veteran of the United States armed forces, consistent with subsection A of this section.

C. If apprehension takes place on or about the premises of the apprehended person, the peace officer or the police officer who is an employee of the United States department of veterans affairs shall take reasonable precautions to safeguard the premises and the property on the premises, unless the property and premises are in the possession of a responsible relative or guardian.

D. A peace officer or a police officer who is an employee of the United States department of veterans affairs who makes a good faith effort to follow the requirements of this section is not subject to civil liability.

§ 36-526 Emergency admission; examination; petition for court-ordered evaluation

A. On presentation of the person for emergency admission, an admitting officer of an evaluation agency shall perform an examination of the person's psychiatric and physical condition and may admit the person to the agency as an emergency patient if the admitting officer finds, as a result of the examination and investigation of the application for emergency admission, that there is reasonable cause to believe that the person, as a result of a mental disorder, is a danger to self or others, has a persistent or acute disability or a grave disability and is unable or unwilling to undergo voluntary evaluation and that during the time necessary to complete the prepetition screening procedures set forth in sections 36-520 and 36-521 the person is likely without immediate hospitalization to suffer serious physical harm or serious illness or to inflict serious physical harm on another person. If a person is hospitalized pursuant to this section, the admitting officer may notify a screening agency and seek its assistance or guidance in developing alternatives to involuntary confinement and in counseling the person and the person's family.

B. On the same or a succeeding court day, the medical director in charge of the agency shall file a petition for a court-ordered evaluation, unless the person has been discharged or has become a voluntary patient. The petition need not comply with the provisions of this chapter requiring preparation and filing of a prepetition screening report but shall meet all other requirements and shall seek an appropriate order pursuant to section 36-529.

§ 36-527 Discharge and release; relief from civil liability

A. A person taken into custody for emergency admission may not be detained longer than twenty-four hours excluding weekends and holidays following such detention unless a petition for court-ordered evaluation is filed.

B. A person admitted for emergency evaluation may be released at any time if, in the opinion of the medical director in charge of the evaluation agency, release is appropriate. The medical director shall not be held civilly liable for any acts committed by a released patient if the medical director has in good faith followed the requirements of this article. The patient may continue care and treatment in the agency if he signs a voluntary application.

C. If a person admitted for emergency evaluation is released, the application for emergency admission shall be retained together with a written statement by the medical director of the evaluation agency stating why the release was appropriate.

§ 36-528 Emergency patients; duties of agency; notification of family member; right to counsel

A. A person detained under emergency detention shall be offered treatment for his mental disorder to which he may consent. The person shall not be treated for his mental disorder without his express consent, except that seclusion and mechanical or pharmacological restraints may be employed as emergency measures for the safety of the person or others pursuant to section 36-513.

B. At the time a person is taken into custody for emergency evaluation, the medical director in charge of the evaluation agency shall, subject to the provisions of section 36-504, notify the person's guardian or, if none, a member of the family other than a person who has made application for emergency evaluation, if known, of the person's presence at the agency.

C. At the earliest time possible during the evaluation, the agency shall inquire into the need to safeguard and preserve the person's personal property or premises. If no responsible relative or guardian is in possession of the property or premises it shall proceed pursuant to the provisions of section 36-508, subsection C.

D. The person detained shall be informed of his rights as stated in this section and in article 2 of this chapter, including the right to consult an attorney. He shall be advised that if he cannot employ an attorney, the court will appoint one for him. The person shall be advised that if a petition for evaluation is filed, the court will appoint the person an attorney to consult with and, if he cannot employ his own counsel, to represent him.

§ 36-529 Order for evaluation; order for detention; hearing; personal service of court orders

A. If, from the review of the petition for evaluation, the court does not determine that the proposed patient is likely to present a danger to self or others or further deteriorate before the proposed patient's hearing on court-ordered treatment, but determines that there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to self or others or has a persistent or acute disability or a grave disability, the court shall issue an order directing the proposed patient to submit to an evaluation at a designated time and place, specifying that the evaluation will take place on an inpatient or an outpatient basis. The court may also order that, if the person does not or cannot so submit, the person be taken into custody by a peace officer and delivered to an evaluation agency. If the court makes such a conditional order, it shall also make a conditional appointment of counsel for the person to become effective when and if the person is taken into custody pursuant to this section.

B. If, from review of the petition for evaluation, there is reasonable cause to believe that the proposed patient is, as a result of a mental disorder, a danger to self or others or has a persistent or acute disability or a grave disability and that the person requires immediate or continued hospitalization before the proposed patient's hearing on court-ordered treatment, the court shall order the proposed patient taken into custody and evaluated at an evaluation agency. The court shall promptly appoint counsel for the proposed patient. If an intercounty agreement authorizes the same, the court may order that the evaluation be conducted in another county, and the superior court in the county where the evaluation is conducted has concurrent jurisdiction to make appropriate orders concerning the proposed patient.

C. If the person is not taken into custody or if the evaluation pursuant to the order of the court under subsection A or B of this section is not initiated within fourteen days after the date of the order, the order and petition for evaluation expire. If a prosecutor filed a petition pursuant to section 13-4517, the court and the prosecuting agency shall receive notice of the expiration of the order for evaluation. The court may enter any orders necessary for further disposition pursuant to section 13-4517, including a pickup order directing that the person be taken into custody. This subsection does not prevent any person from initiating another court-ordered evaluation of the person pursuant to this chapter.

D. If the person is involuntarily hospitalized, the person shall be informed by the person's appointed attorney of the right to a hearing to determine whether the person should be involuntarily hospitalized for evaluation and to be represented at the hearing by an attorney. If the person requests a hearing to determine whether the person should be involuntarily hospitalized during evaluation, the court shall schedule a hearing at its earliest opportunity.

E. A copy of any order issued by the court pursuant to subsection A or B of this section, together with a copy of the petition for court-ordered evaluation, shall be personally served on the proposed patient as prescribed by law or court rule or as ordered by the court.

§ 36-530 Evaluation and treatment

A. A person who is admitted to an evaluation agency shall receive an evaluation as soon as possible after the court's order for evaluation and, subject to the provisions of sections 36-512 and 36-513 concerning the person's right to refuse treatment, receive care and treatment as required by the person's condition for the full period that the person is hospitalized. A clinical record shall be kept for each person that details all medical and psychiatric evaluations and all care and treatment received by the person.

B. A person receiving an evaluation on an inpatient basis will remain in the facility during the evaluation, which shall be completed in less than seventy-two hours. Unless the person is released or admitted on a voluntary basis, the filing of the petition for court-ordered treatment shall be completed within seventy-two hours, excluding weekends and holidays.

C. A person being evaluated on an outpatient basis will not remain in the facility overnight but will be examined during the usual outpatient working hours of the facility on a schedule of appointments. The evaluation will be completed not later than the fourth day after the first appointment, excluding Saturdays, Sundays and holidays.

D. If a person who has been directed by court order to appear for evaluation does not appear, or in the case of an outpatient evaluation does not complete the appointments scheduled, the evaluation agency shall notify the court and the person's guardian, if any, of the known facts and circumstances and, if appropriate, request that the court order the patient taken into custody for evaluation on an inpatient basis.

E. In the course of conducting an evaluation, the evaluation agency shall solicit, accept and consider information relevant to the present behavior and past behavioral health history of the proposed patient from persons known to the agency who have a significant relationship with the proposed patient, including family members and guardians.

§ 36-531 Evaluation; possible dispositions; release

A. A person who is being evaluated on an inpatient basis in an evaluation agency shall be released if, in the opinion of the medical director of the agency, further evaluation is not appropriate unless the person applies for further care and treatment on a voluntary basis.

B. If it is determined on an evaluation of the patient's condition that the patient is, as a result of a mental disorder, a danger to self or to others or has a persistent or acute disability or a grave disability, the medical director in charge of the agency that provided the evaluation, unless the person applies for further care and treatment on a voluntary basis, shall prepare, sign and file a petition for court-ordered treatment on the same or a succeeding court day unless the county attorney performs the functions of preparing, signing or filing the petition as provided in subsection C of this section.

C. The agency may contact the county attorney to obtain assistance in preparing the petition for court-ordered treatment, and the agency may request the advice and judgment of the county attorney in reaching a decision as to whether court-ordered treatment is justified.

D. A person who is being evaluated on an inpatient basis in an evaluation agency shall be released within seventy-two hours, excluding weekends and holidays, from the time that the person is hospitalized pursuant to a court order for evaluation, unless the person applies for further care and treatment on a voluntary basis or unless a petition for court-ordered treatment has been filed pursuant to subsection B of this section.

E. If a prosecutor filed a petition pursuant to section 13-4517, the medical director of an evaluation agency shall provide notice within twenty-four hours to the court and the prosecuting agency of the medical director's intention to release the person under this section. If the person has been remanded to an evaluation agency pursuant to section 13-4517, the evaluation agency shall detain the person for an additional twenty-four hours to allow for the provision of any required notices. The medical director shall provide the patient's records, including medical and treatment records, to the court and the prosecuting agency.

F. The administration may conduct jointly with a school district, directly or indirectly, an educational evaluation pursuant to sections 15-765 and 15-766 for nonadjudicated youth. The evaluation information may be shared by and among authorized personnel employed by the administration and the department of education, or authorized personnel from the local education agency, for purposes of ensuring the provision of special education and related services as required by the individuals with disabilities education act (20 United States Code sections 1400 through 1415).

G. If a person who is being evaluated on an inpatient basis is released pursuant to this section, the medical director of the evaluation agency shall make a written statement on a form and in a manner prescribed by the director stating why further evaluation was not appropriate and why release was appropriate. A copy of this written statement shall be filed with the court that entered the order for court-ordered evaluation to be filed as a part of the court record and shall be made a part of the patient's medical record.

Article 5 Court-Ordered Treatment

§ 36-533 Petition for treatment

A. The petition for court-ordered treatment shall allege:

1. That the patient is in need of a period of treatment because the patient, as a result of mental disorder, is a danger to self or to others or has a persistent or acute disability or a grave disability.

2. The treatment alternatives that are appropriate or available.

3. That the patient is unwilling to accept or incapable of accepting treatment voluntarily.

B. The petition shall be accompanied by the affidavits of the two physicians who participated in the evaluation and by the affidavit of the applicant for the evaluation, if any. In a county with a population of less than five hundred thousand persons, the petition may be accompanied by the affidavits of one physician and either one physician assistant who is experienced in psychiatric matters or one psychiatric and mental health nurse practitioner who conducted an independent evaluation and by the affidavit of the applicant for the evaluation, if any. The affidavits of the physicians or other health professionals shall describe in detail the behavior that indicates that the person, as a result of mental disorder, is a danger to self or to others or has a persistent or acute disability or a grave disability and shall be based on the physician's or other health professional's observations of the patient and study of information about the patient. A summary of the facts that support the allegations of the petition shall be included. The affidavit shall also include any of the results of the physical examination of the patient if relevant to the patient's psychiatric condition.

C. The petition shall request the court to issue an order requiring the person to undergo a period of treatment. If a prosecutor filed a petition pursuant to section 13-4517, the petition must be accompanied by any known criminal history of the person and any previous findings of incompetency.

D. If the petition requests the court to determine that the patient is chronically resistant to treatment pursuant to section 36-550.09, the petition shall allege the facts that support the request.

E. The petition shall also include:

1. A statement that in the opinion of the petitioner the person does or does not require guardianship or conservatorship, or both, under title 14 and the reasons on which the statement is based.

2. A request that the court order an independent investigation and report for the court if in the opinion of the petitioner the person does require guardianship or conservatorship, or both.

3. A statement that in the opinion of the petitioner the person does or does not require temporary guardianship or conservatorship, or both, and the reasons on which the statement is based.

4. A request that the court appoint a temporary guardian or conservator, or both, if in the opinion of the petitioner the person does require temporary guardianship or conservatorship, or both.

5. If the person has an existing guardian, a statement identifying the existing guardian and a request that the court consider imposing additional duties on the existing guardian pursuant to section 14-5312.01.

F. If the petition contains a request for court action pursuant to subsection E of this section, a copy of the petition shall be mailed to any person or agency that is nominated as guardian or conservator or the person who is identified as an existing guardian.

G. A copy of all petitions shall be mailed to the superintendent of the Arizona state hospital.

H. On the filing of a petition for court-ordered treatment, if the patient is not detained in an evaluation agency when the petition is filed, the petition shall contain a statement of any facts and circumstances that lead the petitioner to believe that the proposed patient may be safely transported to the evaluation agency pursuant to section 36-535 by an authorized transporter, if available in the jurisdiction, without the assistance of a peace officer.

§ 36-534 Change to voluntary status; discharge; notice; hearing

A. If, after a petition for court-ordered treatment has been filed and prior to the hearing, the medical director of the evaluation agency finds that it is more appropriate to discharge the patient or to admit the proposed patient on a voluntary basis, the medical director, after receiving approval from the court, shall either discharge the patient or admit the patient for further treatment on a voluntary basis.

B. If the court approves admitting a patient for whom a petition has been filed by a prosecutor pursuant to section 13-4517 to voluntary treatment or before a patient is discharged pursuant to this section, the medical director shall provide notice to the prosecuting agency at least twenty-four hours before releasing or discharging the patient. The evaluation agency shall detain the person for an additional twenty-four hours to allow for notification to the prosecuting agency. The prosecuting agency may request a hearing to determine whether the court should order the defendant returned to custody for a disposition pursuant to section 13-4517. For any hearing held pursuant to this subsection, the court shall order the medical director to provide the patient's records, including medical and treatment records, to the court and to the prosecuting agency.

§ 36-535 Detention of proposed patient; time of hearing; released patient; intervention by department

A. If, on the filing of a petition for court-ordered treatment, the patient is not then detained in an agency, the court shall order the detention of the patient in the agency that conducted the evaluation if the court determines that the patient is likely to present a danger to self or others before the conclusion of the hearing or is not likely to appear at the hearing on the petition if not detained. The court shall issue such orders as are necessary to provide for the apprehension, transportation and detention of the proposed patient. The court shall appoint counsel for the proposed patient if one has not been previously appointed.

B. The court shall order the hearing to be held within six business days after the petition is filed, except that, on good cause shown, the court may continue the hearing at the request of either party. The hearing may be continued for a maximum of thirty days at the request of the proposed patient. The hearing may be continued for a maximum of three business days at the request of the petitioner. If the hearing is continued at the request of the petitioner and the proposed patient is involuntarily hospitalized, the proposed patient may request a hearing to determine whether the proposed patient should be involuntarily hospitalized during the continuation period.

C. If after reviewing the petition with its attached material and other evidence at hand the court finds that the patient is not, as a result of mental disorder, a danger to self or others or does not have a persistent or acute disability or a grave disability, the patient shall be released.

D. The department, acting on behalf of the state hospital, the administration or a regional behavioral health authority, may intervene as a party to the proceedings on any petition for court-ordered treatment and may appear as a party at the hearing on the petition by filing a written notice of intervention with the clerk of the superior court in the county in which the petition was filed, at any time before either the original time set for the hearing or the time to which the hearing is continued. The intervenor at the hearing may cross-examine any witnesses presented by other parties pursuant to section 36-539, may subpoena and present witnesses of its own, including physicians, and may present other evidence. The intervenor, on stipulation with all other parties or on order of the court, may cause physicians to personally conduct mental status examinations of the proposed patient and to testify as to their opinions concerning whether the proposed patient is, as a result of mental disorder, a danger to self or to others or has a persistent or acute disability or a grave disability and as to whether the proposed patient requires treatment. This subsection applies in addition to all rules of evidence, the Arizona rules of civil procedure and section 36-539.

§ 36-536 Service of petition, affidavit and notice of hearing; counsel for proposed patient; notice; personal service; guardian

A. At least seventy-two hours before the court conducts the hearing on the petition for court-ordered treatment, a copy of the petition, affidavits in support of the petition and the notice of the hearing shall be served on the patient, who shall be informed of the purpose of the hearing and advised of the patient's right to consult counsel. If the patient has not employed counsel, counsel shall be appointed by the court at least three days before the hearing. If at the time of the petition for evaluation the patient had counsel, the same attorney should, if possible, be appointed to represent the patient at the hearing for court-ordered treatment.

B. The notice provisions of this section cannot be waived.

C. The notice of the hearing shall fix the time and place for the hearing, which shall be held in the courtroom or other place within the county that the court designates to ensure humane treatment with due regard to the comfort and safety of the patient and others.

D. A copy of the petition, affidavits in support of the petition and notice of hearing shall be personally served on the proposed patient as prescribed by law or court rule or as ordered by the court.

E. The petitioner shall serve a copy of the petition, affidavits in support of the petition and the notice of the hearing on any guardian identified in the petition. In lieu of personal service, a guardian may provide a written acknowledgment that the guardian has received the documents. The petitioner shall complete service on the guardian at least two calendar days before the hearing on the petition, but failure to serve the guardian is not grounds for dismissing the petition.

§ 36-537 Powers and duties of counsel

A. The medical director of the agency that conducted the evaluation, at least seventy-two hours before the hearing, shall make available to the patient's attorney copies of the petition for evaluation, the prepetition screening report, the evaluation report, the patient's medical records for the current admission and a list of alternatives to court-ordered treatment that are used in similar cases with an explanation of why they are not appropriate or available.

B. The patient's attorney, for all hearings, whether for evaluation or treatment, shall fulfill the following minimal duties:

1. Within twenty-four hours of appointment, conduct an interview of the patient. The attorney shall explain to the patient the patient's rights pending court-ordered treatment, the procedures leading to court-ordered treatment, the standards for court-ordered treatment, the alternative of becoming a voluntary patient and whether stipulations at the hearing are appropriate. If the attorney is appointed, the attorney also shall explain that the patient can obtain the patient's own counsel at the patient's own expense and that, if it is later determined that the person is not indigent, the person will be responsible for the fees of the appointed attorney for services rendered after the initial attorney-client conference.

2. At least twenty-four hours before the hearing, review the petition for evaluation, prepetition screening report, evaluation report, petition for treatment, the patient's medical records and the list of alternatives to court-ordered treatment.

3. At least twenty-four hours before the hearing, interview the petitioner, if available, and the petitioner's supporting witnesses, if known and available.

4. At least twenty-four hours before the hearing, interview the physicians or the psychiatric and mental health nurse practitioner who will testify at the hearing, if available, and investigate the possibility of alternatives to court-ordered treatment.

C. Failure of the attorney to fulfill at least the duties prescribed by subsection B may be punished as contempt of court.

D. At a hearing held pursuant to this article, the patient's attorney may enter stipulations on behalf of the patient.

§ 36-538 Independent evaluator

At all hearings conducted pursuant to sections 36-539, 36-543 and 36-546, a person has the right to have an analysis of the person's mental condition by an independent evaluator. If the person is unable to afford an evaluation, the court shall appoint an independent evaluator acceptable to the patient from a list of physicians, psychiatric and mental health nurse practitioners with sufficient relevant experience as determined by the medical director and psychologists who are willing to accept court-appointed evaluations.

§ 36-539 Conduct of hearing; record; transcript

A. The medical director of the evaluation agency shall issue instructions to the physicians or the psychiatric and mental health nurse practitioner of the evaluation agency who is treating the proposed patient to take all reasonable precautions to ensure that at the time of the hearing the proposed patient is not so under the influence of or does not so suffer the effects of drugs, medication or other treatment as to be hampered in preparing for or participating in the hearing. If the proposed patient is being treated as an inpatient by the evaluation agency, the court at the time of the hearing shall be presented a record of all drugs, medication or other treatment that the person has received during the seventy-two hours immediately before the hearing.

B. The patient and the patient's attorney shall be present at all hearings, and the patient's attorney may subpoena and cross-examine witnesses and present evidence. The patient may choose to not attend the hearing or the patient's attorney may waive the patient's presence. The evidence presented by the petitioner or the patient shall include the testimony of two or more witnesses, regardless of the witnesses' professional licensure, if any, who observed or were acquainted with the patient at the time of the alleged mental disorder before the submission of the current application for evaluation pursuant to section 36-520 or, if after the submission of the current application, who were not formal participants in the evaluation process. The testimony of the witnesses shall be limited to observed facts and may not include expert opinion or conclusions. The witness testimony may be satisfied by a statement agreed on by the parties and testimony of the two physicians or other health professionals who participated in the evaluation of the patient pursuant to section 36-533, which may be satisfied by stipulating to the admission of the affidavits as required pursuant to section 36-533, subsection B. The evaluating physicians or other health professionals shall testify as to their personal observations of the patient. They shall also testify as to their opinions concerning whether the patient is, as a result of mental disorder, a danger to self or to others or has a persistent or acute disability or a grave disability and as to whether the patient requires treatment. Such testimony shall state specifically the nature and extent of the danger to self or to others, the persistent or acute disability or the grave disability. If the patient has a grave disability, the evaluating physicians or other health professionals shall testify concerning the need for guardianship or conservatorship, or both, and whether or not the need is for immediate appointment. Other persons who have participated in the evaluation of the patient or, if further treatment was requested by a mental health treatment agency, persons of that agency who are directly involved in the care of the patient shall testify at the request of the court or of the patient's attorney. Witnesses shall testify as to placement alternatives appropriate and available for the care and treatment of the patient. The clinical record of the patient for the current admission shall be available and may be presented in full or in part as evidence at the request of the court, the county attorney or the patient's attorney.

C. If the patient, for medical or psychiatric reasons, is unable to be present at the hearing and cannot appear by other reasonably feasible means, the court shall require clear and convincing evidence that the patient is unable to be present at the hearing and on such a finding may proceed with the hearing in the patient's absence.

D. The requirements of subsection B of this section are in addition to all rules of evidence and the Arizona rules of civil procedure, not inconsistent with subsection B of this section.

E. A verbatim record of all proceedings under this section shall be made by stenographic means by a court reporter if a written request for a court reporter is made by any party to the proceedings at least twenty-four hours in advance of such proceedings. If stenographic means are not requested in the manner provided by this subsection, electronic means shall be directed by the presiding judge. The stenographic notes or electronic tape shall be retained as provided by statute.

F. A patient who has been ordered to undergo treatment may request a certified transcript of the hearing. To obtain a copy, the patient shall pay for a transcript or shall file an affidavit that the patient is without means to pay for a transcript. If the affidavit is found true by the court, the expense of the transcript is a charge on the county in which the proceedings were held, or, if an intergovernmental agreement by the counties has required evaluation in a county other than that of the patient's residence, such expense may be charged to the county of the patient's residence or in which the patient was found before evaluation.

§ 36-540 Court options; immunity; rules

A. If the court finds by clear and convincing evidence that the proposed patient, as a result of mental disorder, is a danger to self, is a danger to others or has a persistent or acute disability or a grave disability and is in need of treatment, and is either unwilling or unable to accept voluntary treatment, the court shall order the patient to undergo one of the following:

1. Treatment in a program of outpatient treatment.

2. Treatment in a program consisting of combined inpatient and outpatient treatment.

3. Inpatient treatment in a mental health treatment agency, in a hospital operated by or under contract with the United States department of veterans affairs to provide treatment to eligible veterans pursuant to article 9 of this chapter, in the state hospital or in a private hospital, if the private hospital agrees, subject to the limitations of section 36-541.

B. The court shall consider all available and appropriate alternatives for the treatment and care of the patient. The court shall order the least restrictive treatment alternative available.

C. The court may order the proposed patient to undergo outpatient or combined inpatient and outpatient treatment pursuant to subsection A, paragraph 1 or 2 of this section if the court:

1. Determines that all of the following apply:

(a) The patient does not require continuous inpatient hospitalization.

(b) The patient will be more appropriately treated in an outpatient treatment program or in a combined inpatient and outpatient treatment program.

(c) The patient will follow a prescribed outpatient treatment plan.

(d) The patient will not likely become dangerous or suffer more serious physical harm or serious illness or further deterioration if the patient follows a prescribed outpatient treatment plan.

2. Is presented with and approves a written treatment plan that conforms with the requirements of section 36-540.01, subsection B. If the court determines that the patient meets the requirements of section 36-550.09, the court may order the patient to be placed in a secure behavioral health residential facility that is licensed by the department pursuant to section 36-425.06. If the treatment plan presented to the court pursuant to this subsection provides for supervision of the patient under court order by a mental health agency that is other than the mental health agency that petitioned or requested the county attorney to petition the court for treatment pursuant to section 36-531, the treatment plan must be approved by the medical director of the mental health agency that will supervise the treatment pursuant to subsection E of this section.

D. An order to receive treatment pursuant to subsection A, paragraph 1 or 2 of this section shall not exceed three hundred sixty-five days. The period of inpatient treatment under a combined treatment order pursuant to subsection A, paragraph 2 of this section shall not exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F of this section.

E. If the court enters an order for treatment pursuant to subsection A, paragraph 1 or 2 of this section, all of the following apply:

1. The court shall designate the medical director of the mental health treatment agency that will supervise and administer the patient's treatment program.

2. The medical director shall not use the services of any person, agency or organization to supervise a patient's outpatient treatment program unless the person, agency or organization has agreed to provide these services in the individual patient's case and unless the department has determined that the person, agency or organization is capable and competent to do so.

3. The person, agency or organization assigned to supervise an outpatient treatment program or the outpatient portion of a combined treatment program shall be notified at least three days before a referral. The medical director making the referral and the person, agency or organization assigned to supervise the treatment program shall share relevant information about the patient to provide continuity of treatment.

4. The court may order the medical director to provide notice to the court of any noncompliance with the terms of a treatment order.

5. During any period of outpatient treatment under subsection A, paragraph 2 of this section, if the court, on its own motion, on request of a guardian pursuant to paragraph 7 of this subsection or on motion by the medical director of the patient's outpatient mental health treatment facility, determines that the patient is not complying with the terms of the order or that the outpatient treatment plan is no longer appropriate and the patient needs inpatient treatment, the court, without a hearing and based on the court record, the patient's medical record, the affidavits and recommendations of the medical director, and the advice of staff and physicians or the psychiatric and mental health nurse practitioner familiar with the treatment of the patient, may enter an order amending its original order. The amended order may alter the outpatient treatment plan or order the patient to inpatient treatment pursuant to subsection A, paragraph 3 of this section. The amended order shall not increase the total period of commitment originally ordered by the court or, when added to the period of inpatient treatment provided by the original order and any other amended orders, exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F of this section. If the patient refuses to comply with an amended order for inpatient treatment, the court, on its own motion or on the request of the medical director, may authorize and direct a peace officer to take the patient into protective custody and transport the patient to the agency for inpatient treatment. Any authorization, directive or order issued to a peace officer to take the patient into protective custody shall include the patient's criminal history and the name and telephone numbers of the patient's case manager, guardian, spouse, next of kin or significant other, as applicable. When reporting to or being returned to a treatment agency for inpatient treatment pursuant to an amended order, the patient shall be informed of the patient's right to judicial review and the patient's right to consult with counsel pursuant to section 36-546.

6. During any period of outpatient treatment under subsection A, paragraph 2 of this section, if the medical director of the outpatient treatment facility in charge of the patient's care determines, in concert with the medical director of an inpatient mental health treatment facility who has agreed to accept the patient, that the patient is in need of immediate acute inpatient psychiatric care because of behavior that is dangerous to self or to others, the medical director of the outpatient treatment facility may order a peace officer to apprehend and transport the patient to the inpatient treatment facility pending a court determination on an amended order under paragraph 5 of this subsection. The patient may be detained and treated at the inpatient treatment facility for a period of not more than forty-eight hours, exclusive of weekends and holidays, from the time that the patient is taken to the inpatient treatment facility. The medical director of the outpatient treatment facility shall file the motion for an amended court order requesting inpatient treatment not later than the next working day following the patient being taken to the inpatient treatment facility. Any period of detention within the inpatient treatment facility pending issuance of an amended order shall not increase the total period of commitment originally ordered by the court or, when added to the period of inpatient treatment provided by the original order and any other amended orders, exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F of this section. If a patient is ordered to undergo inpatient treatment pursuant to an amended order, the medical director of the outpatient treatment facility shall inform the patient of the patient's right to judicial review and to consult with an attorney pursuant to section 36-546.

7. If there is a court order for treatment and a guardianship with additional mental health authority pursuant to section 14-5312.01 existing at the same time, the treatment and placement decisions made by the treatment agency assigned by the court to supervise and administer the patient's treatment program pursuant to the court order for treatment are controlling unless the court orders otherwise. During any period of outpatient treatment, the guardian of a patient may file a report with the court that addresses whether the patient is complying with the terms of the order, whether the outpatient treatment plan is still appropriate and whether the patient needs inpatient treatment. The report shall state in detail the facts on which the guardian relies and may include other supporting documents. A copy of the report and other supporting documents shall be given to the patient's attorney and the outpatient treatment agency. After reviewing the report and any supporting documents filed with the report, if the court determines that there is reasonable cause to believe that the patient is not complying with the terms of the order, that the outpatient treatment plan is no longer appropriate or that the patient needs inpatient treatment, the court must set a conference or a hearing or take other action described in paragraph 5 of this subsection.

F. The maximum periods of inpatient treatment that the court may order, subject to the limitations of section 36-541, subsection D, are as follows:

1. Ninety days for a person found to be a danger to self.

2. One hundred eighty days for a person found to be a danger to others.

3. One hundred eighty days for a person found to have a persistent or acute disability.

4. Three hundred sixty-five days for a person found to have a grave disability.

G. If, on finding that the patient meets the criteria for court-ordered treatment pursuant to subsection A of this section, the court also finds that there is reasonable cause to believe that the patient is an incapacitated person as defined in section 14-5101 or is a person in need of protection pursuant to section 14-5401 and that the patient is or may be in need of guardianship or conservatorship, or both, the court may order an investigation concerning the need for a guardian or conservator, or both, and may appoint a suitable person or agency to conduct the investigation. The appointee may include a court-appointed guardian ad litem, an investigator appointed pursuant to section 14-5308 or the public fiduciary if there is no person willing and qualified to act in that capacity. The court shall give notice of the appointment to the appointee within three days after the appointment. The appointee shall submit the report of the investigation to the court within twenty-one days. The report shall include recommendations as to who should be guardian or who should be conservator, or both, and a report of the findings and reasons for the recommendation. If the investigation and report so indicate, the court shall order the appropriate person to submit a petition to become the guardian or conservator, or both, of the patient.

H. In any proceeding for court-ordered treatment in which the petition alleges that the patient is in need of a guardian or conservator and states the grounds for that allegation, the court may appoint an emergency temporary guardian or conservator, or both, for a specific purpose or purposes identified in its order and for a specific period of time not to exceed thirty days if the court finds that all of the following are true:

1. The patient meets the criteria for court-ordered treatment pursuant to subsection A of this section.

2. There is reasonable cause to believe that the patient is an incapacitated person as defined in section 14-5101 or is in need of protection pursuant to section 14-5401, paragraph 2.

3. The patient does not have a guardian or conservator and the welfare of the patient requires immediate action to protect the patient or the ward's property.

4. The conditions prescribed pursuant to section 14-5310, subsection B or section 14-5401.01, subsection B have been met.

I. The court may appoint as a temporary guardian or conservator pursuant to subsection H of this section a suitable person or the public fiduciary if there is no person qualified and willing to act in that capacity. The court shall issue an order for an investigation as prescribed pursuant to subsection G of this section and, unless the patient is represented by independent counsel, the court shall appoint an attorney to represent the patient in further proceedings regarding the appointment of a guardian or conservator. The court shall schedule a further hearing within fourteen days on the appropriate court calendar of a court that has authority over guardianship or conservatorship matters pursuant to this title to consider the continued need for an emergency temporary guardian or conservator and the appropriateness of the temporary guardian or conservator appointed, and shall order the appointed guardian or conservator to give notice to persons entitled to notice pursuant to section 14-5309, subsection A or section 14-5405, subsection A. The court shall authorize certified letters of temporary emergency guardianship or conservatorship to be issued on presentation of a copy of the court's order. If a temporary emergency conservator other than the public fiduciary is appointed pursuant to this subsection, the court shall order that the use of the monies and property of the patient by the conservator be restricted and not be sold, used, transferred or encumbered, except that the court may authorize the conservator to use monies or property of the patient specifically identified as needed to pay an expense to provide for the care, treatment or welfare of the patient pending further hearing. This subsection and subsection H of this section do not:

1. Prevent the evaluation or treatment agency from seeking guardianship and conservatorship in any other manner allowed by law at any time during the period of court-ordered evaluation and treatment.

2. Relieve the evaluation or treatment agency from its obligations concerning the suspected abuse of a vulnerable adult pursuant to title 46, chapter 4.

J. If, on finding that a patient meets the criteria for court-ordered treatment pursuant to subsection A of this section, the court also learns that the patient has a guardian appointed under title 14, the court with notice may impose on the existing guardian additional duties pursuant to section 14-5312.01. If the court imposes additional duties on an existing guardian as prescribed in this subsection, the court may determine that the patient needs to continue treatment under a court order for treatment and may issue the order or determine that the patient's needs can be adequately met by the guardian with the additional duties pursuant to section 14-5312.01 and decline to issue the court order for treatment. If at any time after the issuance of a court order for treatment the court finds that the patient's needs can be adequately met by the guardian with the additional duties pursuant to section 14-5312.01 and that a court order for treatment is no longer necessary to ensure compliance with necessary treatment, the court may terminate the court order for treatment.

K. The court shall file a report as part of the court record on its findings of alternatives for treatment.

L. Treatment shall not include psychosurgery, lobotomy or any other brain surgery without specific informed consent of the patient or the patient's legal guardian and an order of the superior court in the county in which the treatment is proposed, approving with specificity the use of the treatment.

M. The medical director or any person, agency or organization used by the medical director to supervise the terms of an outpatient treatment plan is not civilly liable for any acts committed by a patient while on outpatient treatment if the medical director, person, agency or organization has in good faith followed the requirements of this section.

N. A peace officer who in good faith apprehends and transports a patient to an inpatient treatment facility on the order of the medical director of the outpatient treatment facility pursuant to subsection E, paragraph 6 of this section is not subject to civil liability.

O. If a person has been found, as a result of a mental disorder, to constitute a danger to self or others or to have a persistent or acute disability or a grave disability and the court enters an order for treatment pursuant to subsection A of this section, the court shall transmit the person's name, sex, date of birth, social security number, if available, and date of the order for treatment to the supreme court. The supreme court shall transmit the information to the department of public safety to comply with the requirements of title 13, chapter 31 and title 32, chapter 26. The department of public safety shall transmit the information to the national instant criminal background check system. The superior court may access the information of a person who is ordered into treatment to enforce or facilitate a treatment order.

P. On request, the clerk of the court shall provide certified copies of the commitment order to a law enforcement or prosecuting agency that is investigating or prosecuting a prohibited possessor as defined in section 13-3101.

Q. If the court does not find a person to be in need of treatment and a prosecutor filed a petition pursuant to section 13-4517, the evaluation agency, within twenty-four hours, shall notify the prosecuting agency of its finding. The court shall order the medical director to detain the person for an additional twenty-four hours to allow the prosecuting agency to be notified. If the court has retained jurisdiction pursuant to section 13-4517, subsection C, the court may remand the person to the custody of the sheriff for further disposition pursuant to section 13-4517, subsection A, paragraph 2 or 3.

R. After an order for treatment has been issued pursuant to this section, the superior court in a county where a patient under a court order for treatment is found or resides has concurrent jurisdiction with the court in the county that issued the court order for treatment for the purposes of enforcing the court order for treatment, ordering changes to the treatment plan or amending the order to require the patient to undergo further inpatient treatment. If the court in which proceedings are commenced to enforce or administer the order for treatment is not the court that originally entered the order for treatment, unless prevented by an emergency, the court in which the proceedings are pending shall consult with the court of original entry and determine whether to hold hearings and enter orders to facilitate enforcement or administration of the court order, whether to refer the case back to the court of original entry for further proceedings or whether to transfer the entire case to the court of original entry in that county for all further proceedings. The supreme court may adopt rules to govern the procedures to be used in enforcing and administering court orders for treatment in the various counties of this state and the transfer of cases between counties involving court orders for treatment.

S. Pursuant to the authority granted in subsection R of this section, for the purpose of enforcing or facilitating treatment of a patient under an active order for treatment, the supreme court shall adopt a rule to establish a program to enable the judges of the superior court, county attorneys, patients' attorneys, health care institutions as defined in section 36-401 that provide services subject to the emergency medical treatment and labor act (P.L. 99-272; 100 Stat. 164; 42 United States Code section 1395dd), the regional behavioral health authority and behavioral health service providers in any county to determine the existence of an active court order for treatment and the history of court orders for treatment entered for a patient by a superior court in any county in this state. The program shall ensure that the information shared with other persons or entities is necessary only for the purposes stated in this subsection and shall require that the information shared be maintained as confidential by the receiving person or entity.

§ 36-540.01 Conditional outpatient treatment

A. The medical director may issue an order for conditional outpatient treatment for a patient ordered to undergo treatment pursuant to section 36-540 if, after consultation with staff familiar with the patient's case history, the medical director determines with a reasonable degree of medical probability that all of the following apply:

1. The patient no longer requires continuous inpatient hospitalization.

2. The patient will be more appropriately treated in an outpatient treatment program.

3. The patient will follow a prescribed outpatient treatment plan.

4. The patient will not likely become dangerous, suffer more serious physical harm or serious illness or further deteriorate if the patient follows a prescribed outpatient treatment plan.

B. The order for conditional outpatient treatment issued by the medical director shall include a written outpatient treatment plan prepared by staff familiar with the patient's case history and approved by the medical director. If a petition has been filed pursuant to section 13-4517 the prosecuting agency may provide the court with information that is contained in the patient's criminal history and that may be relevant to protecting the well-being of the patient and the public. The plan shall include all of the following:

1. A statement of the patient's requirements, if any, for supervision, medication and assistance in obtaining basic needs such as employment, food, clothing or shelter.

2. The address of the residence where the patient is to live and the name of the person in charge of the residence, if any.

3. The name and address of any person, agency or organization assigned to supervise an outpatient treatment plan or care for the patient, and the extent of authority of the person, agency or organization in carrying out the terms of the plan.

4. The conditions for continued outpatient treatment, which may require periodic reporting, continuation of medication and submission to testing, and may restrict travel, consumption of spirituous liquor and drugs, associations with others and incurrence of debts and obligations or such other reasonable conditions as the medical director may specify.

5. Any other provisions that the medical director or the court believes are necessary to protect the well-being of the patient and the public.

C. The court may order that the medical director provide notice to the court of specific instances of noncompliance as specified by the court.

D. Before release for conditional outpatient treatment, the patient shall be provided with copies and full explanations of the medical director's order and the treatment plan. If, after full explanation, the patient objects to the plan or any part of it, the objection and reasons for the objection shall be noted in the patient's record. The medical director's order and treatment plan shall be filed in the patient's medical file and shall also be filed with the court.

E. The period for which conditional outpatient treatment may be ordered may not exceed the remainder of the period of court-ordered treatment.

F. Before the release of a patient for outpatient treatment, the medical director shall give notice pursuant to section 36-541.01, subsection C and a motion for a determination by the court as to whether the standard for conditional release of the patient has been met may be made by the persons and in the manner provided for in section 36-541.01, subsection I. Before the release of a person found to be a danger to self or others or found to have a persistent or acute disability or a grave disability for outpatient treatment, the medical director shall give notice to the court that ordered the patient to undergo treatment. If criminal charges against a patient involving death or serious physical injury or a violation of title 13, chapter 14 are dismissed pursuant to section 13-4517, the medical director shall notify the prosecuting agency if a civil commitment order issued pursuant to this chapter expires or is terminated, or if the patient is discharged to outpatient treatment. The medical director shall provide this notice by mail at least five days before the anticipated date of the expiration, termination or discharge.

G. The medical director shall require periodic reports concerning the condition of patients on conditional outpatient treatment from any person, agency or organization assigned to supervise an outpatient treatment plan. The medical director shall require these reports at intervals not to exceed thirty days.

H. The medical director shall review the condition of a patient on conditional outpatient treatment at least once every thirty days and enter the findings in writing in the patient's file. In conducting the review, the medical director shall consider all reports and information received and may require the patient to report for further evaluation.

I. The medical director may amend any part of the outpatient treatment plan during the course of conditional outpatient treatment. If the plan is amended, the medical director shall issue a new order including the amended outpatient treatment plan. The new order and amended outpatient treatment plan shall be filed in the patient's medical file. Copies of the new order and outpatient treatment plan shall be immediately provided to the patient and to any person, agency or organization assigned to supervise an outpatient treatment plan. Copies of the new order and outpatient treatment plan shall be immediately filed with the court and, if a prosecutor filed a petition pursuant to section 13-4517, with the prosecuting agency.

J. The medical director may rescind an order for conditional outpatient treatment and order the patient to return to a mental health treatment agency at any time during the period of court ordered treatment if, in the medical director's judgment, the patient has failed to comply with a term of the outpatient treatment plan or if, for any reason, the medical director determines that the patient needs inpatient treatment or that conditional outpatient treatment is no longer appropriate. The medical director shall give notice to the court that issued the treatment order and the prosecuting agency if a prosecutor filed a petition pursuant to section 13-4517.

K. If the medical director rescinds an order for conditional outpatient treatment and the patient is returned to a mental health treatment agency for inpatient treatment, the patient shall be informed of the patient's right to judicial review and right to consult with counsel pursuant to section 36-546.

L. If the medical director rescinds an order for conditional outpatient treatment and orders the patient to return to a mental health treatment agency, the medical director may request, or a court may order, a peace officer or a designated officer or employee of the treatment agency to take the patient into custody for immediate delivery to the agency pursuant to section 36-544.

M. The medical director is not civilly liable for any act committed by a patient while on conditional outpatient treatment if the medical director has in good faith followed the requirements of this section.

N. This section does not prevent the medical director from authorizing a patient ordered to undergo treatment pursuant to section 36-540 as a danger to self or a danger to others or a patient with a persistent or acute disability or a grave disability to leave the treatment agency for periods of no more than five days under the care, custody and control of a spouse, relative or other responsible person if the medical director determines that the patient will not become dangerous or suffer serious physical harm or illness during that time.

O. The medical director may authorize a patient who is civilly committed pursuant to section 36-540 to leave the state hospital grounds unaccompanied if the leave is part of an inpatient individualized treatment and discharge plan and the medical director determines that the patient will not become dangerous or suffer serious physical harm or illness during that time.

§ 36-540.02 Transfer of a person with a grave disability without a guardian from a mental health treatment agency to another health care facility

A. A person who does not have a guardian under section 14-5312.01 and who has been found by the court to have a grave disability and ordered to undergo treatment pursuant to this article may receive care in another health care institution licensed by the department during the course of the person's court-ordered treatment in accordance with administration rules.

B. The director shall adopt rules pertaining to persons described in subsection A of this section to provide for their alternative care in another health care institution licensed by the department during the course of court-ordered treatment. The rules shall allow transfer of patients from a mental health treatment agency to another health care institution, transfer from one such institution to another and return to a mental health treatment agency.

§ 36-541 Mandatory local treatment; placement at state hospital

A. A patient who is ordered by a court to undergo treatment and who is not hospitalized in the state hospital at the time of the order shall undergo treatment for at least twenty-five days in a local mental health treatment agency that is geographically convenient for the patient before being hospitalized in the state hospital. This section does not apply if the court finds, at a hearing on court-ordered treatment, that the patient's present condition and history demonstrate that the patient will not benefit from the required period of treatment in a local mental health treatment agency or that the state hospital provides a program that is specific to the needs of the patient and is unavailable in the local mental health treatment agency, or when there is no local mental health treatment agency readily available to the patient. Such a finding shall be based at least on the annual written description by the state hospital of programs and services available and appropriate written reports from the medical director of the local mental health treatment agency. The patient may be immediately hospitalized at the state hospital whenever the court determines that this section does not apply.

B. A patient who is ordered by a court to undergo treatment may be admitted for treatment if the patient is accepted by the superintendent of the state hospital for treatment at the state hospital or if the court orders placement at the state hospital pursuant to subsection A or C of this section.

C. During any period of court-ordered treatment, the medical director of the local mental health treatment agency assigned to supervise and administer the patient's treatment program may file a motion requesting the court to amend the treatment order to place the patient for treatment at the state hospital. After a hearing, if the court finds that the patient's present condition and history demonstrate that the patient will not benefit from a continued period of treatment in or by a local mental health treatment agency, either as an inpatient or an outpatient, or that the state hospital provides a program that is specific to the needs of the patient and is unavailable in a local mental health treatment agency, and that the least restrictive placement to meet the needs of the patient for the foreseeable future is placement in the state hospital and there is a legally available funded bed in the state hospital, the court may amend the original treatment order authorizing the placement of the patient at the state hospital pursuant to section 36-540, subsection A, paragraph 2 or 3. Within five days after receiving notice from the court, the superintendent shall notify the court whether a bed is available in the state hospital.

D. In computing the number of inpatient treatment days available to a patient under section 36-540, subsection F, any time the patient spent in a jail or prison shall be excluded.

§ 36-541.01 Release or discharge from treatment before expiration of period ordered by court; notification of intent to release or discharge; hearing; immunity

A. A patient who is found to have a grave disability or a persistent or acute disability and who is ordered to undergo treatment pursuant to this article may be released from inpatient treatment when, in the opinion of the medical director of the mental health treatment agency, the level of care offered by the agency is no longer required. The patient may agree to continue treatment voluntarily. If the patient is to be released, the medical director shall arrange for an appropriate alternative placement. If the patient who is to be released from inpatient treatment is under a guardianship, the medical director of the mental health treatment agency shall notify the guardian and any relevant regional behavioral health authority ten days before the intended release date that the patient no longer requires the level of care that is offered by the agency. The guardian and, if relevant, the regional behavioral health authority shall arrange alternative placement with the advice and recommendations of the medical director of the mental health treatment agency.

B. A patient who is ordered to undergo treatment pursuant to this article may be released from treatment before the expiration of the period ordered by the court if, in the opinion of the medical director of the mental health treatment agency, the patient no longer is, as a result of a mental disorder, a danger to others or a danger to self or no longer has a persistent or acute disability or a grave disability. A person who is ordered to undergo treatment as a danger to others or who has had a petition filed by a prosecutor pursuant to section 13-4517 may not be released or discharged from treatment before the expiration of the period for treatment ordered by the court unless the medical director first gives notice of intention to do so as provided by this section.

C. Before the release or discharge of a patient who is ordered to undergo treatment, the medical director of the mental health treatment agency shall notify the following of the medical director's intention to release or discharge the patient:

1. The presiding judge of the court that entered the order for treatment.

2. Any relative or victim of the patient who has filed a demand for notice with the treatment agency.

3. Any person found by the court to have a legitimate reason for receiving notice.

D. If the patient is undergoing court-ordered treatment as the result of a petition filed by a prosecuting agency pursuant to section 13-4517, the medical director of the mental health treatment agency shall notify the court and the prosecuting agency if a civil commitment order issued pursuant to this chapter expires or is terminated, or if the patient is discharged to outpatient treatment. The medical director shall provide this notice by mail at least five days before the anticipated date of the expiration, termination or discharge. This subsection does not apply to amended orders that are a result of the patient's need for acute or emergency care during the period of court-ordered treatment.

E. If the medical director of the mental health treatment agency is unable to determine, based on the information submitted pursuant to subsection F of this section, that a person who has filed a demand for notice is a victim, the medical director shall inform that person that that person's demand for notice is denied and that notice will not be given unless ordered by the court pursuant to subsection G of this section.

F. A demand for notice by a relative or victim, and a petition for notice by other persons, shall be on a form prescribed by the administration and shall include the following information:

1. The full name of the person to receive notice.

2. The address to which notice is to be mailed.

3. The telephone number of the person to receive notice.

4. The relationship to the patient, if any, or the reasons why the person believes the person has a legitimate reason to receive notice.

5. A statement that the person will advise the treatment agency in writing by certified mail, return receipt requested, of any change in the address to which notice is to be mailed.

6. The full name of the patient who is ordered to undergo treatment as a danger to others or who has had a petition filed by a prosecutor pursuant to section 13-4517.

7. The mental health number assigned to the case by the superior court.

G. If the court receives a demand for notice by a relative or victim, the court shall order the medical director of the mental health treatment agency not to release or discharge the patient before the expiration of the period of court-ordered treatment without first giving notice to the relative or victim as provided in subsection H of this section. After considering a petition for notice, if the court finds that the petitioner has a legitimate reason for receiving prior notice, the court may order the medical director of the mental health treatment agency not to release or discharge the patient from inpatient treatment before the expiration of the period of court-ordered treatment without first giving notice to the petitioner as provided in subsection H of this section. Any order for notice shall be delivered to the mental health treatment agency and shall be filed with the patient's clinical record. If the patient is transferred to another agency or institution, any orders for notice shall be transferred with the patient.

H. A notice of intention to release or discharge shall include the following information:

1. The name of the patient to be released or discharged.

2. The type of release or discharge.

3. The date of anticipated release or discharge. Notices shall be placed in the mail, postage prepaid and addressed to the court and to each person for whom notice has been ordered, at least ten days before the date of intended release or discharge, except that notice shall be sent to the prosecuting agency at least five days before the date of intended release or discharge. For purposes of computing the notice requirement, the day of mailing shall not be counted.

I. Any person for whom prior notice is required pursuant to this section, or the court, may make a motion within the notification period that requires the court to determine whether the standard for release of the patient before the expiration of the period for court-ordered treatment has been met. A determination that the standard for release has been met may be made by the court based on a review of the record and any affidavits submitted without further hearing. For good cause, the court may order an evidentiary hearing. Whether or not a hearing is held, the court shall make a determination at the earliest possible time but no longer than three weeks after the anticipated date of release pursuant to subsection H of this section, and the patient shall be retained for the additional time required for the court's determination. In making its determination the court may order an independent examination of the patient. If a motion is not made, the patient may be released in accordance with the terms set forth in the notice without further court order. If a hearing is held pursuant to this subsection, the court shall order the medical director of the mental health treatment agency to provide the patient's records, including medical and treatment records, to the court and the prosecuting agency.

J. If a motion has not been made pursuant to subsection I of this section, the patient may be released or discharged and the medical director of the mental health treatment agency shall send to the court a certificate that the patient is no longer a danger to others or a danger to self or no longer has a persistent or acute disability or a grave disability as the result of a mental disorder and therefore is released before the expiration of the period ordered for treatment. The court shall enter an order terminating the patient's court-ordered treatment.

K. The medical director of the mental health treatment agency shall not be held civilly liable for any acts committed by a patient who is released before the expiration of the period of court-ordered treatment if the medical director has in good faith followed the requirements of this section.

§ 36-542 Discharge of patient at expiration of period ordered by court; change to voluntary status; immunity

A. A patient ordered by a court to undergo treatment pursuant to this article shall be discharged from treatment at the expiration of the period of treatment ordered unless one of the following occurs:

1. The person accepts voluntary treatment at the mental health treatment agency.

2. Before the discharge date, a new petition is filed in the county in which the patient is being treated. The proceedings shall then be governed by this article. The costs of the proceedings shall be a charge against the county in which the patient resided or was found prior to hospitalization.

3. An application for continued court-ordered treatment is granted pursuant to section 36-543.

B. If a patient to be discharged is under guardianship, the medical director of the mental health treatment agency shall notify the guardian ten days before discharge.

C. If a patient to be discharged is undergoing court-ordered treatment as a result of a petition filed by a prosecutor pursuant to section 13-4517 and the patient is being discharged because the medical director has decided not to file a new petition for court-ordered evaluation or treatment or has decided not to request the court to order that the previous order for treatment be continued, the patient may not be discharged or released from treatment before compliance with section 36-541.01.

D. The medical director is not civilly liable for any acts committed by a released or discharged patient if the medical director has in good faith followed the requirements of this article.

§ 36-543 Annual review of a patient with a grave disability or a persistent or acute disability; notice; court order for continued treatment; rules; immunity

A. Within ninety days before the expiration of a court order for treatment, the medical director of the mental health treatment agency shall conduct an annual review of a patient who has been found to have a grave disability or a persistent or acute disability and who is undergoing court-ordered treatment to determine whether the continuation of court-ordered treatment is appropriate and to assess the needs of the patient for guardianship or conservatorship, or both. The annual review shall consist of the mental health treatment and clinical records contained in the patient's treatment file. The mental health treatment agency shall keep a record of the annual review. If the medical director believes that a continuation of court-ordered treatment is appropriate, the medical director of the mental health treatment agency shall appoint one or more psychiatrists to carry out a psychiatric examination of the patient. In any proceeding conducted pursuant to this section, a patient has the right to have an analysis of the patient's mental condition by an independent evaluation pursuant to section 36-538.

B. Each examiner participating in the psychiatric examination of the patient shall submit a report to the medical director of the mental health treatment agency that includes the following:

1. The examiner's opinions as to whether the patient continues to have a grave disability or a persistent or acute disability as the result of a mental disorder and be in need of continued court-ordered treatment. In evaluating the patient's need for continued court-ordered treatment, the examiner must consider, along with all other evidence, the patient's history before and during the current period of court-ordered treatment, the patient's compliance with recommended treatment and any other evidence relevant to the patient's ability and willingness to follow recommended treatment with or without a court order.

2. A statement as to whether suitable alternatives to court-ordered treatment are available.

3. A statement as to whether voluntary treatment would be appropriate.

4. A review of the patient's status as to guardianship or conservatorship, or both, the adequacy of existing protections of the patient and the continued need for guardianship or conservatorship, or both. If the examiner concludes that the patient's needs in these areas are not being adequately met, the examiner's report shall recommend that the court order an investigation into the patient's needs.

5. If the patient has an existing guardian who does not have the mental health powers authorized pursuant to section 14-5312.01, a recommendation as to whether the additional mental health powers authorized by section 14-5312.01 should be imposed on the existing guardian and whether the patient's needs can be adequately addressed by a guardian with mental health powers without the need for a court order for treatment or whether the court order for treatment should continue regardless of the additional mental health powers imposed on the guardian.

6. The results of any physical examination conducted during the period of court-ordered treatment if relevant to the psychiatric condition of the patient.

C. After conducting the annual review as prescribed in this section, if the medical director believes that continued court-ordered treatment is necessary or appropriate, not later than thirty days before the expiration of the court order for treatment, the medical director shall file with the court an application for continued court-ordered treatment alleging the basis for the application and shall file simultaneously with the application any psychiatric examination conducted as part of the annual review. If the patient is under guardianship, the medical director shall mail a copy of the application to the patient's guardian.

D. If an application for continued court-ordered treatment is filed, all of the following apply:

1. If the patient does not have an attorney, the court shall appoint an attorney to represent the patient.

2. Within ten days after appointment, an attorney appointed pursuant to this subsection, to the extent possible, shall fulfill the duties imposed pursuant to section 36-537, review the medical director's report and the patient's medical records, interview any physician who prepared a report on the annual review and file a response requesting a hearing or submitting the matter to the court for a ruling based on the record without a hearing.

3. If a hearing is not requested, the court shall rule on the application or set the matter for hearing. If a hearing is requested, the hearing shall be held within three weeks after the request for hearing is filed. The hearing may be continued for good cause on motion of a party or on the court's own motion, and the expiration of the current court order for treatment may be extended until a ruling by the court on an application filed pursuant to this subsection.

4. The patient's attorney must be present at all hearings and may subpoena and cross-examine witnesses and present evidence. The patient has the right to attend all hearings, but may choose not to attend a hearing. The patient's attorney may waive the patient's presence after speaking with the patient and confirming that the patient understands the right to be present and does not desire to attend. If the patient is unable to be present at the hearing for medical or psychiatric reasons and the hearing cannot be conducted where the patient is being treated or confined, or the patient cannot appear by another reasonably feasible means, the court shall require clear and convincing evidence that the patient is unable to be present at the hearing and on such a finding may proceed with the hearing in the patient's absence.

5. The evidence presented by the applicant includes the testimony of one or more witnesses acquainted with the patient during the period of court-ordered treatment, which may be satisfied by a statement agreed on by the parties, and the testimony of any physician who performed an annual review of the patient, which may be satisfied by stipulating to the admission of the examining physicians' written report prepared pursuant to subsection B of this section. The court may waive the need for the applicant to present the testimony of witnesses acquainted with the patient as required by this subsection, if it finds that the need for a continued court order for treatment has been established by clear and convincing evidence from the other testimony and evidence presented at the hearing.

6. At a hearing held pursuant to this subsection, the court, with notice, may impose on an existing guardian additional powers pursuant to section 14-5312.01. If the court finds that the patient's needs can be adequately met by an existing guardian with the additional powers pursuant to section 14-5312.01 and that a court order for treatment is not necessary to ensure compliance with necessary treatment, the court may terminate the court order for treatment or decline to issue an order continuing court-ordered treatment. The court may also order an investigation into the need for guardianship or conservatorship, or both, and may appoint a suitable person or agency to conduct the investigation. The appointee may include a court-appointed guardian ad litem, a court-appointed investigator pursuant to section 14-5308 or the public fiduciary if there is no person willing and qualified to act in that capacity. The court shall give notice of the appointment to the appointee within three days after the appointment. The appointee shall submit the report of the investigation to the court within twenty-one days. The report shall include recommendations as to who should be guardian or conservator, or both, and the findings and reasons for the recommendation. If the investigation and report so indicate, the court may authorize an appropriate person to file a petition for appointment of a guardian or conservator for the patient.

E. If a hearing is held pursuant to subsection D of this section, the party seeking the renewal of the court order must prove all of the following by clear and convincing evidence:

1. The patient continues to have a mental disorder and, as a result of that disorder, has either a persistent or acute disability or a grave disability.

2. The patient is in need of continued court-ordered treatment.

3. The patient is either unwilling or unable to accept treatment voluntarily.

F. After a hearing held pursuant to subsection D of this section, the court may order the patient to be released from court-ordered treatment or to undergo continued court-ordered treatment for a period not to exceed the time periods prescribed in section 36-540, subsection D.

G. The director shall create and operate a program to ensure that the examination and review of persons with grave disabilities or persistent or acute disabilities under court order are carried out in an effective and timely manner. The director shall adopt rules needed to operate this program.

H. The medical director of the mental health treatment agency is not civilly liable for any acts committed by the released patient if the medical director has in good faith complied with the requirements of this article.

§ 36-544 Unauthorized absences; violation; classification; tolling period; hearing; civil liability; definition

A. When any patient who is being evaluated or treated is absent without proper authorization from an evaluation agency or a mental health treatment agency, or when an order for outpatient treatment is rescinded, any peace officer shall, upon oral or written request of the medical director of the agency and without the necessity of a warrant or court order, or any officer or employee of the agency who has been previously designated in writing by the medical director of the agency to perform such duties may, take into custody and deliver such patient to the agency. Such officers and employees of the agency have the powers and duties of peace officers so far as is necessary to carry out the provisions of this section. If necessary, the evaluation or treatment agency may apply to the court for a warrant or court order directing any peace officer to take a patient who is absent without proper authorization into custody and deliver the patient to the agency.

B. Any person who intentionally assists any patient being evaluated or treated in an agency to be absent from the agency without proper authorization, or who intentionally assists a patient whom he knows to be absent without proper authorization or whom he knows to be a patient whose order for outpatient treatment has been rescinded and who has been ordered to return to the agency, or to resist being returned to the agency after such absence is guilty of a class 2 misdemeanor.

C. The period of court-ordered treatment is tolled during the unauthorized absence of the patient. Within five days after a patient's unauthorized absence, the treatment agency shall file a notice with the court and provide the date that absence began and request that the treatment order be tolled. If the court tolls the period of court-ordered treatment, notice of the order must be provided to the patient by regular mail at the patient's last known address. If the patient is undergoing treatment as a result of a remand pursuant to section 13-4517, notice must also be provided to the prosecuting attorney. The treatment agency shall notify the court of the date of the patient's return. On notice of the patient's return, the court shall issue an order that provides the time period that was tolled.

D. A patient whose period of court-ordered treatment is tolled for a period of at least sixty continuous days may request a judicial review pursuant to section 36-546 on the patient's voluntary or involuntary return to treatment. During the period tolled by a court order issued pursuant to this section, the treatment agency shall use information and other resources that are available to the agency to facilitate efforts to locate and return the patient to appropriate treatment. At least once every sixty days, or as often as otherwise ordered by the court, the treatment agency shall file with the court a report that specifies the information and resources that were used by the agency to facilitate the agency's efforts. After the period of treatment is tolled for a period of one hundred eighty days, if the court is satisfied that the agency has made the efforts that are required by this subsection, on petition of the treatment agency, the court may terminate the order for treatment or may order the treatment agency to make further specific efforts to locate and return the patient to appropriate treatment. For a patient who has had a petition filed by a prosecutor pursuant to section 13-4517, the treatment agency shall provide notice to the prosecuting agency of the petition to terminate treatment.

E. The period of treatment under a court order may not be tolled for more than three hundred sixty-five days.

F. If the treatment agency has in good faith followed the requirements of this section, the treatment agency is not liable in a civil action for damages that result from the actions of a patient during any period of treatment tolled by an order issued pursuant to this section.

G. For the purposes of this section, "absent without proper authorization" or "unauthorized absence" includes being absent from an inpatient treatment facility without authorization, no longer living in a placement or residence specified by the treatment plan without authorization and leaving or failing to return to the county or state without authorization.

Article 6 Costs and Services

§ 36-545 Voluntary admissions to the state hospital; reimbursements; indigents

The director shall establish the amount which will fully reimburse the state for the expense of examining, evaluating, treating and maintaining the patient. The state hospital shall charge the patient all or such portion of the established amount as the patient can afford. If the patient is indigent, no charge shall be made. The state hospital shall require prompt payment of the charge.

§ 36-545.01 Payment of costs and expenses; ability to pay; power and duty of court; acceptance of other benefits; per capita cost limitation; guardians; parental liability; lien; duty of county attorney

A. When a patient is admitted to the state hospital for court-ordered treatment pursuant to article 5 of this chapter or pursuant to section 13-3992, the business manager of the state hospital shall inquire into the ability of the patient to pay the costs of examination, maintenance and treatment. The business manager shall file with the clerk of the court a written report of the manager's findings and the basis of those findings.

B. If the patient is able to pay all or any portion of the charges, the court shall order the payment of the amount the patient can afford of the per capita cost for examination, treatment and maintenance as estimated by the superintendent. The court, on petition of an interested person and at a hearing of which all concerned parties have received notice, may increase or decrease the maintenance charge payable by the patient or the patient's estate.

C. Notwithstanding subsection B of this section, any federal, state, public or private medical benefits that are payable to the state hospital where the patient is receiving care and treatment or that are payable to the patient may be accepted by the state hospital without a court order, except that the state hospital shall not accept any benefits that alone or in addition to any amounts payable pursuant to subsection B of this section exceed the per capita cost for the patient.

D. The court, if necessary, may appoint a conservator of the patient to carry out this section. If a conservator is appointed, the clerk of the court shall file a certificate so stating. All proceedings relating to that conservatorship shall be had as provided by law for conservators of estates. The conservator shall pay the amount ordered by the court pursuant to subsection B of this section.

E. If the patient is a minor, the business manager of the state hospital shall inquire into the ability of the minor's parents to bear charges pursuant to this section. All obligations, charges and liens that may be imposed on a patient pursuant to this section shall be imposed on the minor's parents if it is determined that the parents have the ability to pay.

F. The charges fixed by the court as provided by this section and ordered paid by the patient or the patient's estate, on filing with the county recorder, become a lien on the property of the patient or the patient's estate.

G. The county attorney of each county, on an order of a judge of the superior court, shall enforce the lien and collect the charges from the person ordered to pay if the charges become delinquent.

H. Costs of examination, treatment and maintenance shall not be charged to any patient found by a court of competent jurisdiction to be unlawfully detained.

I. Notwithstanding section 36-545.02, the department shall deposit, pursuant to sections 35-146 and 35-147, monies collected through contracts entered into pursuant to section 36-3410 in the Arizona state hospital fund established by section 36-545.08. The department shall use these monies for the treatment of patients at the state hospital or for the placement of clients in the community.

§ 36-545.02 State hospital reimbursements; disposition of funds

All monies collected pursuant to sections 36-545 and 36-545.01 for examination, evaluation, treatment and maintenance of patients shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

§ 36-545.03 Payment of costs and expenses by person hospitalized in private or voluntary nonprofit facility

All costs in connection with a patient hospitalized in a private or voluntary nonprofit facility, including costs for evaluation, shall be borne by the patient, his parents, spouse, guardian or estate and shall not be a charge against the state or county except as provided in section 36-545.05.

§ 36-545.04 Costs of court proceedings; compensation for evaluation and testimony

A. Except as provided in this chapter, costs of court proceedings and cost of services provided by a county pursuant to article 4 are a charge against the county in which the patient resided or was found before hospitalization. The clerk of the superior court in the county where the proceedings are held shall certify to the board of supervisors of the county where the patient resided or was found before hospitalization that such proceedings were held and the amount of the balance of the incurred costs.

B. If a physician, psychologist, psychiatric and mental health nurse practitioner or social worker is not otherwise compensated for evaluating a person or for testifying at a hearing, or both, the physician, psychologist, nurse practitioner or social worker shall be paid by the county, an amount determined reasonable by the court, subject to the same limitations as imposed on compensation for attorneys in hearings, as provided by section 13-4013. These payments shall be made as a part of the costs of court proceedings as in subsection A of this section.

§ 36-545.05 Treatment by agencies under administration contract; charges; voluntary evaluations; prepetition screenings; court-ordered evaluations; prohibitions

A. When a person is given a prepetition screening, or a court-ordered evaluation by a screening agency or evaluation agency pursuant to article 4 of this chapter, the person shall not be charged.

B. When a person is given a voluntary evaluation pursuant to section 36-522, the person shall pay all or such portion of the established charges as the person can afford. If the person is indigent, charges may not be made against the person.

C. When a patient is given voluntary treatment pursuant to article 3 of this chapter or court-ordered treatment pursuant to article 5 of this chapter, the patient or proposed patient shall pay all or such portion of the established charges as the patient can afford. If the patient is indigent, no charges shall be made against the patient.

§ 36-545.06 County services; county responsibility

A. Each county, or any combination of counties, shall provide directly or by contract the services of a screening agency and an evaluation agency for the purposes of this chapter.

B. On a request made by a resident of the county pursuant to this chapter, a county shall be required to provide screening or evaluation.

C. Each county shall coordinate the provision of mental health services required pursuant to this section with the administration or as delegated by the administration to a regional behavioral health authority.

D. For a person who is admitted to an evaluation agency for a court-ordered evaluation, the county's responsibility continues until the evaluation period ends, which is when one of the following occurs:

1. The petition for court-ordered treatment is filed with the court.

2. The individual agrees to voluntary treatment.

3. The individual is released from court-ordered evaluation.

§ 36-545.07 Contracts between the administration and screening agencies, evaluation agencies and mental health treatment agencies; services; plan

A. The administration may enter into contracts with screening agencies, evaluation agencies and mental health treatment agencies to provide prepetition screenings, court-ordered evaluations, voluntary evaluations, treatment of voluntary patients and treatment of patients under section 36-524 regardless of the ability of the patient or proposed patient to pay. A county may be a party to a contract as a provider of services or as a party making payments to an agency to provide services on the part of the county. The state hospital may be included in the contract as a provider of services and may receive consideration not inconsistent with law.

B. Contracts to provide services as in subsection A of this section shall be entered into in accordance with a plan of the administration. This plan shall be developed in accordance with the state comprehensive health plan and in accordance with a plan of the local health planning agency submitted to and approved by the director, except as provided in subsection C of this section.

C. If there is no recognized local health planning agency or if the local health planning agency does not submit a plan that will, in the judgment of the director, fulfill the requirements for services of subsection A of this section, the director may develop a plan and require that it be followed in lieu of a plan of the local health planning agency. The plan of the director shall be adopted after holding a hearing and fulfilling the requirements of title 41, chapter 6.

D. If monies at the disposal of the administration are used for services as in subsection A of this section, the contract shall conform to the requirements of section 36-189, subsection B.

E. A contract to provide services as in subsection A of this section shall specify the services to be provided as to their nature, quality, purpose, number, extent and limitations, if any, or any other requirements the administration deems necessary for the proper administration of services under the plan of the administration.

F. A contract may specify that the county's participation fulfills in full or in part the requirements of the county to provide services under section 36-545.06 and the requirements of the county to pay the cost of services under section 36-545.04.

§ 36-545.08 Arizona state hospital fund; purpose

A. The Arizona state hospital fund is established for the purposes prescribed in section 36-545.01, subsection I. The department of health services shall administer the fund. The fund consists of the following:

1. Monies reimbursed by the federal government under title XIX of the social security act for services provided at the state hospital.

2. Monies collected pursuant to section 36-3410 for services to clients at the state hospital.

3. Monies collected from counties for the cost of a defendant's inpatient competency restoration treatment.

B. The department shall deposit monies collected pursuant to subsection A of this section into three separate accounts.

C. Monies in the fund deposited under subsection A, paragraphs 1 and 3 of this section are subject to legislative appropriation and are designated for state hospital operations. Monies in the fund deposited under subsection A, paragraph 2 of this section are a continuing appropriation and are exempt from the provisions of section 35-190 relating to lapsing of appropriations. Monies in the fund deposited under subsection A, paragraph 3 of this section remaining unexpended and unencumbered at the end of the fiscal year revert to the state general fund. Monies in the fund deposited under subsection A, paragraph 1 of this section are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-545.09 Building renewal fund; purpose

Subject to legislative approval a building renewal fund is established for the purpose of major maintenance of the state owned properties located at 1930 east 6th street and 2075 north 6th avenue, Tucson, Arizona. The building renewal fund shall be subject to legislative appropriation. The fund shall consist of monies collected from the lease of these properties. The department of health services shall administer the fund. Fund monies are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

Article 7 Judicial Review

§ 36-546 Judicial review; right to be informed; request; jurisdiction

A. In addition to the procedure for applying for a writ of habeas corpus, as provided in title 13, chapter 38, article 26, a patient receiving court-ordered treatment or any person acting on the patient's behalf may request the patient's release pursuant to the following:

1. A request in writing may be presented to any member of the treatment staff of the agency providing the patient's treatment. The request may be made on a prescribed form that shall be prepared by the facility and made available for use by any person. The completed form shall identify:

(a) The patient being treated and the agency at which the patient is being treated.

(b) The person to whom the request for release was made.

(c) The person making the request for release, indicating whether the person is the patient being treated or someone acting on the person's behalf.

2. The request, when signed and dated by the person making the request for release, shall be delivered to the medical director of the agency. Within three days of receipt of the request, the medical director shall deliver the form, along with a current psychiatric report of the patient's condition, to the clerk of the court. If the person presenting the request refuses to sign the form, the medical director of the agency shall proceed as if the form had been signed and shall note on the form the circumstances as to why the form was not signed.

B. The patient shall be informed of the patient's right to judicial review by the medical director of the agency and the patient's right to consult with counsel at least once each sixty days while the patient is undergoing court-ordered treatment. The notification required by this subsection shall be recorded in the clinical record of the patient by the individual who gave the notice.

C. With the exception of requests made pursuant to section 36-540, subsection E, paragraphs 5 and 6 and section 36-540.01, subsection K for judicial review, a request for judicial review may not be made sooner than sixty days after the issuance of the order for treatment or a hearing on a previous petition for habeas corpus or the issuance of the court order or other final resolution determining a previous request for judicial review by the patient.

D. Judicial review shall be in the superior court in the county in which the patient is being treated. That court may review the additional material presented and enter its order without necessity of further hearing.

E. The reviewing court may order a further hearing on the affidavit of the attorney for the patient setting forth the need for further evidentiary hearing and the reasons why the hearing is necessary before the time set for the release of the patient.

F. The patient shall be informed of the patient's right to consult an attorney by the person or court to whom the patient makes the request for release at the time the patient makes the request and, in the case of confinement in an agency, by the reviewing court within one day of its receipt of notice from the medical director of the agency where the patient is being treated. The patient shall be permitted to consult an attorney to assist in preparation of a petition for the writ of habeas corpus and to represent the patient in the hearing. If the patient is not represented by an attorney, the reviewing court, within two days of its notice to the patient of the patient's right to counsel, shall appoint an attorney to assist the patient in the preparation of a petition and to represent the patient in the hearing.

G. The medical director of the mental health treatment agency, at least twenty-four hours before the hearing, shall provide the patient's attorney with a copy of the patient's medical records.

H. The patient's attorney shall fulfill all of the following minimal duties:

1. Within twenty-four hours of appointment, conduct an interview with the patient.

2. At least twenty-four hours before the hearing, interview the patient's treatment physician or psychiatric and mental health nurse practitioner if available.

3. Before the hearing, examine the clinical record of the patient.

4. Before the hearing, examine the patient's court records as to the patient's involuntary treatment.

I. An attorney who does not fulfill the duties prescribed by subsection H of this section is subject to contempt of court.

§ 36-546.01 Expedited appeal to the court of appeals

An order for court ordered treatment may be reviewed by appeal to the court of appeals as prescribed in the Arizona rules of civil procedure or by special action. Such appeal or special action shall be entitled to preference.

Article 9 Hospitalization in a Federal Facility

§ 36-548 Court-ordered treatment by the United States department of veterans affairs or other agency of the United States

A. Whenever, in any proceeding under the laws of this state for the court-ordered treatment of a person alleged to be, as a result of a mental disorder, a danger to self or to others, with a persistent or acute disability or a grave disability, it is determined after such adjudication of the status of such person as may be required by law that hospitalization in a mental health treatment agency is necessary for treatment, and it appears that the person is eligible for care or treatment by the United States department of veterans affairs or other agency of the United States, the court, on receipt of a certificate from the United States department of veterans affairs or other agency showing that facilities are available and that the person is eligible for care or treatment, may order the person to undergo treatment by the United States department of veterans affairs or other agency of the United States. A person hospitalized in a United States department of veterans affairs facility or institution operated by another agency of the United States in accordance with the court's order for treatment shall be subject to the rules and regulations of the United States department of veterans affairs or other agency whether the facility is located within or without the state. The chief officer of the United States department of veterans affairs facility or other institution by another agency of the United States in which the person is hospitalized shall with respect to the person be vested with the same powers as the medical director of a mental health treatment agency with respect to the continuation of hospitalization or release. Jurisdiction is retained by the court that ordered the treatment of the patient or other superior court of the state at any time to inquire into the mental condition of the person and to determine the necessity for continuance of the person's hospitalization.

B. The judgment or order of commitment by a court of competent jurisdiction of another state or of the District of Columbia committing a person to the United States department of veterans affairs or other agency of the United States for care or treatment shall have the same force and effect as to the committed person while in this state as in the jurisdiction where the court that entered the judgment or made the order is located, and the courts of the committing state or of the District of Columbia shall be deemed to have retained jurisdiction of the person so committed for the purpose of inquiring into the mental condition of the person, and of determining the necessity for continuance of the person's hospitalization as provided by subsection A of this section with respect to persons ordered to undergo treatment by the courts of this state. Consent is given to the application of the law of the committing state or District of Columbia with respect to the authority of the chief officer of any facility of the United States department of veterans affairs or any institution operated in this state by any other agency of the United States to retain custody of or transfer, parole, or discharge the committed person.

C. On receipt of a certificate of the United States department of veterans affairs or other agency of the United States that facilities are available for the care or treatment of any person ordered to undergo treatment in a mental health treatment agency and that the person is eligible for care or treatment, the medical director of the mental health treatment agency may cause the transfer of the person to a United States department of veterans affairs facility or institution operated by another agency of the United States for care or treatment. On effecting any such transfer, the superior court that ordered treatment for the patient shall be notified by the transferring agency. A person shall not be transferred to a United States department of veterans affairs facility or institution operated by another agency of the United States if the person is confined pursuant to an order of a superior court under rules of criminal procedure, unless before that transfer the superior court enters an order for the transfer.

D. A person transferred as provided in this section is deemed to have been ordered to undergo treatment by the United States department of veterans affairs or other agency of the United States pursuant to the original court order for treatment. A person ordered to undergo treatment by the United States department of veterans affairs or transferred to the United States department of veterans affairs as provided in this section shall not be removed from the state for evaluation or treatment without specific informed consent of the patient or the person's legal guardian.

Article 10 Community Mental Health Residential Treatment System

§ 36-550 Definitions

In this article, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Community residential treatment system" means a statewide system of community-based residential treatment programs for the seriously mentally ill that provides a wide range of services as alternatives to institutionalization and in the least restrictive setting.

3. "Director" means the director of the administration.

4. "Seriously mentally ill" means persons who as a result of a mental disorder as defined in section 36-501 exhibit emotional or behavioral functioning that is so impaired as to interfere substantially with their capacity to remain in the community without supportive treatment or services of a long-term or indefinite duration. In these persons mental disability is severe and persistent, resulting in a long-term limitation of their functional capacities for primary activities of daily living such as interpersonal relationships, homemaking, self-care, employment and recreation.

§ 36-550.01 Statewide plan for community residential treatment

A. The director shall establish a statewide plan for a community residential treatment system. The plan shall provide for a statewide system of mental health residential treatment programs that provides to the seriously mentally ill a wide range of programs and services, as identified in section 36-550.05, as alternatives to institutional care.

B. The statewide plan shall include the following elements:

1. A description on a county-by-county basis of the current programs and service delivery mechanisms providing services to the seriously mentally ill.

2. An identification of areas within the state where multiple jurisdictions could participate in program delivery utilizing intergovernmental contracts.

3. Goals, objectives and priorities for the delivery of such services and methods to evaluate program effectiveness of goals, objectives and priorities.

4. Cooperation with the counties to develop and maintain a coordinated system for delivery of residential care.

5. Methods for estimating the need for community residential treatment services and for allocating state monies according to that need.

C. The director may establish rules as are necessary for the implementation of this article.

§ 36-550.02 County responsibilities in statewide planning process

A. Each county shall be responsible for developing an individual county profile of existing programs, needs and goals for consideration by the director for inclusion within the statewide plan as required in section 36-550.01.

B. The director, on receipt of the county profile required in subsection A of this section, shall incorporate those portions compatible with the statewide plan, and, in cooperation with the county, modify those portions of the profile determined by the director to be incompatible with the statewide plan.

§ 36-550.03 Statewide plan implementation; contract requirements; exception

A. On establishment of the statewide plan for a community residential treatment system as required in section 36-550.01, the director shall provide for the delivery of such programs and services, utilizing all monies identified and available for the seriously mentally ill, in the following manner:

1. Provide such programs and services directly through the administration or by contract with other public or private agencies.

2. Contract with individual counties to provide programs and services directly or by contract with other public or private agencies.

3. Provide for programs and services by any combination of service delivery mechanisms as prescribed in paragraphs 1 and 2 of this subsection.

B. The director may use any monies available to the administration for the purposes of this article to provide for the establishment and maintenance of community residential treatment programs and services. If the director contracts with a county as prescribed in subsection A of this section, the director may require not more than a twenty-five percent match of local or other monies. The matching requirement for local or other monies may be provided by either direct funding or by in-kind services.

C. If the programs and services prescribed in subsection A of this section are provided through a contract with a private agency, the director shall not require matching monies as a condition for a contract to provide services.

§ 36-550.04 Evaluation system; contract requirements

A. The director shall develop and implement an evaluation system that includes program planning and development, fiscal and data management and contract administration.

B. A county that desires to contract with the administration to deliver programs and services as provided by this article may initiate such a contract on a majority vote of the county's board of supervisors. The contract may be implemented directly by the county or indirectly by contract with other public or private nonprofit agencies.

C. Any county contracting with the administration shall meet the evaluation requirements established by the director pursuant to subsection A of this section.

§ 36-550.05 Community mental health residential treatment services and facilities; prevention services; placement of foster children

A. A residential or day treatment facility shall be designed to provide a homelike environment without sacrificing safety or care. Facilities shall be relatively small, with preferably fifteen or fewer beds.

B. Individual programs of a community residential treatment system shall include the following:

1. A short-term crisis residential treatment program. This program is an alternative to hospitalization for persons in an acute episode or situational crisis requiring temporary removal from the home from one to fourteen days. The program shall provide admission capability twenty-four hours a day, seven days a week in the least restrictive setting possible to reduce the crisis and stabilize the client. Services shall include direct work with the client's family, linkage with prevocational and vocational programs, assistance in applying for income, medical and other benefits and treatment referral.

2. A residential treatment program. This program shall provide a full-day treatment program for persons who may require intensive support for a maximum of two years. The program shall provide rehabilitation for chronic clients who need long-term support to develop independence and for clients who live marginally in the community with little or no support and periodically need rehospitalization. Services shall include intensive diagnostic evaluation, a full-day treatment program with prevocational, vocational and special education services, outreach to social services and counseling to assist the client in developing skills to move toward a less structured setting.

3. A secure behavioral health residential facility program. This program shall provide secure twenty-four-hour on-site supportive treatment and supervision by staff with behavioral health training only to persons who have been determined to be seriously mentally ill and chronically resistant to treatment pursuant to a court order issued pursuant to section 36-550.09.

4. A semisupervised, structured group living program. This program is a cooperative arrangement in which three to five persons live together in apartments or houses as a transition to independent living. The program shall provide an increase in the level of the client's responsibility for the functioning of the household and an increase in the client's involvement in daytime activities outside the house or apartment that are relevant to achieving personal goals and greater self-sufficiency. Services provided by the program shall include counseling and client self-assessment, the development of support systems in the community, a day program to encourage participation in the larger community, activities to encourage socialization and use of general community resources, rent subsidy and direct linkages to staff support in emergencies.

5. A socialization or day care/partial care program. This program shall provide regular daytime, evening and weekend activities for persons who require long-term structured support but who do not receive such services in their residential setting. The program shall provide support for persons who only need regular socialization opportunities and referral to social services or treatment services. The program shall provide opportunities to develop skills to achieve more independent functioning and means to reduce social isolation. Services shall include outings, recreational activities, cultural events and contact with community resources, such as prevocational counseling and life skills training.

C. Individual and family support prevention services shall provide assistance to the seriously mentally ill residing in their own home. Such prevention services shall include transportation, recreation, socialization, counseling, respite, companion services and in-home training.

D. Each individual program shall use appropriate multidisciplinary staff to meet the diagnostic and treatment needs of the seriously mentally ill and shall encourage use of paraprofessionals.

E. Each program shall have an evaluation method to assess the effectiveness of the programs and shall include the following criteria:

1. Prevalence and incidence of the target behavioral problem.

2. Cost effectiveness.

3. Potential for implementing the program using available monies and resources through cost-sharing.

4. Measurability of the benefits.

5. Effectiveness of intervention strategy.

6. Availability of resources and personnel.

F. Each community residential treatment system shall be designed to provide:

1. Coordination between each program and other treatment systems in the community.

2. A case management system to enhance cooperation of elements within the system and provide each client with appropriate services.

3. Client movement to the most appropriate and least restrictive service.

4. Direct referral of clients for specific programs that does not require the client to pass through the entire system to reach the most appropriate service.

G. If a foster child who is in the care, custody and control of the department of child safety is approved for placement in a behavioral health facility prescribed by this section, the behavioral health facility may not deny or refuse placement of the foster child if the foster child's behavioral health needs are within the behavioral health facility's scope of services, subject to the availability of a bed or space in the behavioral health facility.

§ 36-550.06 Client eligibility

A. The seriously mentally ill are eligible for services under this article if they comply with the eligibility screening and application process prescribed in section 36-3408, and under any of the following circumstances:

1. They voluntarily seek the services.

2. The regional behavioral health authority receives a request for these services from a guardian who is authorized to consent to inpatient treatment pursuant to section 14-5312.01.

3. A court orders that they receive the services.

4. The chief medical officer of the Arizona state hospital recommends they receive such services.

B. Programs and services identified in section 36-550.05 may include purchase of care support payments to persons to supplement social security, supplemental security income or United States department of veterans affairs disability payments, and client fees when available.

§ 36-550.07 Community residential treatment system planning grants

A. The director may award grants to counties to facilitate the planning of community residential treatment systems for the seriously mentally ill at the local level. The grants shall be used to compensate personnel for the preparation of a written plan that includes the following information:

1. An estimate of the need for residential treatment services in the area.

2. A survey of all existing residential treatment and day or socialization programs in the area to be served by the system.

3. An identification of those residential treatment programs needed to provide the continuum of residential treatment programs described in this article and strategy to encourage their development.

4. A statement on the relationship of the proposed services to the long-range behavioral health development plans.

5. A financial estimate of the costs for system planning, development and operation.

6. An estimate of the availability of resources, including health manpower and management personnel.

7. An analysis of the availability of alternative, less costly or more effective methods to provide the services.

B. The director shall establish criteria for determining the eligibility of county applicants for community residential treatment system planning grants. The criteria may include requiring each county applicant to provide local matching monies for community residential treatment system planning. If local matching monies are required, the matching requirement for state monies is seventy-five percent state and twenty-five percent from local or other sources.

§ 36-550.08 Clients' rights

Clients receiving treatment pursuant to this article are entitled to all the rights enumerated in this chapter.

§ 36-550.09 Secure behavioral health residential facility; court determination; findings

A. If a court finds that a patient meets the criteria for court-ordered treatment pursuant to section 36-540, subsection A, the court may approve the patient's placement in a secure behavioral health residential facility that is licensed by the department pursuant to section 36-425.06 and that is willing to accept the patient if the patient has been determined to be seriously mentally ill and the court finds that the patient is chronically resistant to treatment as set forth in this section. Placement in a secure behavioral health residential facility for treatment is not a period of inpatient treatment for the purposes of section 36-540, subsection F.

B. A court may determine that a person is chronically resistant to treatment if the court finds that, within twenty-four months before the issuance of a court order pursuant to this section, excluding any time during this period that the person was hospitalized or incarcerated, the person demonstrated a persistent or recurrent unwillingness or inability to participate in or adhere to treatment for a mental disorder despite having treatment offered, prescribed, recommended or ordered to improve the person's condition or to prevent a relapse or harmful deterioration of the person's condition. The court's finding shall be based on evidence that establishes all of the following by clear and convincing evidence:

1. The person received treatment in the preceding twenty-four months in other less-restrictive settings, including unsecured residential treatment settings with on-site twenty-four-hour supportive treatment and supervision by staff with behavioral health training, and the treatment was unsuccessful or is not likely to be successful due to the person's expressed or demonstrated unwillingness to cooperate with treatment in other less-restrictive or unsecured residential treatment settings.

2. The person's nonadherence to or nonparticipation in treatment over the preceding twenty-four months resulted in one or more of the following:

(a) Serious harm to self.

(b) Serious harm or threats of serious harm to others.

(c) Recurrent periods of homelessness resulting from the mental disorder.

(d) Recurrent serious medical problems due to poor self-care or failure to follow medical treatment recommendations.

(e) Recurrent arrests due to behavior resulting from the mental disorder.

3. Any other evidence relevant to the person's willingness or ability to participate in and adhere to treatment or the person's need for treatment in a licensed secure residential setting to ensure the person's compliance with court-ordered treatment.

C. A person's placement in a licensed secure behavioral health residential facility for treatment shall be part of the written treatment plan presented to and approved by the court as required by section 36-540, subsection C, paragraph 2. The court shall confirm in the order that the person's placement in a licensed secure behavioral health residential facility is the least restrictive environment to ensure the person's compliance with the treatment plan.

Chapter 5.1 Developmental Disabilities

Article 1 Administration and Regulation

§ 36-551 Definitions

In this chapter, unless the context otherwise requires:

1. "Adaptive behavior" means the effectiveness or degree to which a person meets the standards of personal independence and social responsibility expected of the person's age and cultural group.

2. "Adult developmental home" means a residential setting in a family home in which the care, physical custody and supervision of the adult client are the responsibility, under a twenty-four-hour care model, of the licensee who, in that capacity, is not an employee of the division or of a service provider and the home provides the following services for a group of siblings or up to three adults with developmental disabilities:

(a) Room and board.

(b) Habilitation.

(c) Appropriate personal care.

(d) Appropriate supervision.

3. "Adult household member":

(a) Means a person who is at least eighteen years of age and who resides in an adult developmental home, child developmental home or other home and community based service setting for at least thirty days or who resides in the household throughout the year for more than a cumulative total of thirty days.

(b) Does not include a person who is receiving developmental disabilities services from the department.

4. "Advisory council" means the developmental disabilities advisory council.

5. "Arizona training program facility" means a state-operated institution for clients of the department with developmental disabilities.

6. "Attributable to cognitive disability, epilepsy, cerebral palsy or autism" means that there is a causal relationship between the presence of an impairing condition and the developmental disability.

7. "Autism" means a condition characterized by severe disorders in communication and behavior resulting in limited ability to communicate, understand, learn and participate in social relationships.

8. "Behavioral-supported group home" means a community residential setting that meets all of the following:

(a) Is for not more than six persons with developmental disabilities.

(b) Is operated by a service provider under contract with the department.

(c) Provides room and board, daily habilitation, assistance in self-administering medication and medication administration and behavioral health services for clients with dual disorders, including psychiatric disorders and developmental disabilities, who engage in behaviors that are disruptive, socially inappropriate or harmful or dangerous to self or others, that interfere with functioning and quality of life or that may cause destruction of property.

9. "Case management" means coordinating the assistance needed by persons with developmental disabilities and their families in order to ensure that persons with developmental disabilities attain their maximum potential for independence, productivity and integration into the community.

10. "Case manager" means a person who coordinates the implementation of the individual program plan of goals, objectives and appropriate services for persons with developmental disabilities.

11. "Cerebral palsy" means a permanently disabling condition resulting from damage to the developing brain that may occur before, after or during birth and that results in loss or impairment of control over voluntary muscles.

12. "Child developmental certified home" means a regular foster home as defined in section 8-501 that is licensed pursuant to section 8-509 and that is certified by the department pursuant to section 36-593.01.

13. "Child developmental home" means a residential setting in a family home in which the care and supervision of the child are the responsibility, under a twenty-four-hour care model, of the licensee who serves as the developmental home provider of the child in the home setting and who, in that capacity, is not an employee of the division or of a service provider and the home provides the following services for a group of siblings or up to three children with developmental disabilities:

(a) Room and board.

(b) Habilitation.

(c) Appropriate personal care.

(d) Appropriate supervision.

14. "Client" means a person receiving developmental disabilities services from the department.

15. "Cognitive disability" means a condition that involves subaverage general intellectual functioning, that exists concurrently with deficits in adaptive behavior manifested before the age of eighteen and that is sometimes referred to as intellectual disability.

16. "Community residential setting":

(a) Means a residential setting in which persons with developmental disabilities live and are provided with appropriate supervision by the service provider responsible for operating the residential setting.

(b) Includes a child developmental home or an adult developmental home operated or contracted by the department or the department's contracted vendor, a group home operated or contracted by the department or a behavioral-supported group home or nursing-supported group home contracted by the department.

17. "Consent" means voluntary informed consent. Consent is voluntary if not given as the result of coercion or undue influence. Consent is informed if the person giving the consent has been informed of and comprehends the nature, purpose, consequences, risks and benefits of the alternatives to the procedure, and has been informed and comprehends that withholding or withdrawing consent will not prejudice the future provision of care and services to the client. In cases of unusual or hazardous treatment procedures performed pursuant to section 36-561, subsection A, experimental research, organ transplantation and nontherapeutic surgery, consent is informed if, in addition to the foregoing, the person giving the consent has been informed of and comprehends the method to be used in the proposed procedure.

18. "Daily habilitation" means habilitation as defined in this section, except that the method of payment is for one unit per residential day.

19. "Department" means the department of economic security.

20. "Developmental disability" means either a strongly demonstrated potential that a child who is under six years of age has a developmental disability or will develop a developmental disability, as determined by a test performed pursuant to section 36-694 or by other appropriate tests, or a severe, chronic disability that:

(a) Is attributable to a cognitive disability, cerebral palsy, epilepsy, Down syndrome or autism.

(b) Is manifested before the age of eighteen.

(c) Is likely to continue indefinitely.

(d) Results in substantial functional limitations in three or more of the following areas of major life activity:

(i) Self-care.

(ii) Receptive and expressive language.

(iii) Learning.

(iv) Mobility.

(v) Self-direction.

(vi) Capacity for independent living.

(vii) Economic self-sufficiency.

(e) Reflects the need for a combination and sequence of individually planned or coordinated special, interdisciplinary or generic care, treatment or other services that are of lifelong or extended duration.

21. "Director" means the director of the department of economic security.

22. "Division" means the division of developmental disabilities in the department of economic security.

23. "Down syndrome" means a genetic disorder caused when abnormal cell division results in extra genetic material from chromosome 21, affecting a person's cognitive and physical abilities and causing developmental issues.

24. "Epilepsy" means a neurological condition characterized by abnormal electrical-chemical discharge in the brain. This discharge is manifested in various forms of physical activities called seizures.

25. "Group home":

(a) Means a community residential setting for not more than six persons with developmental disabilities that is operated by a service provider under contract with the department and that provides room and board and daily habilitation and other assessed medically necessary services and supports to meet the needs of each person.

(b) Does not include an adult developmental home, a child developmental home, a behavioral-supported group home, a nursing-supported group home or an intermediate care facility for individuals with intellectual disabilities.

26. "Guardian" means the person who, under court order, is appointed to fulfill the powers and duties prescribed in section 14-5312. Guardian does not include a guardian pursuant to section 14-5312.01.

27. "Habilitation" means the process by which a person is assisted to acquire and maintain those life skills that enable the person to cope more effectively with personal and environmental demands and to raise the level of the person's physical, mental and social efficiency.

28. "Indigent" means a person with a developmental disability whose estate or parent is unable to bear the full cost of maintaining or providing services for that person in a developmental disabilities program.

29. "Individual program plan" means a written statement of services to be provided to a person with developmental disabilities, including habilitation goals and objectives, that is developed following initial placement evaluation and revised after periodic evaluations.

30. "Intermediate care facility for individuals with intellectual disabilities" means a facility that primarily provides health and rehabilitative services to persons with developmental disabilities that are above the service level of room and board or supervisory care services or personal care services as defined in section 36-401.

31. "Large group setting" means a setting that in addition to residential care provides support services such as therapy, recreation and transportation to seven or more persons with developmental disabilities who require intensive supervision.

32. "Least restrictive alternative" means an available program or facility that fosters independent living, that is the least confining for the client's condition and that provides service and treatment in the least intrusive manner reasonably and humanely appropriate to the individual's needs.

33. "Likely to continue indefinitely" means that the developmental disability has a reasonable likelihood of continuing for a protracted period of time or for life.

34. "Manifested before the age of eighteen" means that the disability must be apparent and have a substantially limiting effect on a person's functioning before the age of eighteen.

35. "Nursing-supported group home" has the same meaning prescribed in section 36-401.

36. "Physician" means a person who is licensed to practice pursuant to title 32, chapter 13 or 17.

37. "Placement evaluation" means an interview and evaluation of a person with a developmental disability and a review of the person's prior medical and program histories to determine the appropriate developmental disability programs and services for the person and recommendations for specific program placements for the person.

38. "Psychologist" means a person who is licensed pursuant to title 32, chapter 19.1.

39. "Respite services" means services that provide a short-term or long-term interval of rest or relief to the care provider of a person with a developmental disability.

40. "Responsible person" means the parent or guardian of a minor with a developmental disability, the guardian of an adult with a developmental disability or an adult with a developmental disability who is a client or an applicant for whom no guardian has been appointed.

41. "Service provider" means a person or agency that provides services to clients pursuant to a contract, service agreement or qualified vendor agreement with the division.

42. "State operated service center" means a state owned or leased facility that is operated by the department and that provides temporary residential care and space for child and adult services that include respite care, crisis intervention and diagnostic evaluation.

43. "Subaverage general intellectual functioning" means measured intelligence on standardized psychometric instruments of two or more standard deviations below the mean for the tests used.

44. "Substantial functional limitation" means a limitation so severe that extraordinary assistance from other people, programs, services or mechanical devices is required to assist the person in performing appropriate major life activities.

45. "Supervision" means the process by which the activities of an individual with developmental disabilities are directed, influenced or monitored.

§ 36-551.01 Persons with developmental disabilities; rights guaranteed

A. A person with a developmental disability in this state shall not be denied as the result of the developmental disability the rights, benefits, and privileges guaranteed by the constitution and laws of the United States and the constitution and laws of this state. The rights of persons with developmental disabilities which are specifically enumerated in this chapter are in addition to all other rights enjoyed by such persons. The listing of rights is not exclusive or intended to limit in any way rights which are guaranteed to persons with developmental disabilities under state and federal laws.

B. Every person with a developmental disability has the right to protection from exploitation and abuse on the basis of a developmental disability.

C. Every person with a developmental disability who is provided residential care by the state has the right to live in the least restrictive alternative, as determined after an initial placement evaluation has been conducted for that person.

D. Every school-age person with a developmental disability has the right to receive publicly-supported educational services in accordance with the applicable specific education laws of the state.

E. An employer, employment agency or labor organization shall not deny a person equal employment opportunity because of developmental disability except under both of the following circumstances:

1. The denial is based on a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.

2. The person's developmental disability significantly impairs the person's ability to meet the qualifications for the position in question.

F. An owner, lessee, sublessee, assignee, or managing agent of or other person having the right to sell, rent or lease any real property or agency or employee of that person shall not refuse to sell, rent or lease to any person or group of persons solely on the basis of developmental disability.

G. Any person with a developmental disability requesting to be provided with developmental disability programs or services has the right, prior to receiving programs or services, to receive a placement evaluation to determine the need for developmental disability services and to determine the appropriate services for such person.

H. Persons with developmental disabilities have the right to presumption of legal competency in guardianship proceedings.

I. Persons with developmental disabilities have the right to fair compensation for labor.

J. Each client who has been accepted to receive developmental disability services has the right to receive a written individual program plan. Each plan shall be developed by appropriate department personnel with the participation of the client and the client's parent or guardian, if any, and shall be based on the relevant results of the placement evaluation.

K. Every client has the right to periodic review of the individual program plan to measure progress, to modify objectives and programs if necessary and to provide guidance and remediation techniques.

L. Each client and each parent or guardian of a minor client or the guardian of an adult client has the right to participate in the client's initial placement evaluation and periodic evaluations and to be informed in writing of the client's progress at reasonable intervals. Whenever possible, the responsible person shall be given the opportunity to decide among several appropriate alternative services available to the client from the service provider.

M. The responsible person has the right to withdraw the client from developmental disability programs and services unless the client was assigned to the department by the juvenile court. If a client is assigned pursuant to section 36-559, subsection D, the client shall seek and receive the court's permission before the client may withdraw.

N. Clients have the right to be free from mistreatment, neglect and abuse by service providers.

O. Each client has the right to be free from unnecessary and excessive medication. Medication shall not be used as punishment, for the convenience of the staff, as a substitute for an individual program plan, or in quantities that interfere with the client's individual program plan. Prescription-only medication for each client shall be authorized only by the prescription of a physician and the administration of such medication shall be directed by a physician.

P. On admission for developmental disability services, each client and the client's parent or guardian, if any, shall be given written notice, if possible, and oral notice in their primary language, in a manner which can be easily understood, of the rights included in this chapter, including the right to administrative reviews. If written or oral language is not the primary mode of communication of the client or the client's parent or guardian, notice shall be given to that person in the primary mode of communication, if possible. However, if a client is manifestly unable to comprehend these rights, notice to the parent or guardian of a minor client or to the guardian of an adult client shall be sufficient.

Q. Persons with developmental disabilities who are residents in residential programs operated or supported by the department have the right to a humane and clean physical environment, the right to communication and visits and the right to personal property.

R. A child with a developmental disability has the right to appropriate services that are consistent with the child's written individual program plan. These services do not require the relinquishment or restriction of parental rights or custody except as prescribed in section 8-533. These services are subject to available appropriations if they are not mandated by federal law.

S. Any person with a developmental disability or the parent or guardian of a person with a developmental disability who believes that his rights, as established by this chapter or by the Constitution of the United States or the Constitution of Arizona, have been violated has a right to petition the superior court for redress unless other remedies exist under federal or state laws.

§ 36-552 Developmental disabilities function; expenditure limitation

A. The department shall function as the developmental disabilities authority for the state of Arizona.

B. No provisions of this chapter shall be construed to give the department control of lawful activities of other governmental agencies or of activities of the universities or colleges of this state in the field of developmental disabilities, unless by specific contract or agreement therefor.

C. Subject to annual legislative appropriation and other available funding, the department shall provide a wide variety of developmental disability programs and services throughout the state in response to the wide range of developmental disability conditions, the capabilities of persons with developmental disabilities and the presence of other disabling conditions for persons with developmental disabilities.

D. The department may contract with other state agencies and with private agencies to provide the developmental disabilities program or service.

E. The total amount of state monies that may be spent in any fiscal year by the department for developmental disabilities services pursuant to this chapter shall not exceed the amount appropriated or authorized by section 35-173 for that purpose. This chapter shall not be construed to impose a duty on an officer, agent or employee of this state to discharge a responsibility or to create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

§ 36-553 Developmental disabilities advisory council; membership; duties; reporting requirements

A. The developmental disabilities advisory council is established consisting of the following members:

1. One parent or guardian of a child who is under eighteen years of age and who has a developmental disability.

2. One parent or guardian of a child who is eighteen years of age or older and who has a developmental disability.

3. One parent of a child who is served through the Arizona early intervention program.

4. One member of the private sector who represents an agency that is certified to provide in-home services to persons with developmental disabilities.

5. Two members of the private sector who are contracted with the division to deliver services to persons with developmental disabilities, one who represents a provider of residential services and one who represents a provider of adult day services including employment services.

6. Two members with a developmental disability who receive services from the division.

7. Two members who each represent a different developmental disability advocacy organization.

8. One member who is from the designated protection and advocacy organization.

9. One member who represents a nonprofit organization providing direct advocacy to families with children with developmental disabilities.

10. The director of the Arizona health care cost containment system administration or the director's designee. This person is a nonvoting member.

11. The assistant director of the division of developmental disabilities. This person is a nonvoting member.

12. One member who is from the developmental disabilities planning council.

13. One member who represents foster parents of children with developmental disabilities.

14. One member from the independent oversight committee on persons with developmental disabilities established by section 41-3801.

B. The governor shall appoint all voting members. Voting members and their families shall not be employees of the department of economic security. In making these appointments, the governor shall select at least five members who are clients or guardians, parents or other family members of persons with developmental disabilities. One of these five voting members shall represent a person who is eligible for long-term care services pursuant to chapter 29, article 2 of this title. The governor shall also consider geographic representation in making these appointments.

C. Council members who are appointed pursuant to subsection A, paragraphs 1 through 9 and 13 and 14 of this section shall serve staggered three-year terms. Members may not serve more than two full terms. A vacancy occurring on the council shall be filled by the governor appointing another qualified person to serve the remainder of the term.

D. The council chairman shall be chosen annually by a majority vote of the council. A majority of voting council members constitutes a quorum.

E. The council shall meet in each district at least once a year. The council's annual in-district meetings shall be separate from any other division meeting.

F. The division must allow the council up to thirty days to review new policies and major policy changes before the division submits the policies or changes for public comment. The division may submit policies or changes for public comment before thirty days if the council confirms it has had adequate time to review the policies or changes. Division staff shall be available to the council to answer questions and review the proposed changes before the changes are submitted for public comment.

G. The council shall review auditor general reports regarding the division and services provided by the department of health services.

H. Council members are not eligible to receive compensation, but council members appointed pursuant to subsection A, paragraphs 1 through 9 and 13 and 14 of this section are eligible to receive reimbursement of expenses pursuant to title 38, chapter 4, article 2. The department shall provide the same accommodations for all members of the council when travel is necessary for council business.

I. The council shall review and make recommendations to the division regarding:

1. Coordinating and integrating services provided by state agencies and providers that have contracted with state agencies to provide developmental disability programs.

2. The health, safety, welfare and legal rights of persons with developmental disabilities.

3. The division's plan for service delivery and improvement.

4. Establishing and reviewing division policies and programs.

5. The cost-effectiveness of division services.

6. Assessing the division's annual needs.

7. Selecting the assistant director of the division.

8. Monitoring the division's annual budget.

9. The sale or lease of the real property and improvements on the real property formerly used by the department of economic security for the Arizona training program in Phoenix.

J. At the beginning of each fiscal year, the council shall adopt a master agenda that schedules each item prescribed in subsection I of this section and shall notify the appropriate agencies in order for the agencies to provide and present information to the council. Division staff shall assist the council in preparing the annual report that includes the council's findings and recommendations relating to the information the council received regarding the items prescribed in subsection I of this section.

K. The department of administration shall annually educate the council members and division staff on the purpose of the council, council statutes and open meetings laws.

L. The council shall oversee and approve expenditures of monies from the client developmental disability services trust fund established by section 36-572 following expenditure guidelines established by the council.

M. The council shall provide the public with an opportunity to address the council at regularly publicized meetings.

N. The council shall submit an annual report of activities to the director, the governor, the president of the senate and the speaker of the house of representatives by December 31 of each year and shall provide a copy of this report to the secretary of state.

O. The department shall make meeting space available to the developmental disabilities advisory council at locations and times convenient to the council and shall provide secretarial and other staff support.

P. The division shall post in a prominent and accessible manner on its public website all of the following:

1. Scheduled meetings of the council, including in-district meetings.

2. The council's meeting minutes.

3. The council's annual reports.

Q. The department shall delineate in its annual budget request a separate line item for the council. The council shall be delineated as a separate line item in the general appropriations act.

§ 36-554 Powers and duties of director

A. The director shall:

1. Be responsible for developing and annually revising a statewide plan and initiating statewide programs and services for persons with developmental disabilities in locations where the programs and services are necessary, which shall include:

(a) Child services, which may include infant stimulation, developmental training for pre-school children and special education at Arizona training program facilities for school-age, children with developmental disabilities residing at Arizona training program facilities who do not attend public school.

(b) Adult services, in coordination with the vocational rehabilitation services of the department, which may include but not be limited to job training and training and adjustment services, job development and placement, sheltered employment and other nonvocational day activity services for adults.

(c) Residential services, including various community residential settings, Arizona training program facilities and state operated service centers which provide varying levels of supervision in accordance with the developmental disability levels of the persons placed at such settings, facilities or centers. The department shall contract with private profit or nonprofit agencies to provide appropriate residential settings for persons with developmental disabilities which provide for regular assistance and supervision of such persons and which provide varied developmental disability programs and services on or near the community residential setting.

(d) Resource services, which may include comprehensive evaluation services, information and referral services and outpatient rehabilitation and social development services. The department in providing developmental disability programs and services shall whenever practicable utilize qualified private contractors. In selecting private contractors, the department shall utilize those contractors which can clearly demonstrate an ability to perform such contract in accordance with standards and specifications adopted by the department.

2. Establish standards, provide technical assistance, and supervise all developmental disability programs and services operated by or supported by the department.

3. Coordinate the planning and implementation of developmental disability programs and activities, institutional and community, of all state agencies, provided this shall not be construed as depriving other state agencies of jurisdiction over, or the right to plan for, control, and operate programs that pertain to developmental disability programs but that fall within the primary jurisdiction of such other state agencies.

4. Periodically assess the effectiveness of the quality assurance system as required by 42 Code of Federal Regulations section 434.34 as it pertains to developmental disabilities programs.

5. License community residential settings pursuant to this chapter.

6. Develop rules establishing a procedure for handling complaints about community residential settings.

7. Inform in writing every parent or guardian of a client with a developmental disability residing at or transferring to a community residential setting of the complaint handling procedure.

8. As new community residential settings are developed over a period of time, reduce the clientele at Arizona training program facilities to those persons with developmental disabilities who are required to be in Arizona training program facilities because the community lacks an appropriate community residential setting that meets their individual needs or whose parents or legal guardians want them in an Arizona training program facility.

9. In conjunction with the division, individuals with developmental disabilities and their families, advocates, community members and service providers, develop, enhance and support environments that enable individuals with developmental disabilities to achieve and maintain physical well-being, personal and professional satisfaction, participation as family and community members and safety from abuse and exploitation.

10. Do all other things reasonably necessary and proper to carry out the duties and the provisions of this chapter.

11. Adopt rules regarding procurement procedures similar to those found in title 41, chapter 23.

B. Programs and services offered pursuant to subsection A, paragraph 1 of this section shall be provided in cooperation with public and private resources that can best meet the needs of persons with developmental disabilities and that are located in the community and in proximity to the persons being served.

C. The director may:

1. Establish nonresidential outpatient programs for placement, evaluation, care, treatment and training of persons with developmental disabilities residing in the community who are not eligible for public school programs, and who do not have access to other state supported programs providing equivalent services.

2. Develop cooperative programs with other state departments and agencies, political subdivisions of the state, and private agencies concerned with and providing services for persons with developmental disabilities.

3. Contract for the purchase of services with other state and local governmental or private agencies. Such agencies are authorized to accept and expend funds received pursuant to such contracts.

4. Stimulate research by public and private agencies, institutions of higher learning, and hospitals in the interest of the prevention of developmental disabilities and improved methods of care and training for persons with developmental disabilities.

5. Apply for, accept, receive, hold in trust or use in accordance with the terms of the grant or agreement any public or private funds or properties, real or personal, granted or transferred to it for any purpose authorized by this chapter.

6. Make and amend rules from time to time as deemed necessary for the proper administration of programs and services for the treatment of persons with developmental disabilities, for the admission of persons with developmental disabilities to the programs and services and to carry out the purposes of this chapter.

§ 36-555 Coordination of programs by department with special education programs

A. The department may conduct jointly, directly or indirectly, with a school district the placement evaluation of a person with a developmental disability who has applied for or is receiving developmental disability programs or services from the department and who is either enrolled or in the process of being evaluated for enrollment in a special education program or may contract with such school district to provide the evaluation for the school district or to have the school district provide the placement evaluation for the department. With consent of the parent the evaluation information may be shared by and among department of economic security and department of education personnel, or personnel from the local education agency, for purposes of ensuring the provision of special education and related services as required by the individuals with disabilities education act (20 United States Code sections 1400 through 1415).

B. The department shall coordinate its development of an individual program plan for a person with a developmental disability who has applied for or who is receiving developmental disability programs or services provided directly or indirectly by the department with the school district in which the person with a developmental disability is enrolled with the school district's development of an individual education program plan for such person.

C. When a child with a developmental disability has received developmental disabilities programs or services provided directly or indirectly by the department, upon request of the responsible person or the school district in which the child is enrolled, the department shall provide follow-up placement evaluation and case management services for the child with a developmental disability for a period of six months after the child has become enrolled in the school district.

D. During the one-year period prior to the graduation or other termination of school attendance by a person with a developmental disability, the department shall, upon the request of the responsible person, provide placement evaluation and case management services for such person. Such evaluation shall consider the person's needs for housing, employment training, employment and support services.

E. The department of economic security shall coordinate the residential placement of all school-age persons with developmental disabilities in residential housing facilities operated or supported by the department of economic security with the school districts in which such residential facilities will be located and with the department of education in a manner which will make best use of existing programs and facilities and operational capabilities and which will not cause serious overcrowding of school facilities or programs.

§ 36-556 Coordination with department of health services; duties of department

The department of economic security shall coordinate with the department of health services in:

1. The development of specialized programs for persons with developmental disabilities at the state hospital.

2. Planning and providing residential care services and related child, adult and resource services for persons with developmental disabilities on their discharge from the state hospital, in accordance with section 36-560. The department of health services shall provide the department of economic security with notice fifteen days before discharge.

§ 36-557 Community developmental disability services; service providers

A. The department may use state and federal monies that are appropriated or otherwise available to it for this purpose to assist in establishing and maintaining local developmental disability services by public or private nonprofit or profit agencies. The monies may be expended as professional fees for service, in contracts for advancement or reimbursement or in another appropriate manner and may be used for any purpose necessary to provide local developmental disability services. The monies may not be used for departmental salaries, care of persons with developmental disabilities by the department or any other purpose within the department, but may be used for consultation to the department in the interest of local programs.

B. A local public or private nonprofit or profit agency providing or intending to provide community developmental disability services and desiring to contract with the department to furnish these services shall submit a program plan and budget to the department on the forms and in the manner required by the department. If the program meets departmental standards and is consistent with the state plan of the department and the individualized service program plan of the client, the department, notwithstanding the provisions of title 41, chapter 23, relating to procurement and including services pursuant to section 36-2943, may contract with that agency for required services on terms the department requires. The contracts shall provide that the provider of services is subject to a continuing program evaluation by the department through progress reports, expenditure reports, program audits or other appropriate evaluation techniques to ensure that the provider of service is in continued compliance with the terms of the contract and the department's community developmental disability service standards and requirements.

C. Contracts between the department and a school district or districts are subject to approval by the department of education.

D. This article does not make the department or the state responsible for funding programs beyond the limits of legislative appropriation for the programs. This article does not require a service provider to provide unreimbursed services to the department or its clients.

E. Contracts to provide community developmental disability services shall require that:

1. The contractor is obligated to operate a program or service in strict accordance with the standards adopted for that program or service by the department.

2. If state funding is provided for a particular program the contractor, to the extent of positions available that are being purchased by the department, shall provide services to a client with a developmental disability who has been evaluated and placed by the department.

3. All contractors must carry liability insurance in amounts approved by the risk management division of the department of administration and file proof of insurance with the risk management division. The director may waive that requirement on a case-by-case basis on a finding that insurance for the program or service is not practicably available at affordable rates and that it is necessary that the program or service be provided by the contractor.

4. All clients enrolled in programs have all the same specified rights as they would have if enrolled in a program operated directly by the state.

5. Except for emergency placement pursuant to section 36-560, subsection N, payment shall not be made based on program services provided to a client if a placement evaluation has not been made, and no individual program has been prepared and when, based on that placement evaluation, no recommendation has been made to enroll the client in the particular program service.

F. This article does not require a contracted agency to provide unreimbursed services to the department or a client of the department.

G. Contracts to purchase residential care services other than those community residential settings licensed pursuant to this chapter, in addition to other general requirements applicable to purchase of care contractors, shall:

1. Provide for mandatory inspection by the department every two years for facilities other than group homes.

2. Provide for mandatory monitoring by the department for health, safety, contractual and programmatic standards at least every six months, unless the department has granted deemed status to the service provider or the service provider received a score of at least ninety-five percent on the most recent monitoring visit. If the department has granted deemed status or awarded the service provider with a score of at least ninety-five percent on the most recent monitoring visit, the department shall monitor that service provider once each year. On a determination by the department that there is reasonable cause to believe a service provider is not adhering to the department's programmatic or contractual requirements, the department and any duly designated employee or agent of the department may enter on and into the premises at any reasonable time for the purpose of determining the service provider's state of compliance with the department's programmatic or contractual requirements.

3. Provide for mandatory investigation by the department in response to complaints within ten working days, except that in those instances that pose a danger to the client, the department shall conduct the investigation immediately. Health and safety complaints related to group homes shall be referred to the department of health services on receipt. The department of health services shall share all incident reports related to health and safety with the division of developmental disabilities.

4. Except for group homes licensed by the department of health services, specify the health and safety and sanitation codes and other codes or standards applicable to the facility or to the operation of the facility by the contractor other than group homes.

5. Provide for mandatory periodic reports to be filed by the provider contractor with the department with respect to the operation of the facility.

6. Provide that the facility and the books and records of the facility and of the provider are subject to inspection at any time by employees of the department or designees of the department.

7. Provide that parents and guardians of persons with developmental disabilities residing at the facility, members of the developmental disabilities advisory council, and members of other recognized and ongoing advocacy groups for persons with developmental disabilities may inspect the facility at reasonable times.

H. Contracts for the purchase of residential care services shall require a community residential setting to be licensed pursuant to this chapter other than group homes, behavioral-supported group homes and nursing-supported group homes that are licensed by the department of health services.

I. Contracts for the purchase of day program or employment services, in addition to the other general requirements applicable to the purchase of client services, must provide for mandatory monitoring by the department for health, safety, contractual, programmatic and quality assurance standards at least once every six months, unless the department has granted deemed status to the service provider. If the department has granted deemed status to the service provider, the department shall monitor that service provider once each year. The department and any duly designated employee or agent of the department may enter on or into the service provider's premises at any reasonable time for the purpose of determining the service provider's state of compliance with the department's programmatic, contractual and quality assurance requirements.

J. The division shall ensure that all contracted developmental disabilities service providers rendering services pursuant to this chapter are reimbursed in accordance with title XIX of the social security act.

K. Contracts for client services issued by the department shall include language outlining the provisions for a grievance and appeal procedure. The director shall provide notice to service providers not less than thirty days before the issuance of an amendment to a qualified vendor agreement. The decision of the director regarding qualified vendor agreement amendments may be appealed pursuant to title 41, chapter 6, article 10. The grievance process applicable to these contracts shall comply with title XIX requirements.

L. As a condition of contracts with any developmental disabilities service provider, the director shall require terms that conform with state and federal laws, title XIX statutes and regulations and quality standards. The director shall further require contract terms that ensure performance by the provider of the provisions of each contract executed pursuant to this article.

M. The division shall establish a rate structure that ensures an equitable funding basis for private nonprofit or for-profit agencies for services pursuant to subsection B of this section and section 36-2943. In each fiscal year, the division shall review and adjust the rate structure based on section 36-2959. A rate book shall be published and updated by the division to announce the rate structure that shall be incorporated by reference in contracts for client services.

N. The division shall disclose to a service provider in the individual program plan, and in all meetings resulting from a response to a vendor call, any historical and behavioral information necessary for the service provider to be able to anticipate the client's future behaviors and needs, including summary information from the program review committee, unusual incident reports reviewed by the independent oversight committee and behavioral treatment plans. The division shall redact the client's identification from this information.

O. Service providers are authorized to engage in the following activities in accordance with a client's individual program plan:

1. Administer medications, including assisting with the client's self-administration of medications.

2. Log, store, remove and dispose of medications.

3. Maintain medications and protocols for direct care.

4. Serve as the client's representative payee if requested by the client or the client's guardian and approved by the payer.

P. The department may adopt rules establishing procedures for engaging in the activities listed in subsection O of this section.

Q. To protect the health and safety of a client, a service provider must notify the division within twenty-four hours if an emergency situation exists in which the service provider is unable to meet the health or safety needs of the client.

R. On notification of an emergency situation, the department shall hold an individual program plan meeting within fifteen days after notification to recommend any changes, including whether there is a need for temporary additional staffing to provide appropriate care for a client, and develop a plan within thirty days after notification to resolve the situation.

S. Service providers shall develop and implement policies and procedures regarding the communication to responsible persons of a serious incident affecting a client who is living in a community residential setting within twenty-four hours after the serious incident occurs.

§ 36-558 Establishment and maintenance of programs and services; definition

A. In addition to the Arizona training program facilities at Randolph and Tucson, the director shall establish and maintain a state owned and operated service center in Phoenix and other developmental disabilities programs and services at other locations throughout the state, subject to the availability of funds for such purpose and the approval of the legislature.

B. The director is responsible for the operation of each developmental disabilities program and service, shall coordinate these services and shall permit the transfer of residents between the various programs.

C. The department may provide, but not be limited to, the following programs and services in addition to other services prescribed by the director:

1. Child services, which may include:

(a) Infant stimulation.

(b) Developmental day training and related preschool programs.

(c) Special education at department facilities.

2. Adult services, which may include:

(a) Job training for specific jobs.

(b) Training and personal adjustment tools such as the teaching of work skills.

(c) Job development and placement.

(d) The provision of sheltered employment opportunities.

(e) Adult day activity services.

3. Residential services, which shall include:

(a) Arizona training program facilities.

(b) State owned and operated service centers.

(c) Community residential settings under varying degrees of supervision or a semi-independent living arrangement.

(d) Respite care.

4. Resource services, which may include:

(a) Diagnoses and evaluations.

(b) Therapy services, including physical therapy, speech therapy, occupational therapy and behavioral therapy.

(c) Health-related services, including dental services.

(d) Social development and adjustment services, including recreation programs.

(e) Transportation.

(f) Information and referral.

(g) In-home services.

5. Public information resources on developmental disabilities.

6. Training and practicum programs in conjunction with other state agencies and universities and colleges for teachers, psychologists, social workers, medical personnel and others interested in the field of developmental disabilities.

7. Research laboratories in the fields of behavioral services and abstract research.

8. Guardianship services.

D. Services of a facility may not supplant existing community services that are provided through other local, city or state resources.

E. The department shall stimulate, cooperate with and promote the development of community programs through existing resources and provide consultation wherever needed.

F. A service provider who is providing guardianship services must comply with the disclosure requirements of section 14-5106 and shall not provide services to a person with developmental disabilities that would cause a conflict of interest or that would jeopardize the service provider's ability to represent the person with developmental disabilities as a guardian.

G. For the purposes of this section, "guardianship services" means services offered to a person with developmental disabilities by a service provider who is under contract with the division to act as a guardian to a person with developmental disabilities if no other appropriate guardian is available.

§ 36-558.01 Operation, support and supervision of child developmental homes and foster homes; duties of department

A. The department shall operate directly or support and supervise child developmental homes and foster homes licensed pursuant to title 8, chapter 4, article 4 to provide specialized foster care to persons with developmental disabilities. Such homes shall be operated for persons placed pursuant to sections 8-514.01 and 8-845 and for appropriate placements for persons for whom an application for residential services has been made to the department.

B. In furtherance of its responsibility pursuant to subsection A of this section, the department shall recruit, license and support such homes in accordance with this chapter, maintain regular supervision of such homes and such placements, conduct training programs for the staff of such homes and develop the program and service standards for persons with developmental disabilities to be placed in such homes.

C. Foster homes supported by the department shall be paid for each person with a developmental disability placed in the home an amount determined by the department based on the type of developmental disability and the consequent need for programs and services of each person so placed.

§ 36-558.02 State operated service center

The state operated service center shall provide temporary residential care and space for child and adult services. Residential care includes respite services, crisis intervention and diagnostic evaluation.

§ 36-559 Eligibility for developmental disabilities programs, services and facilities

A. Except as provided in subsection B of this section, a person with a developmental disability is eligible to apply for developmental disabilities programs, services and facilities operated by, licensed and supervised by or supported by the department if such person:

1. Is a bona fide resident of the state of Arizona.

2. Is a person with a developmental disability as defined in this chapter and provides medical and psychological documentation of such developmental disability utilizing tests which are culturally appropriate and valid, or is an infant and as a result of tests performed pursuant to section 36-694, or other appropriate tests, there is strongly demonstrated potential that the infant has a developmental disability or will have a developmental disability.

B. After the department conducts preadmission screening pursuant to section 36-2936 and determines that a person with a developmental disability may be potentially eligible for the Arizona long-term care system pursuant to chapter 29, article 2 of this title, the person shall be referred to the Arizona health care cost containment system administration for an eligibility determination pursuant to section 36-2933, if either of the following applies:

1. The person is a new applicant who is not receiving services and applies for services pursuant to this chapter.

2. The person is eligible for services pursuant to this chapter and would receive services, other than case management, if state funding were available.

C. A person who is referred to the Arizona health care cost containment system administration shall first be determined eligible or ineligible for the Arizona long-term care system, pursuant to chapter 29, article 2 of this title, before receiving services pursuant to this chapter. Applicants who voluntarily refuse to cooperate in the eligibility process are not eligible for services pursuant to this chapter. An applicant's or current service recipient's refusal to establish or convert an estate or trust pursuant to section 36-2934.01 shall be deemed a voluntary refusal to cooperate. A form explaining loss of benefits due to a voluntary refusal to cooperate shall be signed by the applicant or current service recipient. Voluntary refusal to cooperate shall not be construed to mean the applicant's inability to obtain documentation required for eligibility determination.

D. The department shall determine eligibility. If the person is not eligible, the department of economic security shall refer the person to the department of health services for treatment as directed by the court to coordinate necessary and reasonable services. Services provided pursuant to this subsection are subject to the availability of funding.

§ 36-560 Admission

A. Persons shall be admitted to developmental disabilities programs or services operated by or supported by the department only pursuant to the procedures prescribed in this chapter. An application for admission shall be submitted on forms provided by the department in accordance with the rules and procedures adopted by the department.

B. Admission into any developmental disabilities program or service operated by the department or supported by the department is subject to availability of space in any program or service and is subject to annual legislative appropriation and other available funding.

C. A person shall not receive developmental disabilities services unless proof of the requirements set forth in section 36-559 is provided.

D. An application shall be signed by the responsible person. An admission or assignment of any client to a program, service or facility shall not be made without the consent of the responsible person. If an application for admission to a residential program is made for a client who is fourteen to eighteen years of age and who is capable of giving voluntary informed consent, that client and the client's parent or guardian shall jointly apply, unless it appears to the department that the client is manifestly incapable of giving consent. An adult capable of giving consent may apply for admission and may be assigned to programs, services or facilities.

E. If an adult applicant applies for admission, or when a minor client served directly or indirectly by the department becomes eighteen years of age, and the applicant or client reasonably appears to be impaired by developmental disabilities to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, the department shall require that prior to receiving or continuing to receive developmental disabilities programs or services the applicant have a guardian appointed pursuant to title 14, chapter 5, or shall have had a judicial determination made that it is not necessary to appoint a guardian for that person.

F. There shall be no judicial admissions except pursuant to section 8-242 and as stipulated in section 36-559, subsection D.

G. No person may be admitted or assigned to any developmental disabilities facility, program or service unless the person has received a placement evaluation to determine the need for the developmental disabilities programs and services which are appropriate for that person and the admittance or assignment is consistent with the recommendation or placement evaluation. Each placement evaluation shall be governed by the following conditions:

1. The placement evaluation team shall consist of a group assigned by the department which shall include a department employee to serve as the case manager, the parent or guardian of the applicant and appropriate program staff of the department. Counsel for the applicant and a friend or advocate of the applicant designated in the application for admission may also attend the evaluation sessions for the applicant.

2. A placement evaluation report shall be prepared within thirty days after the placement evaluation is initiated which shall recommend the assignment of the applicant to certain designated types of developmental disabilities programs or services operated by or supported by the department. In this process the specific assignment request of the responsible person shall be given strong consideration.

3. A placement evaluation conducted by the department for the purpose of determining appropriate developmental disabilities programs and services shall not include an evaluation of a child for placement in a special education program in a school district.

4. The procedure prescribed in section 36-559, subsection D constitutes a placement evaluation for the purposes of this chapter.

H. The standards for determining the assignment for the applicant to a particular service shall be in the best interest of the client, taking into consideration the age, the degree or type of developmental disability, the presence of other disabling conditions of the applicant, the ability to provide the applicant with the maximum opportunity to develop the person's maximum potential, to provide a minimally structured residential program and environment for the applicant and to provide a safe, secure and dependable residential and program environment for the applicant and the particular desires of the applicant. In making this determination, the placement evaluation team shall consider the reports of all previous placement-type evaluations performed for such applicant, the medical and program history of the applicant and the services and programs available from this state, contractors of this state and other providers.

I. After the placement evaluation report has been issued and the responsible person accepts the assignment of all programs or services, the department shall enroll the applicant in the programs or services within thirty days, subject to the provisions of subsection B of this section. If the applicant cannot be enrolled within thirty days, written and oral notice, subject to the requirements of section 36-551.01, subsection P, shall be given to the applicant and the responsible person, within ten days of the department's determination that the applicant cannot be enrolled, informing such persons of the department's determination. The notice shall also include the appropriate procedures, which the applicant or the responsible person should follow to assure that the applicant is enrolled.

J. The department may attach conditions to the direct or indirect provision of services with which the client would be required to comply in order to receive the services. These conditions may include requiring the client to participate in appropriate day programs as a condition of providing residential services and residential facilities. A client assigned to a residential program may be required to assist in daily housework in maintaining the facility as part of the client's individual program.

K. The department may refuse to provide specific services that are requested by the client but that are not recommended for the client as a result of the evaluation.

L. Application for admission shall be one of the following types:

1. "Regular admission" for placement of a person with a developmental disability for developmental disabilities programs and services after a placement evaluation has been conducted for such person.

2. "Emergency admission" for placement of a person with a developmental disability when there is an immediate and compelling need for short-term developmental disabilities programs and services.

M. Regular admission shall be permitted only after a placement evaluation has been conducted and only if space is available at the facility or in the program or service in which placement is requested.

N. Emergency admission for applicants with developmental disabilities shall be permitted even though a placement evaluation has not been performed, if:

1. Space is available at the facility or in the program or service in which placement is requested.

2. The department determines that the facility, program or service will meet the needs of the client.

3. The client has an urgent need for short-term placement and care which the facility, program or service provides and is otherwise eligible for services pursuant to the requirements set forth in section 36-559.

O. Developmental disabilities programs and services may be provided to a person with developmental disabilities admitted pursuant to an emergency admission for a period not to exceed sixty consecutive days following admission or until a placement evaluation is performed, whichever period first occurs.

§ 36-561 Prohibiting certain treatment or drugs; use of aversive stimuli

A. No psychosurgery, insulin shock or electroshock treatment or experimental drugs shall be administered by the department to any client, nor shall the department license, approve or support any program or service which uses such treatment or drugs.

B. The department shall adopt rules and regulations specifying the aversive stimuli used for any developmental disabilities program or service provided directly by, licensed and supervised by, or supported by the department. Copies of such rules and regulations shall be made available to all parents, guardians, applicants and clients participating in placement evaluations. The department shall provide at least sixty days notice to all responsible persons prior to implementing any modification to such rules and regulations. No aversive stimuli shall be used or permitted by the department in any such program or service except in accordance with the adopted rules and regulations and the client's individual program plan.

§ 36-562 Schedule of financial contribution; review of payment order

A. Money for the support of a person with a developmental disability in a residential program operated or supported by the department, except for children placed in special foster homes as described in section 36-558.01, pursuant to sections 8-242, 8-514.01 and 8-845, shall be paid to the department, and by it deposited, pursuant to sections 35-146 and 35-147, and shall continue to be paid unless the person is terminated from such residential program.

B. The financial contribution by the parent of a minor with a developmental disability shall terminate on the eighteenth birthday of such person. The financial contribution by parents on behalf of two or more persons with developmental disabilities receiving developmental disabilities programs or services shall not exceed the maximum amount such parents would be required to pay if only one of such children was receiving the programs or services.

C. The department by rule shall prescribe a fee schedule for developmental disability residential programs provided directly or indirectly by the department. The amount of annual liability of a person with a developmental disability or parent for residential programs and services provided shall be based on the percentage of gross income of the person with a developmental disability or parent, as defined by section 61 of the United States internal revenue code, except that part of the gross income of a self-employed person that results from the operation of the person's business shall be adjusted by the deductions allowed in the internal revenue code relating to such income in computing adjusted gross income.

D. For a person with a developmental disability or a parent of a minor with a developmental disability with an estate, trust or annuity, the amount of annual liability for residential programs and services shall be based on the actual cost of services until the individual meets the financial eligibility requirements for federal social security supplemental income benefits or the financial eligibility requirements for the Arizona long-term care system. In billing a trust, the department is not limited to trust income, but shall also bill the trust corpus.

E. The director shall review the order for payment for residential care and services at least annually, and shall require the responsible person to update the financial information provided annually or at any time on request by the county board of supervisors or by the parent, guardian, or other person making such payments. Section 36-563 applies to any order or change in order for payment.

F. The responsible person shall furnish current financial information to the director and to the appropriate county board of supervisors at the times and on the forms and in the manner prescribed by the director, provided that such information shall be held by the director and the county board of supervisors to be strictly confidential, and it shall not be divulged except in the instance where it is necessary in connection with legal action.

G. A financial contribution, which shall not exceed the actual cost of the programs and services provided, may be required from the client or the parent, spouse or estate of a person with a developmental disability for the cost of any nonresidential developmental disability program or service operated by or supported by the department. The department by rule shall adopt a fee schedule for financial contributions. The amount of liability of a client or the parent, spouse or estate of a client for nonresidential services and programs or any combination of residential and nonresidential services and programs shall not exceed the amount of the fee prescribed for residential services in subsection C of this section. Counties are not required to contribute to the cost of nonresidential services or programs provided to clients.

H. The amount payable by the person with a developmental disability or the person's parent or estate for residential services shall be fixed by the director in accordance with the fee schedule prescribed in this section.

I. Money paid by a client, parent or guardian shall be paid to the director and deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

J. The department shall provide monthly, or more frequent, billings, as required, to all persons responsible for paying for developmental disability residential or nonresidential services and programs provided directly or indirectly by the department. The department shall require all purchase of care providers to provide current lists of all persons receiving residential or nonresidential services and programs in facilities operated by such providers. The department shall forward reports of delinquent billings for residential and nonresidential services and programs provided by the department or by contractors to the attorney general for collection.

K. The department shall notify each client and the parent or guardian of such client for whom it has determined that contributions are required for the cost of residential or nonresidential services and programs that it reserves the right to terminate developmental disability residential or nonresidential services and programs to a client for nonpayment of fees required to be paid pursuant to this section.

L. Any person affected by an order of the director for payment of costs of care may contest such order and request an administrative hearing pursuant to section 36-563. Any person liable for the costs of care of a client may appeal to the director, pursuant to section 36-563, for a reduction in the amount of payment for such costs of care on the basis of hardship.

M. Notwithstanding subsections C and H of this section, the department may require clients who are receiving residential programs and who receive income or benefits to contribute to the cost of their support and maintenance, subject to the provisions of federal laws and regulations. Such contributions shall not be subject to subsections A and I of this section. The department shall adopt rules that determine the amount and means of payment of such contributions, except that in no event shall the combined contribution made on behalf of a client by a client or the client's parent or estate exceed the actual cost of the residential programs provided. A minimum of thirty per cent of the client's income or benefits shall be retained for the client's personal use.

§ 36-563 Review and appeal; hearing

A. This section governs the review and appeal procedure for decisions relating to the admission, evaluation, assignment to programs and services, care and treatment, discharge from a program or service provided through the department and contributions for residential programs or services provided through the department.

B. Notice of the appeal rights provided pursuant to this section shall be given to all parties to each placement evaluation and to each interested person upon request.

C. The director shall adopt rules to establish procedures for initial, informal administrative review and redetermination by the department of the decisions specified in subsection A of this section. These rules shall specify the manner by which requests for administrative reviews are filed, the person with whom requests are filed, whether and under what circumstances meetings of department representatives and the person filing the request are required to be held to consider requests for review and the time periods governing requests and which govern decisions on these requests. These rules may prescribe forms to be used in initiating requests for administrative review.

D. Further administrative appeals from decisions of the department subject to the procedures specified in subsection C of this section and on other contested cases are governed by title 41, chapter 14, article 3.

E. Services required pursuant to section 36-559, subsection D shall be directed by the courts.

§ 36-564 Guardianship

A. Guardians for clients acting under the provisions of this chapter shall be appointed pursuant to title 14, chapter 5, articles 1, 2, 3 and 6.

B. The department shall request the appointment of a guardian for minor clients receiving services under the provisions of this chapter if no parent is willing and competent to act, and shall request the appointment of a guardian for adult clients receiving services under the provisions of this chapter if it appears that the appointment of a guardian would be in the client's best interests in accordance with section 14-5304.

C. When no person or corporation is qualified and willing to act as guardian for a client, the department shall notify the public fiduciary of the county where the client is receiving services of the need for appointment of a guardian.

D. Guardianship or conservatorship for persons with developmental disabilities shall be utilized only as is necessary to promote the well-being of the individual, be designed to encourage the development of maximum self-reliance and independence in the individual, and shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations.

§ 36-565 Periodic evaluations of persons with developmental disabilities

A. Evaluations of the client's placement shall be made at six-month intervals after a client with a developmental disability has been enrolled in a developmental disabilities program or services operated by or supported by the department. The department, upon such evaluation, shall recommend to the responsible person any change in the developmental disabilities program or service for the person with a developmental disability, in accordance with the results of such evaluations.

B. If an evaluation has been conducted, and it is determined that the client is in a program or service no longer appropriate to his individual needs or that he can be better treated and habilitated in another facility, program or service, the department shall transfer the client to another developmental disabilities program or service or terminate the client from the developmental disabilities program or service pursuant to this chapter or the department may recommend additional services for the client as reported by the evaluation, and enroll the client in such additional services.

C. The client, parent and guardian shall be given thirty days' written notice of the proposed transfer, termination or substantial change of services under this chapter. The client, parent and guardian shall also be informed in writing of the right to an administrative review pursuant to section 36-563 for the purposes of contesting the proposed action. If an administrative review is requested, no transfer, termination or substantial change of services shall be made until the decision resulting from the review is issued.

D. The department shall establish rules and regulations concerning the standards of placement of clients from one program setting to another.

§ 36-566 Request for termination from a state facility, program or service

A. Upon written request from the responsible person for termination of the client from a developmental disabilities program or service operated directly or indirectly by the department, or when it has been determined at an evaluation that the client has the necessary independent living skills as determined by the client's individual program plan, the department shall immediately terminate the client's programs and services. This section does not conflict with section 36-560, subsection J or section 36-551.01, subsection M.

B. The department shall terminate a client from developmental disabilities programs and services operated by or supported by the department at the age of eighteen years unless the responsible person has filed a written application for the continuation of services or programs.

C. Six months prior to the eighteenth birthday of a client, the department shall give written and oral notice, subject to the language and communication requirements of section 36-551.01, subsection P, to the client and the responsible person. This notice shall state that the department is required to terminate the client from developmental disabilities programs and services operated by or supported by the department at the age of eighteen years unless the responsible person has filed a written application for the continuation of services or programs and that a guardian may be required for the client pursuant to section 36-560, subsection E.

§ 36-567 Music therapists; minimum qualifications; definition

A. The division shall require qualifications for persons who provide music therapy services through a contract to persons with developmental disabilities. At a minimum these qualifications shall require current certification by a national certification board for music therapists. The division shall identify the services provided by music therapists who meet these qualifications as music therapy.

B. For the purposes of this section, "music therapy" means implementing habilitation goals through clinical and evidence-based music therapy interventions to accomplish individualized goals and the services that are consistent with the overall individual program plan established by the planning team.

§ 36-568 Group homes; nursing-supported group homes; intermediate care facilities; electronic monitoring; rules; policies; definition

A. A service provider that operates a group home, a nursing-supported group home or an intermediate care facility for persons with intellectual disabilities may install, oversee and monitor electronic monitoring devices in common areas, including hallways, of the group home, nursing-supported group home or intermediate care facility, unless any client or the client's responsible person objects to the installation of the electronic monitoring devices. The service provider may contract with a third party to install, oversee and monitor the electronic monitoring device. The service provider may require cost sharing for the electronic monitoring devices only with the consent of responsible persons.

B. If each client or the client's responsible person agrees to the installation of electronic monitoring devices, a service provider may not prevent the responsible persons from installing and paying for the cost of electronic monitoring devices. The responsible persons who install and pay for the electronic monitoring devices are responsible for the maintenance and repairs of those electronic monitoring devices. The service provider may not access the electronic record of electronic monitoring devices installed pursuant to this subsection unless the responsible persons provide access. The rules adopted pursuant to this section regarding the use of electronic monitoring do not apply if the clients' responsible persons install the electronic monitoring devices pursuant to this subsection.

C. The director shall adopt rules regarding the use of electronic monitoring in group homes, nursing-supported group homes and intermediate care facilities that include, at a minimum:

1. Consent requirements consistent with section 13-3019.

2. Public disclosure that an electronic monitoring device is in use on the property.

3. The maintenance, storage and retention schedule of the electronic record.

4. Who may access the electronic record and under what circumstances.

5. How confidentiality and privacy are maintained.

6. How often the electronic monitoring device is monitored or reviewed by the service provider or the service provider's designee.

7. Ensuring that all staff who have access to the electronic record are properly trained in the facility policies and the protection of client rights.

8. Ensuring that adherence to the facility policies is monitored and the risks or breaches of the facility policies are promptly addressed.

9. Ensuring access to the electronic record, including live recordings and video feed, by the service provider, the client or the client's responsible person, except as prohibited by subsection D, paragraph 1 of this section.

D. The rules adopted pursuant to subsection C of this section may not:

1. Prohibit accessing the electronic record from the service provider, the client or the client's responsible person unless the electronic record contains evidence of a suspected criminal offense.

2. Prohibit cost sharing for the electronic monitoring devices between the service provider and the clients' responsible persons.

E. If a service provider has installed and uses an electronic monitoring device before August 27, 2019, the service provider shall establish policies consistent with rules adopted pursuant to subsection C of this section and submit the policies to the department within ninety days after the rules are adopted.

F. For the purposes of this section, "electronic monitoring device":

1. Means a video surveillance camera or audio device that is installed in a common area, including a hallway, of a group home, nursing-supported group home or intermediate care facility.

2. Does not include an electronic, mechanical or other device that is specifically used for the nonconsensual interception of wire or electronic communications.

§ 36-568.01 Confidentiality of records

A. All information obtained and records prepared in the course of providing any services under this chapter to clients shall be confidential and privileged matter. Such information and records may be disclosed only as authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or pursuant to the following:

1. When the responsible person designates in writing persons to whom records or information may be disclosed.

2. To the extent necessary to make claims on behalf of a client for aid, insurance or medical assistance to which the client may be entitled.

3. Pursuant to a court order.

4. In communications between professional persons in providing services or appropriate referrals.

5. When such a disclosure is necessary to protect against a clear and substantial risk of imminent serious injury.

6. To the superior court when a petition to establish guardianship for the person is filed pursuant to title 14, chapter 5.

7. To other state agencies or bodies for official purposes. In such cases, information or records shall be released without the designation of the name of the client, unless the name is required for the official purposes of state agencies or bodies requesting such information. Such case information received by a state agency or body shall be maintained as confidential unless a consent to release has been given as provided in this section.

8. To a law enforcement agency or a county medical examiner in the performance of official duties, unless the records requested relate to a person who is the subject of a criminal investigation, in which case the records may only be released pursuant to a court order or grand jury subpoena. A person shall maintain information provided to a law enforcement agency or a county medical examiner under this paragraph as confidential unless a consent to release has been given pursuant to this section or pursuant to a court order or grand jury subpoena.

B. The person to whom information has been released pursuant to subsection A of this section is prohibited from using or releasing such information except in the proper performance of the person's duties or as otherwise authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E).

§ 36-568.02 Confidentiality of health information

A. If a health plan, a health care provider licensed or certified pursuant to title 32 or title XIX of the social security act or a health care institution licensed pursuant to chapter 4 of this title has provided or is providing services to a person and has custody or control of that person's medical or behavioral health records, the plan, provider or institution must provide the following to that person's service provider, relative or other person or agency in whose care the person receiving services is currently placed and to the department's employees who are involved in that person's case management:

1. Medical records.

2. Behavioral health records.

3. Information relating to the person's condition and treatment.

4. The person's prescription and nonprescription drugs, medications, durable medical equipment, devices and related information.

B. Notwithstanding subsection A, a competent adult or emancipated minor may restrict the release of the adult's or the minor's medical or behavioral health records, or both, and information that is otherwise allowable under state and federal law.

§ 36-569 Prohibitions; violations; classification

A. Improper, abusive treatment or neglect of a person with a developmental disability is prohibited. For the purposes of this section:

1. "Abusive treatment" means:

(a) Physical abuse by inflicting pain or injury to a client. This includes hitting, kicking, pinching, slapping, pulling hair or any sexual abuses.

(b) Emotional abuse which includes ridiculing or demeaning a client, making derogatory remarks to a client or cursing directed toward a client.

(c) Programmatic abuse which is the use of an aversive stimuli technique that has not been approved as a part of such person's individual program plan and which is not contained in the rules and regulations adopted pursuant to subsection B of section 36-561. This includes isolation or restraint of a client.

2. "Neglect" means:

(a) Intentional lack of attention to physical needs of clients such as toileting, bathing, meals and safety.

(b) Intentional failure to report client health problems or changes in health condition to immediate supervisor or nurse.

(c) Sleeping on duty or abandoning work station.

(d) Intentional failure to carry out a prescribed treatment plan for a client.

B. A person who violates any provision of this section is guilty of a class 2 misdemeanor.

§ 36-570 Arizona training program; annual update; notification to and plan development for affected individuals

A. Beginning on or before November 1, 2016, the department shall submit an annual update for review by the joint legislative budget committee on the department's plans for the Arizona training program and associated group homes. The update shall include a potential timetable for the closure of any facilities, a timeline for the completion of the transition of the residents in those facilities to new residential settings and the estimated fiscal impact. The estimated fiscal impact shall include an estimate of costs necessary to maintain existing service levels for transitioning individuals, to build capacity in the community to support transitioning individuals, to provide enhanced and independent monitoring and oversight of each new placement and to provide protection and advocacy services and medical and behavioral health care support for transitioning individuals.

B. Before the department submits its initial update, the department shall send to each affected individual and the individual's legal guardian a written notice of the department's intention to develop a person-centered service plan for each affected individual to identify potential residential setting and in-home service options that are based on the individual's needs and personal choices. The department shall conduct meetings with all affected individuals and their legal guardians regarding the transition process and shall provide each individual and guardian with a list of potential residential settings and in-home service options. Final decisions regarding residential settings and services shall be based on person-centered plans, individual assessed needs and individual preferences.

§ 36-571 Developmental disabilities fund; disbursement; federal monies

A. The developmental disabilities fund is established consisting of appropriations and other monies for use for developmental disabilities. The department shall receive and disburse monies in the fund upon claims signed by the director or other person in the department designated by the director. Salaries and expenses of the department shall be paid from the fund.

B. The department shall maintain in separate accounts monies for the department or a program, service or facility which are received by gift, grant, bequest or devise, and such monies shall be disbursed for the purposes of and in conformity with the terms of the grant, gift, bequest or devise. Any unexpended balance of such monies shall not revert to the general fund at the end of the fiscal year.

C. Monies for developmental disabilities purposes received from the federal government or an agency thereof shall be kept in a separate account in the developmental disabilities fund. Any unexpended and unencumbered balance of federal funds remaining in the developmental disabilities fund at the end of a fiscal year shall not revert to the general fund.

§ 36-572 Client developmental disability services trust fund; donation account

A. A client with a developmental disability services trust fund is established.

B. The fund consists of donations and the proceeds of the sale or lease of the real property and buildings and improvements on the real property used by the department of economic security for the Arizona training program at Phoenix.

C. The proceeds of the sale or lease shall be deposited, pursuant to sections 35-146 and 35-147, in the client developmental disability services trust fund. The client developmental disability services trust fund is separate and apart from all other funds.

D. Monies in the client developmental disability services trust fund may only be spent for client services provided by the department of economic security and with the approval of the developmental disabilities advisory council. Those clients on the department's developmental disabilities waiting list shall also be included in these services as far as possible.

E. Expenditures from the client developmental disability services trust fund for the previous year shall be reported to the legislature in the course of the department of economic security's annual budget request. The trust fund shall not be a factor to influence or diminish the annual appropriation to the department for client services.

F. The state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

G. Interest or other income derived from the client developmental disability services trust fund shall be used to enhance the services presently available to persons with developmental disabilities and to extend services to persons with developmental disabilities not presently served. Interest or other income derived from the client developmental disability services trust fund shall not be used to supplant general fund appropriations for developmental disabilities programs.

H. Donations directed to the client developmental disability services trust fund shall be deposited into the client developmental disability services trust fund donation account, and shall be used to enhance the services presently available to persons with developmental disabilities and to extend services to persons with developmental disabilities not presently served. Donations received shall not be used to supplant general fund appropriations for developmental disabilities programs. The developmental disabilities advisory council shall oversee and approve expenditures of the donations, pursuant to sections 35-149 and 36-553, for expenditures from the client with developmental disabilities services trust fund donation account.

§ 36-573 Annual report; group home incident reports; contracts

On or before January 1 each year, the department of economic security shall provide an annual report to the chairpersons of the health and human services committees of the senate and the house of representatives, or their successor committees, the directors of the Arizona health care cost containment system and the department of health services and the designated entity conducting the developmental disabilities group home monitoring program pursuant to section 36-595.03 and shall provide a copy of the report to the secretary of state. The report shall include at least the following information:

1. The number of incident reports that were received from group homes in the preceding two years:

(a) Categorized by level of severity.

(b) That resulted in any type of contract sanction.

(c) That involved medication errors. The report shall include the total number of times medication was distributed to clients.

(d) That resulted in changes to a behavioral treatment plan.

(e) That required additional staff training mandated by the division after review of the incident report.

(f) That involved law enforcement.

(g) Aggregated by service provider and individual group home without identifying the specific location or name of the home.

2. With respect to group home contracts and expenditures:

(a) The number of group home contracts by service provider.

(b) For each group home contract, the annual amount the division paid the service provider for the group home services provided.

(c) The cost per client by service provider.

(d) The number of any type of contract sanction broken down by reason for the sanction.

(e) The number of service providers from whom the division recouped payments for group home services in the preceding year for medicaid fraud.

3. The number of medicaid fraud investigations of service providers of group home services.

§ 36-574 Children's autism services; contract

A. Subject to legislative appropriation, in addition to any existing autism services, the department may provide children's autism services through the division of developmental disabilities to serve children who have, or who are at risk of having, autism by entering into a contract with any organization for training and oversight of habilitation workers to utilize intensive behavioral treatment through applied behavioral analysis.

B. Subject to legislative appropriation, in addition to any existing autism services, the department may provide children's autism services to serve children who have, or who are at risk of having, autism by entering into contracts with the following providers for the following services:

1. An established firm that specializes in autism services and related disorders and that employs at least five nationally board certified behavior analysts, one of whom is a state-licensed psychologist. The contract shall be for services that are for children who begin treatment before they reach five years of age and that utilize techniques of discrete trial and natural environment intensive behavioral treatment through applied behavioral analysis.

2. An autism and research firm that is based in this state and that has raised at least fifteen million dollars of private sector monies. The contract shall be for providing toddlers with autism services that utilize intensive early intervention.

§ 36-575 Contracting requirements; art therapy services; definition

A. The division may contract for art therapy services, directly or through a contractor, only with an art therapist who holds an active national board certification in art therapy from the art therapy credentials board or who is a master's level graduate in art therapy under the active supervision of a board-certified art therapist to qualify for national registration or board certification with the art therapy credentials board.

B. Subsection A of this section does not require the division to contract or reimburse for art therapy services.

C. For the purposes of this section, "art therapy" means the interactive use of psychotherapeutic principles and methods from an individual with master's level training in art media, the neurobiological implications of art-making and art-based assessment models to facilitate alternative modes of receptive and expressive communication and to define and implement therapeutic interventions to meet cognitive, developmental, behavioral and emotional needs.

Article 2 Developmental Disabilities

§ 36-581 Definitions

In this article, unless the context otherwise requires:

1. "Developmental disability" means autism, cerebral palsy, epilepsy or a cognitive disability.

2. "Residential facility" means a community residential setting in which persons with developmental disabilities live and that is licensed, operated, supported or supervised by the department.

§ 36-582 Residential facilities; zoning; notice; appeal

A. Unrelated persons living together notwithstanding, a residential facility which serves six or fewer persons shall be considered a residential use of property for the purposes of all local zoning ordinances if such facility provides care on a twenty-four hour per day basis. The residents and operators of such a facility shall be considered a family for the purposes of any law or zoning ordinance which relates to the residential use of property. The limitation of six or fewer persons does not include the operator of a residential facility, members of the operator's family or persons employed as staff, except that the total number of all persons living at the residential facility shall not exceed eight.

B. For the purpose of all local ordinances, a residential facility which serves six or fewer persons shall not be included within the definition of any term which implies that the residential facility differs in any way from a single family residence.

C. The provisions of this section shall not be construed to forbid any city, county or other local public entity from placing restrictions on building heights, setback, lot dimensions and placements of signs of a residential facility which serves six or fewer persons as long as such restrictions are identical to those applied to other single family residences.

D. The provisions of this section shall not be construed to forbid the application to a residential facility of any local ordinance which deals with health and safety, building standards, environmental impact standards, or any other matter within the jurisdiction of a local public entity provided that such ordinance does not distinguish residential facilities which serve six or fewer persons from other single family dwellings and provided further that such ordinance does not distinguish residents of such residential facilities from persons who reside in other single family dwellings.

E. A local ordinance which distinguishes, tends to distinguish, or has the effect of distinguishing residential facilities which serve six or fewer persons from single family dwellings shall be void and of no effect as applied to such facilities.

F. No conditional use permit, zoning variance, or other zoning clearance shall be required of a residential facility which serves six or fewer persons which is not required of a single family residence in the same zone.

G. For the purposes of any contract, deed, or covenant for the transfer of real property executed subsequent to the effective date of this section, a residential facility which serves six or fewer persons shall be considered a residential use of property and a use of property by a single family, notwithstanding any disclaimers to the contrary.

H. No residential facility shall be established within a twelve hundred foot radius of an existing residential facility in a residential area.

I. Prior to the establishment of a residential facility in a residential area, the department shall give at least sixty days written notice to the local government unit affected. The government unit shall have the right to contest the establishment of a residential facility in a residential area by written objection filed with the department within thirty days after receiving notice and may request an administrative hearing pursuant to title 41, chapter 14, article 3.

J. Other residential facilities which serve seven or more persons shall be a permitted use in any zone in which residential buildings of similar size, containing rooms or apartments which are provided on a continuing basis for compensation, are a permitted use. Nothing in this section shall be construed to prohibit any city or county from requiring a conditional use permit in order to maintain a residential facility serving seven or more persons, provided that no conditions shall be imposed on such a facility which are more restrictive than those imposed on other similar dwellings in the same zones.

K. The provisions of this article shall apply only to residential facilities licensed, operated, supported or supervised by the department and the establishment of a particular facility shall not create any zoning rights with respect to any subsequent use of the property involved.

L. This article shall apply only as to those government units which have adopted zoning ordinances which place more restrictions on the establishment of residential facilities than those pertaining to facilities authorized under this article, except that the local government unit to which this article does not otherwise apply may require the same notice and hearing procedures applicable to other zoning matters notwithstanding the provisions of subsection I of this section.

Article 3 Licensing and Monitoring of Community Residential Settings

§ 36-591 Group homes; behavioral-supported group homes; licensing; notification requirements; exception; annual inspection

A. Group homes and behavioral-supported group homes, except for those described in subsection D of this section, shall be licensed for health and safety by the department of health services pursuant to section 36-132.

B. The division shall notify the department of health services of:

1. Service providers that enter into contracts with the division for group homes, behavioral-supported group homes or intermediate care facilities for individuals with intellectual disabilities.

2. Any violation of health and safety standards observed during monitoring visits.

C. The department of health services shall immediately notify the division:

1. When the license of a group home, behavioral-supported group home, nursing-supported group home or intermediate care facility for individuals with intellectual disabilities has been denied, suspended or revoked.

2. Of any other licensing action taken on a group home, behavioral-supported group home, nursing-supported group home or intermediate care facility for individuals with intellectual disabilities by the department of health services.

3. Of substantiated complaints regarding health and safety.

D. The division shall ensure that state-operated residential settings that are owned or leased facilities operated by the division meet the same standards as group homes unless they are required to be:

1. Licensed and certified as intermediate care facilities for individuals with intellectual disabilities pursuant to 42 Code of Federal Regulations part 483, subpart I. An intermediate care facility for individuals with intellectual disabilities that is operated by the division or a private entity is required to be licensed pursuant to chapter 4 of this title and certified pursuant to 42 Code of Federal Regulations part 483, subpart I.

2. Licensed as a nursing-supported group home as required by chapter 4 of this title.

E. The department shall take any action it deems necessary to carry out the duties imposed by this section, including denying the application for licensure and suspending or revoking the group home's or behavioral-supported group home's license.

§ 36-591.01 Behavioral-supported group homes; rules; definitions

A. Beginning July 1, 2024, behavioral-supported group homes that are operated in this state by a service provider and that are under contract with the department of economic security shall be licensed for health and safety by the department of health services pursuant to section 36-132.

B. The director shall adopt any rules necessary regarding behavioral-supported group homes that include at least the following:

1. Ensuring that each client's behavioral treatment plan is developed, integrated, coordinated and monitored by a clinical professional who, at a minimum:

(a) Has at least two years of experience working directly with persons with dual disorders, including psychiatric disorders and developmental disabilities, who engage in behaviors that are disruptive, socially inappropriate or harmful or dangerous to self or others, that interfere with functioning and quality of life or that may cause destruction of property.

(b) Has specialized training in applying behavioral interventions, including applied behavior analysis and positive behavioral supports.

(c) Holds at least a master's degree in any of the following professional categories:

(i) Occupational therapy.

(ii) Physical therapy.

(iii) Psychology.

(iv) Social work.

(v) Speech and language pathology.

(vi) Behavior analysis.

(vii) A similar human service degree such as sociology, special education or rehabilitation counseling.

2. Requiring that the direct care staff in a behavioral-supported group home, at a minimum, have both:

(a) At least one year of experience working directly with persons with dual disorders, including psychiatric disorders and developmental disabilities, who engage in behaviors that are disruptive, socially inappropriate or harmful or dangerous to self or others, that interfere with functioning and quality of life or that may cause destruction of property.

(b) Specialized training in applied behavior analysis and positive behavioral supports.

3. Ensuring that each client has an integrated treatment plan. Each client shall have a functional behavioral assessment completed by a qualified clinical professional who meets the qualifications prescribed in paragraph 1 of this subsection, in consultation with a multidisciplinary team that is composed of all individuals working with the client to include, if appropriate, psychiatric, medical, nursing and nutrition providers, physical, occupational and speech therapists, educational personnel, behavioral health providers, group home direct care staff, home health personnel, day program staff, the client and the client's family or guardian and representatives from the division. The integrated treatment plan shall be reviewed by the entire multidisciplinary team every ninety days to determine if the interventions in the plan are effective.

C. For the purposes of this section:

1. "Behavioral treatment plan" means a document that stipulates goals to treat, manage, control or extinguish predictable and continuing behaviors of the client and that is one component of the client's integrated treatment plan.

2. "Integrated treatment plan" means a document that coordinates all treatment interventions that address the client's physical health and behavioral health needs for the purpose of ensuring seamless, coordinated and comprehensive treatment.

§ 36-592 Adult developmental homes; child developmental homes; licensure requirements; inspections; investigations; third-party contractors; rules; definitions

A. An adult developmental home or child developmental home shall be licensed pursuant to this article.

B. An applicant for an adult developmental home or child developmental home license shall submit an application on a form prescribed by the department.

C. Before issuing or renewing a license to an applicant, the department shall investigate the activities and standards of care within the setting, the financial stability of the applicant, the character and training of the applicant and the adequacy of services. Before issuing or renewing a license, the department shall determine that the applicant is able to meet the emotional, physical, social, developmental, educational, cultural and intellectual needs of clients. The department by rule shall establish standards for licensure. The department shall maintain a system of independent oversight of licensing. The department may contract with third parties to perform services in connection with oversight and licensing. The department may not contract with the same third party for both oversight and licensure under this subsection.

D. Each license shall state in general terms the kind of setting the licensee is authorized to operate and shall prescribe the number, ages and sex of clients.

E. A licensee that holds an adult developmental home or child developmental home license shall:

1. Comply with applicable health, safety and sanitation codes or standards and document its compliance.

2. File reports as prescribed by the department.

3. Allow the department to inspect or monitor its services and facility and the facility's books and records.

4. Comply with rules adopted by the department.

5. Provide for the health, safety and welfare of the licensee's clients.

6. Allow the inspection of the developmental home at reasonable times pursuant to section 36-595.01.

F. A license expires one year from the date of issuance.

G. For each adult developmental home and child developmental home, the department shall:

1. Annually visit and inspect the premises used for the care of children or vulnerable adults for sanitation, fire and other actual and potential hazards. The department shall take any action it deems necessary to carry out the duties imposed by this section, including denying the application for licensure and suspending or revoking the home's license.

2. Monitor the settings for compliance with health, safety, contractual, programmatic and quality assurance standards at least two times per year. The department shall maintain a system of independent oversight of monitoring. The department may enter into a contract with third parties to perform services in connection with oversight and monitoring. The department may not contract with the same third party for both oversight and monitoring under this paragraph.

3. Investigate a complaint within ten working days after receiving notice of the complaint, except that if there is a danger to a client, the department shall conduct the investigation immediately.

4. Notify the parent or guardian of a developmental home resident of any serious incident or complaint at the developmental home involving the client for whom the parent or guardian is responsible.

H. The department shall establish by rule minimum qualifications, responsibilities and oversight for licensing and monitoring adult developmental homes and child developmental homes. The rules regarding minimum qualifications shall address professional judgment, conflicts of interest and training. The rules shall establish the frequency and type of visits for licensing and monitoring, maximum caseload ratios for those performing licensing and monitoring services and a system for appropriate public access to information regarding licensing and monitoring findings.

I. The department may contract with the same third party to perform services in connection with licensing and monitoring an adult developmental home or a child developmental home.

J. For the purposes of this section:

1. "Licensing" includes recruiting and verifying qualifications of applicants.

2. "Monitoring" includes monitoring health, safety, contractual, programmatic and quality assurance standards of an adult developmental home or child developmental home.

§ 36-593 Adult developmental homes; child developmental homes; provisional licenses

A. The department may issue a provisional license to a licensee who is seeking renewal of a regular license and who is temporarily unable to conform to standards of care established by the department if the deficiencies can be remedied within three months.

B. A provisional license is valid for three months and shall not be renewed.

C. The department shall not issue a provisional license if conditions exist that could endanger the health, safety or welfare of clients residing in the setting.

D. If the department determines that the licensee meets the standards established by the department, the department shall issue a regular license. The regular license is valid for one year from the date the department issued the provisional license.

§ 36-593.01 Child developmental certified homes; certification; requirements; renewal; rules; definitions

A. The department may certify as a child developmental certified home a regular foster home as defined in section 8-501 that is licensed pursuant to section 8-509 to care for specific foster children with developmental disabilities.

B. A regular foster home that is applying to be a child developmental certified home shall meet the requirements of this section. The child developmental certification terminates when all children with developmental disabilities leave the home or are adopted by the foster parents.

C. The department of child safety shall restrict the regular foster home license and the department of economic security shall restrict certification under this section to the specific children in the home at the time of certification consistent with the following:

1. The department of child safety may not place any additional foster child in the home after certification unless the department of economic security recertifies the home for the new placement.

2. If the department of economic security recertifies the home for the additional foster child placement, the department of child safety shall amend the restrictions on the regular foster home license and the department of economic security shall amend the restrictions on the certification to include the new placement.

D. Notwithstanding subsection C of this section, the maximum number of foster children who may be placed in a child developmental certified home at any one time may not exceed five foster children, not more than three of whom have developmental disabilities.

E. A regular foster home that is certified as a child developmental certified home under this section shall comply with the training, life safety and monitoring requirements specified by the department of economic security.

F. The department of child safety and the department of economic security shall coordinate and share all of the following information regarding each child developmental certified home:

1. Monitoring information.

2. Unusual incident reports.

3. Department of child safety information, investigations and reports pursuant to section 8-807.

4. Licensing information.

5. Changes in household composition and foster child placements.

6. Any other information necessary for the department of child safety and the department of economic security to coordinate the licensure and certification of the child developmental certified home.

G. The department of economic security shall conduct an initial and subsequent life safety inspection and monitor the child developmental certified home for compliance with the certification requirements under this section. The results of the department of economic security's life safety inspection shall satisfy the life safety inspection requirements of the department of child safety foster home license.

H. The department of child safety shall continue to monitor the child developmental certified home for compliance with regular foster home requirements.

I. The department of child safety shall pay for the cost of care of a foster child, except for a foster child with a developmental disability who is eligible pursuant to chapter 29, article 2 of this title. The department of economic security shall pay for the cost of care of a child with a developmental disability who is eligible pursuant to chapter 29, article 2 of this title.

J. In determining whether to grant a certification under this section, the department of economic security shall consider all of the following:

1. The number of household members, including the foster parent's natural and adopted children.

2. Any special needs or developmental disabilities of household members.

3. Any other consideration determined by the department of economic security in rule that may impact a foster parent's ability to provide care for a child with a developmental disability.

K. If the foster home does not meet the requirements for certification as a child developmental certified home, the home may remain licensed as a regular foster home and continue to serve a foster child with a developmental disability who is already placed in the home if the department of child safety determines it is in the best interests of the foster child.

L. If the foster home does not meet the certification requirements under this section and the department assesses a foster child with a developmental disability who is eligible pursuant to chapter 29, article 2 of this title as needing home and community based services, the foster parent may work with the department to coordinate the provision of the assessed and authorized services.

M. A certification under this section expires annually and is subject to renewal by the department on the annual anniversary date of the regular foster home license.

N. A decision by the department to deny certification of a regular foster home for a specific foster child under this section is not appealable.

O. The department may suspend or revoke a certification under this section pursuant to title 41, chapter 6, article 6 for any one or a combination of the reasons specified in section 36-594.

P. A decision of the department of child safety to deny, suspend or revoke the underlying regular foster home license of a child developmental certified home is appealable pursuant to section 8-506. A denial, suspension or revocation of the regular foster home license is a denial, suspension or revocation of the certification under this section.

Q. The department of child safety and the department of economic security shall adopt rules to implement this section.

R. For the purposes of this section, "foster child", "foster home", "foster parent" and "regular foster home" have the same meanings prescribed in section 8-501.

§ 36-594 Denial, suspension or revocation of license; definition

A. The department may deny, suspend or revoke a license pursuant to title 41, chapter 6, article 6 for any one or a combination of the following:

1. An applicant or licensee violates this chapter, rules adopted pursuant to this chapter, federal or state statutes or city or county ordinances or codes.

2. An applicant or licensee refuses to cooperate in obtaining or providing information the department deems necessary to determine if the department's standards have been met.

3. An employee, applicant, licensee or adult household member of an adult developmental home or child developmental home has been convicted of, has been found by a court to have committed or is reasonably believed to have committed a sex offense, a drug related offense, a theft related offense, a violence related offense, child abuse, child neglect, contributing to the delinquency of a minor or abuse or neglect of a vulnerable adult.

4. An employee, applicant, licensee or adult household member of an adult developmental home or child developmental home is the subject of a proposed substantiated or a substantiated finding of abuse, neglect or exploitation by adult protective services or the department of child safety.

5. An applicant or licensee materially misrepresents or wilfully fails to disclose information to the department relating to the applicant's or licensee's qualifications, experience or performance of responsibilities.

6. The department determines, using criteria established in statute or rule, that an applicant or licensee is unable or unwilling to meet the physical or emotional needs of clients.

7. An applicant, licensee or adult household member of an adult developmental home or child developmental home fails to obtain or maintain a fingerprint clearance card as required by section 36-594.02. The denial, suspension or revocation of a developmental home license due to the failure to obtain or maintain a level I fingerprint clearance card as required by section 36-594.02 is not an appealable agency action.

8. An employee, applicant, licensee, volunteer or adult household member of an adult developmental home or child developmental home is alleged to have abused, neglected or exploited a vulnerable adult and the department of economic security intends to enter, pursuant to section 46-458, a substantiated finding of abuse, neglect or exploitation of a vulnerable adult in the adult protective services registry.

B. For the purposes of this section, "vulnerable adult" has the same meaning prescribed in section 13-3623.

§ 36-594.01 Fingerprinting of contract providers and home and community based service providers

A. The following persons shall be fingerprinted pursuant to section 41-1758.07:

1. A person who is paid or who volunteers to work in a facility or program that is licensed by or that has entered into a contract with the division of developmental disabilities to provide services to persons with developmental disabilities.

2. A person who applies for certification as a home and community based service provider.

B. A person who is required to be fingerprinted pursuant to subsection A, paragraph 1 of this section shall have a valid fingerprint clearance card or shall apply for a fingerprint clearance card before providing services to persons with developmental disabilities.

C. A person who is required to be fingerprinted pursuant to subsection A, paragraph 2 of this section shall not be certified unless the person has a valid fingerprint clearance card or provides to the division of developmental disabilities documentation of the person's application for a fingerprint clearance card.

D. This section does not apply to home and community based service providers who provide attendant care and who are immediate relatives with whom the person with developmental disabilities resides.

E. Persons who are required to be fingerprinted pursuant to subsection A of this section shall certify on forms that are provided by the department whether the person is awaiting trial on or has been convicted of any of the offenses listed in section 41-1758.07, subsections B and C.

F. The division of developmental disabilities in the department of economic security shall notify the department of public safety if the division receives credible evidence that a person who possesses a valid fingerprint clearance card either:

1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B or C.

2. Falsified information on the form required by subsection E of this section.

§ 36-594.02 Fingerprinting of adult developmental home licensees and child developmental home licensees

An applicant, licensee or adult household member of an adult developmental home or child developmental home shall have a valid fingerprint clearance card issued pursuant to section 41-1758.07. The person shall certify on forms that are provided by the department whether the person is awaiting trial on or has been convicted of any of the offenses listed in section 41-1758.07, subsections B and C in this state or similar offenses in another state or jurisdiction.

§ 36-595 Programmatic and contractual monitoring; deemed status

A. The department of economic security shall perform programmatic and contractual monitoring of the services it provides or for which it contracts.

B. The department shall promulgate rules that provide for deemed status. The department shall grant deemed status to a service provider that presents evidence that it maintains a current accreditation from a nationally recognized agency that the department determines maintains accreditation standards that meet the standards established by the department. On determination by the department that there is reasonable cause to believe a service provider is not adhering to the programmatic or contractual requirements of the department, the department and any duly designated employee or agent of the department may enter on and into the premises at any reasonable time for the purpose of determining the state of compliance with the programmatic or contractual requirements of the department. The department may revoke deemed status based on the findings of programmatic and contractual monitoring.

C. The department of health services may deny, suspend or revoke a license for a violation of this article or department rules. At least thirty days before the department denies, revokes or suspends a license it shall mail the applicant or licensee a notice of that person's right to a hearing. The department shall issue this notice by certified mail, return receipt requested. The notice shall state the hearing date and the facts constituting the reasons for the department's action and shall cite the specific statute or rule violated.

D. If the person does not respond to the written notice, the department of health services, at the expiration of the time fixed in the notice, shall take the action prescribed in the notice. If the person, within the period fixed in the notice, conforms the application or the operation of the facility to the applicable statute or rule, the department may grant the license or withdraw the notice of suspension or revocation.

§ 36-595.01 Access to facilities

A group home, nursing-supported group home, adult developmental home or child developmental home shall allow the following to inspect the facility at reasonable times:

1. Parents and guardians of facility residents.

2. Members of the developmental disabilities advisory council.

3. Employees or agents of an Arizona nonprofit advocacy organization that is a state chapter of a national advocacy organization, that has affiliated local chapters within this state and that has historical expertise with monitoring residential settings for persons with intellectual and developmental disabilities.

§ 36-595.02 Investigation of complaints

The department shall receive reports of complaints about services provided by the department and may refer those reports to licensing, contracting or program authorities, or law enforcement.

§ 36-595.03 Developmental disabilities group home monitoring program; clients with complex needs; designated entity duties; expedited referral system; reporting requirements; program review; definition

(Rpld. 1/1/28)

A. The developmental disabilities group home monitoring program is established in the department. Subject to available appropriations, the department shall contract with the entity that has been designated by this state to operate the protection and advocacy system for persons with developmental disabilities in this state pursuant to the developmental disabilities assistance and bill of rights act of 2000 (42 United States Code sections 15041 through 15045) to conduct the program.

B. The designated entity, at a minimum, shall do all of the following beginning January 1, 2026:

1. Monitor in person the group homes that provide services to clients with complex needs to determine, at a minimum, whether:

(a) The client with complex needs receives the services identified in the person-centered service plan of the client with complex needs, including medication monitoring and habilitation treatment, as applicable.

(b) The provision of services identified in the person-centered service plan of the client with complex needs has been effective in addressing the complex needs.

(c) A behavior treatment plan is in place, is compliant with department rules and has had a positive impact on behaviors that interfered with the ability of the client with complex needs to live safely in the community.

2. Use a monitoring tool to assess whether the following criteria were satisfied:

(a) The client with complex needs received the physical health and behavioral health services that the client requires as outlined by the client's health care providers and person-centered service plan, including regular physical activity with modification for the client's physical disability, if any.

(b) The client with complex needs had the client's dietary requirements met, including compliance with all dietary orders from the client's health care providers.

(c) The food provided in the group home met generally accepted dietary standards and guidelines for healthy Americans in accordance with the United States department of agriculture dietary guidelines.

(d) The guardian of the client with complex needs and the client, as applicable, were included in all decisions made regarding the client and informed of any changes to the client's regular activities or daily routine.

(e) Group home direct care staff demonstrated the knowledge and skills required to meet the medical and behavioral health care needs of the client with complex needs as outlined in the client's person-centered service plan and behavior treatment plan, if applicable.

(f) The client with complex needs had access to and used all prescribed adaptive equipment.

(g) Group home direct care staff worked with the behavioral health providers serving the client with complex needs as allowed by the client or client's guardian and as outlined in the client's person-centered service plan and behavior treatment plan, if applicable.

(h) The group home of the client with complex needs complied with applicable incident reporting policies, including documenting and reporting physical interventions and any other emergency measures taken.

3. Complete follow-up monitoring reviews for group homes that were monitored pursuant to paragraph 1 of this subsection and that the designated entity identified as having significant quality of care concerns.

4. Compile and complete both of the following:

(a) Monthly reports to the department detailing the results of all monitoring from the previous month, including identified systemic issues and recommendations for improvement.

(b) A comprehensive annual report of all observations and outcomes during the preceding year.

C. On or before January 1, 2026, the department shall establish an expedited referral system to ensure that copies of all incident reports, quality of care complaints, investigation records and client service requests for each group home monitored pursuant to subsection B, paragraph 1 of this section are forwarded to the designated entity for review and analysis pursuant to this section. If the designated entity identifies concerns during its follow-up monitoring reviews, the information shall be provided to the department, which shall share the allegation with the service provider and the independent oversight committee on persons with developmental disabilities established by section 41-3801.

D. The department shall:

1. Educate service providers on the requirements of the developmental disabilities group home monitoring program and the role of the designated entity.

2. Provide the designated entity with access to all necessary information to complete the monitoring requirements pursuant to subsection B of this section.

3. Provide the designated entity with quarterly written reports responding to the issues identified in the designated entity's monthly reports from the previous quarter, including identifying the actions taken in response to the identified systemic issues and recommendations received from the designated entity.

4. Publish on the department's public website all of the following:

(a) All of the designated entity's monthly and annual reports pursuant to subsection B, paragraph 4 of this section.

(b) All quarterly reports from the department pursuant to paragraph 3 of this subsection.

(c) The monitoring tool and related instructions used by the designated entity to monitor group homes pursuant to this section.

E. On or before January 15, 2026 and each January 15 thereafter, the designated entity shall report to the governor, the president of the senate and the speaker of the house of representatives, and provide a copy of the report to the secretary of state and the independent oversight committee on persons with developmental disabilities established by section 41-3801, regarding the observations and outcomes of the program, including systemic issues that were identified, the quality of services provided to persons with developmental disabilities who have complex needs in this state and any recommendations for service improvements.

F. On or before January 1, 2030, the health and human services committees, or their successor committees, in the senate and the house of representatives shall:

1. Review the reports submitted pursuant to subsection E of this section and the department's responses pursuant to subsection D, paragraph 3 of this section to the designated entity's monthly reports, including observations and outcomes of the program, systemic issues that were identified, the quality of services provided to persons with developmental disabilities who have complex needs in this state, any recommendations for service improvements and actions taken by the department.

2. Determine whether the program should be continued, modified or discontinued.

G. For the purposes of this section, "client with complex needs" or "client" means a client with dual disorders, including psychiatric disorders and developmental disabilities, who engages in behaviors that are disruptive, socially inappropriate or harmful or dangerous to self or others, that interfere with functioning and quality of life or that may cause destruction of property.

Article 4 Third Party Liability Program

§ 36-596 Coordination of benefits; third party payments; definition

A. The department of economic security shall establish a benefit recovery program for state funded services to persons who receive services pursuant to this chapter which are covered in whole or in part by a first party health insurance medical benefit. The department shall coordinate benefits provided by this chapter so that any costs for services payable by the department are costs avoided or recovered from any available provider or first party health insurance medical benefits, subject to the specific scope of benefits of the provider of first party medical insurance benefits. The department may require that health care service providers are responsible for coordination of benefits pursuant to this chapter. The department shall act as a payor of last resort unless this is specifically prohibited by federal law.

B. The director of the department of economic security shall require each individual or his parent or guardian to assign to the department rights that the individual or his parent or guardian has to first party health insurance medical benefits to which the individual is entitled and which relate to the specific services which the person has received or will receive pursuant to this chapter. The state has a right to subrogation against a provider of first party health insurance medical benefits to enforce the assignment of first party health insurance medical benefits for services provided under the provisions of this chapter.

C. The provisions of this section are controlling over the provisions of a first party health insurance medical benefits policy issued after the effective date of this section. If the policy provisions exclude or limit coverage on the basis of a child's eligibility for services under this chapter, the department shall monitor payments from providers of first party health insurance medical benefits which are collected by providers of medical care.

D. The provisions of this section shall apply to a health care services organization subject to the provisions of title 20, chapter 4, article 9 in which a child who is receiving services pursuant to this chapter is enrolled. If a health care services organization's enrolled child requires services under this chapter and if the benefits for the services are contractually available through the health care services organization, the health care services organization may require the enrolled child to receive the services through the health care services organization's contracted provider network up to the coverage limits set forth in the health care services organization's evidence of coverage. If the health care services organization elects not to provide the covered services either directly or through its contracted provider network or is unable to provide the covered services directly or through its contracted provider network and the services are covered benefits as set forth in the health care services organization's evidence of coverage, then the health care services organization shall reimburse the department for the services provided through the department for the enrolled child. The health care services organization shall not be required to reimburse the department for services beyond the coverage limits set forth in the health care services organization's evidence of coverage for the enrolled child. The amount of reimbursement paid by a health care services organization to the department shall be not greater than the level of compensation the health care services organization pays to its contracted provider network. A health care services organization may impose prior authorization, referral and other utilization review requirements in providing or paying for services to an enrolled child under this section.

E. For purposes of this section, "first party health insurance medical benefits" include benefits payable from a hospital, medical, dental and optometric service corporation subject to the provisions of title 20, chapter 4, article 3, a health care services organization subject to the provisions of title 20, chapter 4, article 9, an insurer providing disability insurance subject to the provisions of title 20, chapter 6, article 4, an insurer providing group disability insurance subject to the provisions of title 20, chapter 6, article 5, and any other available first party health insurance medical benefits, but does not include, monies available under a social services block grant or an optional state supplemental payment program if federal monies are available.

§ 36-596.01 Liens; perfection; recording; assignment; notice of lien; compromise

A. The department is entitled to a lien for the charges for hospital or medical care and treatment paid by the department on behalf of an injured person with a developmental disability on any and all claims of liability or indemnity for damages accruing to the person with a developmental disability on account of injuries giving rise to the claims and which necessitated the hospital or medical care and treatment.

B. The department shall perfect a lien by filing a verified written statement in the office of the county recorder in the county in which the injury occurred. This statement shall contain the following information:

1. The name and address of the injured person. The department shall not include this information if department records indicate that the injuries may be the result of a public offense as defined in section 13-105.

2. The name and address of the department.

3. The date of admission to the hospital and the date of discharge.

4. All dates on which medical or long-term care was provided.

5. The amount the department knows to be due for hospitalization, medical care and treatment including the amount for which the department is responsible.

6. The names and addresses of all persons, firms and corporations, including insurance carriers, alleged to be liable for the injuries.

C. The department shall record this information within thirty days after the injured person is discharged from a hospital or otherwise treated for injuries.

D. Within five days of its recording, the department shall mail a copy of the lien to each person, firm or corporation, including an insurance carrier listed in the lien and the person, or the parent or guardian of the person, receiving services pursuant to this article.

E. The recording of the lien is notice to all persons, firms and corporations, including insurance carriers, that are liable for damages whether or not specifically named in the lien.

F. The department may assign the lien in whole or in part to a provider that is responsible for hospital, medical or long-term care services.

G. The director shall establish by rule procedures for a provider to notify the department concerning the delivery of hospital, medical or long-term care services to a person who may have claims for damages.

H. The department may amend a lien to reflect current charges, except the department may not amend a lien after the time of final settlement of a claim pursuant to subsection A if the department is given notice of an impending settlement at least five days excluding Saturdays and holidays before the final settlement.

I. A public entity shall compromise a claim it has pursuant to section 11-291, 12-962, 36-596, 36-2903, 36-2935, 36-2956 or this section if, after considering the following factors the public entity determines that the compromise provides a settlement of the claim that is fair and equitable:

1. The nature and extent of the person's injury or illness.

2. The sufficiency of insurance or other sources of indemnity available to the person.

3. Any other factor relevant for a fair and equitable settlement under the circumstances of a particular case.

Article 5 Family Support

§ 36-596.51 Definitions

In this article, unless the context otherwise requires:

1. "Assistant director" means the assistant director of the division of developmental disabilities.

2. "Community supports" means community based programs designed to promote independence, productivity and integration for individuals with developmental disabilities and their families.

3. "District" means an administrative area of this state designated by the division of developmental disabilities in the department of economic security.

4. "Family" means a group that lives together and that consists of at least one person with a developmental disability and that person's parent.

5. "Family support" means services, supports and other assistance that are provided to families with members who have a developmental disability and that are designed to:

(a) Strengthen the family's role as a primary care giver.

(b) Prevent inappropriate out of home placement.

(c) Maintain family unity.

(d) Reunite families with members who have been placed out of the home.

(e) Include respite care, assistive technology, appropriate personal assistance services, parent training and counseling, vehicular and home modifications and assistance with extraordinary expenses associated with the needs of the person with a developmental disability.

6. "Family support subsidy" means a grant that is provided to a family on behalf of a family member with a developmental disability or directly to an individual with a developmental disability for the purchase of services or necessities required to keep the family member or the individual in the family home or their own home or noninstitutional setting.

7. "Family support voucher" means an authorization of payment for services.

8. "Independent" or "independence" means the extent to which individuals with developmental disabilities and their families exert control and choice over their own lives.

9. "Individual program plan team" means a group of people interested in or providing individual support to:

(a) An individual with a developmental disability. If that person is under eighteen years of age or has a legal guardian, the team shall first have the permission of the parent or guardian.

(b) A parent or guardian.

(c) Family members, health professionals and other individuals that a parent or guardian invites to participate in the individual program plan.

(d) A representative of the division or the district providing the program.

(e) The provider of services to a person with a developmental disability or a representative of that provider.

(f) The case manager.

10. "Individual support" means services, supports and other assistance that enables a person with a developmental disability to be independent, productive and integrated in that person's community and that is designed to:

(a) Enable the person to control that person's environment and have the most independent life possible.

(b) Prevent placement in a more restrictive living arrangement than is necessary.

(c) Enable the person to live, learn, work and enjoy life in the community.

(d) Include appropriate personal assistance services, assistive technology, vehicular and home modification, support at work and transportation.

11. "Integration" means that persons with developmental disabilities and their families:

(a) Participate in the same community activities and employment as those persons without disabilities.

(b) Use the same community resources as those persons without disabilities.

(c) Reside in homes that are part of the community.

(d) Have contact with persons without developmental disabilities.

12. "Parent" includes a guardian, a legal custodian and a person acting in the place of a parent. Parent does not include a paid care provider.

13. "Productivity" means engagement in income producing work that is measured through improvements in income level, employment status or job advancement or engagement in work that contributes to a household or community.

14. "Therapeutic services" means occupational, physical, speech and language, respiratory, vision and other therapies to increase, maintain or improve the functional capacities of individuals with disabilities.

§ 36-596.52 Family support program; administration

A. The division shall administer a family support program subject to funding appropriated by the legislature or otherwise available for this purpose. The division shall adopt rules to implement this article.

B. The division's annual budget request shall include a specific request for family support program funding.

C. The division shall develop a family support plan to:

1. Assess needs, establish goals and set priorities for the provision of family support services.

2. Provide a coordinated delivery of family support services.

3. Develop comprehensive services, resources and programs for families.

4. Review and comment on plans and services that are provided by state agencies and that affect the family support plan.

D. The developmental disabilities advisory council shall review the plan prescribed under subsection C.

E. The division may coordinate and assist in coordinating efforts by public and private agencies to provide family support services. These efforts include:

1. Identifying services provided by different agencies to eliminate duplication.

2. Designing areas of responsibility for services, identifying gaps in services and assigning responsibility for providing missing services.

3. Coordinating planning and implementation among agencies and consumer groups to ensure that interagency programs receive full support from all affected persons and agencies.

F. The division shall work with families to develop criteria to be used as a standard of services based on need and used during the individual program plan process to determine family eligibility for family support services. To do this the division may:

1. Use existing districts as the single entry point for families seeking services from the division and the family support program.

2. Use existing public and private local agencies, facilities and resources, including parent advisory groups, to carry out the daily operations of the family support program.

3. Provide grants to or contract with agencies, grantees and vendors to provide family support services, subject to funding appropriated by the legislature or otherwise available for this purpose, especially in regions of this state that are inadequately served.

4. Provide technical assistance to agencies and consumer groups that are developing or offering family support services, resources and programs.

5. Use available state, regional and local media to support outreach to families.

6. Expand the hearing process in the department to include reviewing family support program eligibility decisions.

7. Provide funding and other resources for technical assistance, research, education, preservice and in-service training and other staff development relating to family support services.

G. The division may:

1. Act as an advocate for families with members with developmental disabilities.

2. Advocate for family support services before the legislature, the public, the department and the governor.

3. Advise the governor, the legislature and all concerned state and local agencies on issues affecting individuals with developmental disabilities and their families.

4. Direct complaints by consumers of family support services to the proper agencies for resolution, review actions to resolve these complaints and take action to enforce a resolution of complaints if necessary.

H. The division shall annually evaluate the family support program and collect the following information and make that information available to the public on request and on the department's web site:

1. Information on the impact of the family support program on families who participate as well as those who do not participate or who participated before becoming ineligible.

2. Sample assessments of families receiving family support services, including assessments of the adequacy of the services, the consumer satisfaction with those services and the fiscal and programmatic impact of adding services not currently available.

3. Statistics on the actual number of appeals, the outcome of those appeals and changes in the program made as a result of the appeals.

4. A summary of evaluation reports submitted annually by all designated regional and local agencies.

5. Information on efforts to reach families who may be eligible for the family support program.

6. Information on any individuals discharged from institutions that can be attributed to the alternative services offered by the family support program.

7. Information on programs to prevent further disability or to ameliorate the impact of disabilities on families that can be attributed to the family support program.

8. Information on efforts to develop new community based services for families.

9. Recommendations for additional programs and services to further serve families.

10. Steps taken by the family support program to increase coordination with other agencies.

11. Administrative costs associated with the family support program.

§ 36-596.53 Payor of last resort

A. The division and all districts and local agencies that operate family support programs or administer programs authorized under the social security act shall assist families in obtaining and ensuring families use all available sources of monies before using family support subsidies or family support voucher monies.

B. The division may use monies appropriated to the division for family support services if this is necessary to prevent a delay in the timely provision of services to an eligible person or the person's family. The division shall seek whenever possible to obtain reimbursement for monies expended for this purpose from the agency or entity that has the ultimate responsibility for payment.

C. The division may apply for and receive federal grants, matching monies and private grants to help fund family support services.

§ 36-596.54 Family support vouchers and subsidies

A. The division may provide family support vouchers for services provided pursuant to chapter 29, article 2 of this title if those services are provided by certified providers, are included in the individual program plan and are approved for title XIX funding. The division by rule shall prescribe certification standards. These certification standards shall be approved by the director of the Arizona health care cost containment system pursuant to chapter 29, article 2 of this title.

B. The division may provide a family support voucher system with different eligibility guidelines and service coverage from the vouchers which may be offered pursuant to subsection A.

C. A family may decide how to use a family support subsidy if the use is consistent with the individual program plan and the family support subsidy program guidelines.

D. Family support payments are not transferable and are not subject to sale or garnishment.

§ 36-596.55 Community based services

A. The family support program may assist with other community based resources in developing community based services by establishing a program of grants to districts and local agencies and providers, both public and private, and to consumer groups to establish or develop family support services. The family support program may also contract directly with public and private providers and consumer groups to establish community based services programs if they are not readily available.

B. The family support program may provide technical assistance to public and private agencies and to consumer groups that are developing or offering family support services.

§ 36-596.56 Eligibility; program plans; burial arrangements

A. A person who is eligible for services pursuant to section 36-559 is also eligible to receive services under this article if that person is recommended to receive services under the individual program plan. A person shall also meet any applicable eligibility requirements or guidelines in order to receive family support services funded in whole or in part with federal monies.

B. The division shall review the plan to determine if the person is eligible for services and if monies are available. This review shall take place at the district level.

C. To be eligible for services, a family shall:

1. Express and demonstrate a willingness to keep the family member with a disability at home or in the community.

2. Agree to cooperate with the providers of services in developing, implementing and evaluating the family support services that are part of the individual program plan.

3. Demonstrate a need for services.

4. Undergo an evaluation by the division of the family's financial resources, including monies from other state and federal programs that are available to the family.

5. Comply with other factors the division determines are necessary for eligibility.

D. An annual individual program plan team shall determine what services shall be provided to an individual with a developmental disability or a family on behalf of a family member with a developmental disability and which shall be specified in the plan itself. The case manager shall coordinate the plan. The plan shall include the following:

1. A finding of the family's need for services and an indication of the family's strengths and resources that the plan may supplement or support to meet the family's needs.

2. Notice of the specific programs, subsidies and services for which the family is eligible.

3. A clear explanation of the way in which the programs, subsidies and services shall be provided.

4. A statement of the specific goals of the plan and the methods to be used to achieve these goals.

5. A timetable for achieving goals.

6. Notice of the annual determination of continued eligibility and of reportable events that will trigger an earlier eligibility determination.

E. To ensure continued eligibility, a family shall promptly report any changes in the family, the need for services, income and all other circumstances that relate to eligibility.

F. The individual program plan team shall annually review the eligibility of each family or individual in the family support program. The plan shall be distributed to the team not more than twenty days after the annual review meeting. This review shall include:

1. An eligibility review of the needs of the family or the individual.

2. A report prepared by the family and the case manager on whether the needs and goals of the individual program plan are being met.

3. A report of the circumstances that might trigger an earlier review of eligibility.

4. A review of the family's financial resources.

G. A family may request a review described in subsection F of this section at any time.

H. The client's individual program plan shall include provisions relating to the client's burial arrangements, including a choice of cremation or burial and instructions regarding religious services, if any. Monies set aside for this purpose are not excluded from the income eligibility requirements of section 36-2934 and title XIX of the social security act. Monies set aside for this purpose shall be excluded or counted as a resource for eligibility purposes in accordance with section 1613 of the social security act. The costs of burial under this subsection are not the financial responsibility of this state.

§ 36-596.57 Admission; legislative appropriation; exception

Admission into any developmental disabilities family support program or service which is operated or supported by the department shall be subject to the availability of space in the program or service and shall be subject to legislative appropriation and other available funding unless admission or coverage is required pursuant to chapter 29, article 2 of this title.

Chapter 6 Public Health Control

Article 1 Health Menaces

§ 36-601 Public nuisances dangerous to public health

A. The following conditions are specifically declared public nuisances dangerous to the public health:

1. Any condition or place in populous areas that constitutes a breeding place for flies, rodents, mosquitoes and other insects that are capable of carrying and transmitting disease-causing organisms to any person or persons or any condition or place that constitutes a feral colony of honeybees that is not currently maintained by a beekeeper and that poses a health or safety hazard to the public.

2. Any spoiled or contaminated food or drink intended for human consumption.

3. Any restaurant, food market, bakery or other place of business or any vehicle where food is prepared, packed, processed, stored, transported, sold or served to the public that is not constantly maintained in a sanitary condition.

4. Any place, condition or building that is controlled or operated by any governmental agency and that is not maintained in a sanitary condition.

5. All sewage, human excreta, wastewater, garbage or other organic wastes deposited, stored, discharged or exposed so as to be a potential instrument or medium in the transmission of disease to or between any person or persons.

6. Any vehicle or container that is used in the transportation of garbage, human excreta or other organic material and that is defective and allows leakage or spillage of contents.

7. The presence of ectoparasites such as bedbugs, lice, mites and others in any place where sleeping accommodations are offered to the public.

8. The maintenance of any overflowing septic tank or cesspool, the contents of which may be accessible to flies.

9. The pollution or contamination of any domestic waters.

10. The use of the so-called common drinking cup used for drinking purposes by more than one person. This paragraph does not apply to receptacles properly washed and sanitized after each service.

11. The presence of common towels for use of the public in any public or semipublic place unless properly washed and sanitized following each use.

12. Buildings or any parts of buildings that are in a filthy condition and that may endanger the health of persons living in the vicinity.

13. Spitting or urinating on sidewalks, or floors or walls of a public building or buildings used for public assemblage, or a building used for manufacturing or industrial purposes, or on the floors or platforms or any part of a railroad or other public conveyance.

14. The use of the contents of privies, cesspools or septic tanks or the use of sewage or sewage plant effluents for fertilizing or irrigation purposes for crops or gardens except by specific approval of the department of health services or the department of environmental quality.

15. The maintenance of public assemblage or places of assemblage without providing adequate sanitary facilities. Open surface privies are adequate sanitary facilities if they are outside populous areas and meet reasonable health requirements.

16. Hotels, tourist courts and other lodging establishments that are not kept in a clean and sanitary condition or for which suitable and adequate toilet facilities are not provided.

17. The storage, collection, transportation, disposal and reclamation of garbage, trash, rubbish, manure and other objectionable wastes other than as provided and authorized by law.

18. Water, other than that used by irrigation, industrial or similar systems for nonpotable purposes, that is sold to the public, distributed to the public or used in production, processing, storing, handling, servicing or transportation of food and drink and that is unwholesome, poisonous or contains deleterious or foreign substances or filth or disease causing substances or organisms.

19. The emission of mercaptan in a concentration level that causes endangerment to the health or safety of any considerable number of persons of a neighborhood or community.

20. The operation of an environmental laboratory in violation of chapter 4.3, article 1 of this title.

B. If the director has reasonable cause to believe from information furnished to the director or from investigation made by the director that any person is maintaining a nuisance or engaging in any practice contrary to the health laws of this state, the director shall promptly serve on that person by certified mail a cease and desist order requiring the person, on receipt of the order, promptly to cease and desist from that act. Within fifteen days after receipt of the order, the person to whom it is directed may request the director to hold a hearing. The director, as soon as practicable, shall hold a hearing, and if the director determines the order is reasonable and just and that the practice engaged in is contrary to the health laws of this state, the director shall order the person to comply with the cease and desist order.

C. If a person fails or refuses to comply with the order of the director, or if a person to whom the order is directed does not request a hearing and fails or refuses to comply with the cease and desist order served by mail under subsection B, the director may file an action in the superior court in the county in which a violation occurred, restraining and enjoining the person from engaging in further acts. The court shall proceed as in other actions for injunctions.

D. Notwithstanding subsection A, paragraph 19, the emission of mercaptan as a by-product of a pesticide is not a nuisance if applied according to state and federal restrictions.

E. Notwithstanding subsection A, paragraph 3, a restaurant that uses sawdust on the floors of its dining areas is not in violation of this section or local health department sanitary rules if the restaurant replaces the sawdust each day with clean sawdust and complies with applicable standards for fire safety.

§ 36-601.01 Smoke-free Arizona act

(Caution: 1998 Prop. 105 applies.)

A. Definitions. The following words and phrases, whenever used in this section, shall be construed as defined in this section:

1. "Employee" means any person who performs any service on a full-time, part-time or contracted basis whether or not the person is denominated an employee, independent contractor or otherwise and whether or not the person is compensated or is a volunteer.

2. "Employer" means a person, business, partnership, association, the state of Arizona and its political subdivisions, corporations, including a municipal corporations, trust, or non-profit entity that employs the services of one or more individual persons.

3. "Enclosed area" means all space between a floor and ceiling that is enclosed on all sides by permanent or temporary walls or windows (exclusive of doorways), which extend from the floor to the ceiling. Enclosed area includes a reasonable distance from any entrances, windows and ventilation systems so that persons entering or leaving the building or facility shall not be subjected to breathing tobacco smoke and so that tobacco smoke does not enter the building or facility through entrances, windows, ventilation systems or any other means.

4. "Health care facility" means any enclosed area utilized by any health care institution licensed according to title 36 chapter 4, chapter 6 article 7, or chapter 17, or any health care professional licensed according to title 32 chapters 7, 8, 11, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 21, 25, 28, 29, 33, 34, 35, 39, 41, or 42.

5. "Person" means an individual, partnership, corporation, limited liability company, entity, association, governmental subdivision or unit of a governmental subdivision, or a public or private organization of any character.

6. "Physically separated" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passageway) and independently ventilated from smoke-free areas, so that air within permitted smoking areas does not drift or get vented into smoke-free areas.

7. "Places of employment" means an enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including office buildings, work areas, auditoriums, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, stairs, elevators, health care facilities, private offices and vehicles owned and operated by the employer during working hours when the vehicle is occupied by more than one person. A private residence is not a "place of employment" unless it is used as a child care, adult day care, or health care facility.

8. "Veteran and fraternal clubs" means a club as defined in A.R.S. 4-101(7)(a)(b) or (c).

9. "Public place" means any enclosed area to which the public is invited or in which the public is permitted, including airports, banks, bars, common areas of apartment buildings, condominiums or other multifamily housing facilities, educational facilities, entertainment facilities or venues, health care facilities, hotel and motel common areas, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports facilities, theaters, and waiting rooms. A private residence is not a "public place" unless it is used as a child care, adult day care, or health care facility.

10. "Retail tobacco store" means a retail store that derives the majority of its sales from tobacco products and accessories.

11. "Smoking" means inhaling, exhaling, burning, or carrying or possessing any lighted tobacco product, including cigars, cigarettes, pipe tobacco and any other lighted tobacco product.

12. "Sports facilities" means enclosed areas of sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, billiard halls, bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sporting events.

B. Smoking is prohibited in all public places and places of employment within the state of Arizona, except the following:

1. Private residences, except when used as a licensed child care, adult day care, or health care facility.

2. Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that not more than fifty percent of rooms rented to guests in a hotel or motel are so designated.

3. Retail tobacco stores that are physically separated so that smoke from retail tobacco stores does not infiltrate into areas where smoking is prohibited under the provisions of this section.

4. Veterans and fraternal clubs when they are not open to the general public.

5. Smoking when associated with a religious ceremony practiced pursuant to the American Indian religious freedom act of 1978.

6. Outdoor patios so long as tobacco smoke does not enter areas where smoking is prohibited through entrances, windows, ventilation systems, or other means.

7. A theatrical performance upon a stage or in the course of a film or television production if the smoking is part of the performance or production.

C. The prohibition on smoking in places of employment shall be communicated to all existing employees by the effective date of this section and to all prospective employees upon their application for employment.

D. Notwithstanding any other provision of this section, an owner, operator, manager, or other person or entity in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place.

E. Posting of signs and ashtray removal.

1. "No smoking" signs or the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted by the owner, operator, manager, or other person in control of that place identifying where smoking is prohibited by this section and where complaints regarding violations may be registered.

2. Every public place and place of employment where smoking is prohibited by this section shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.

3. All ashtrays shall be removed from any area where smoking is prohibited by this section by the owner, operator, manager, or other person having control of the area.

F. No employer may discharge or retaliate against an employee because that employee exercises any rights afforded by this section or reports or attempts to prosecute a violation of this section.

G. The law shall be implemented and enforced by the department of health services as follows:

1. The department shall design and implement a program, including the establishment of an internet website, to educate the public regarding the provisions of this law.

2. The department shall inform persons who own, manage, operate or otherwise control a public place or place of employment of the requirements of this law and how to comply with its provisions including making information available and providing a toll-free telephone number and e-mail address to be used exclusively for this purpose.

3. Any member of the public may report a violation of this law to the department. The department shall accept oral and written reports of violation and establish an e-mail address(es) and toll-free telephone number(s) to be used exclusively for the purpose of reporting violations. A person shall not be required to disclose the person's identity when reporting a violation.

4. If the department has reason to believe a violation of this law exists, the department may enter upon and into any public place or place of employment for purposes of determining compliance with this law. However, the department may inspect public places where food or alcohol is served at any time to determine compliance with this law.

5. If the department determines that a violation of this law exists at a public place or place of employment, the department shall issue a notice of violation to the person who owns, manages, operates or otherwise controls the public place or place of employment. The notice shall include the nature of each violation, date and time each violation occurred, and department contact person.

6. The department shall impose a civil penalty on the person in an amount of not less than $100, but not more than $500 for each violation. In considering whether to impose a fine and the amount of the fine, the department may consider whether the person has been cited previously and what efforts the person has taken to prevent or cure the violation including reporting the violation or taking action under subsection J. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. A person may appeal the assessment of a civil penalty by requesting a hearing. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days on which the violation has been documented by the department.

7. If a civil penalty imposed by this section is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred.

8. The department may apply for injunctive relief to enforce these provisions in the superior court in the county in which the violation occurred. The court may impose appropriate injunctive relief and impose a penalty of not less than $100 but not more than $500 for each violation. Each day that a violation occurs constitutes a separate violation. If the superior court finds the violations are willful or evidence a pattern of noncompliance, the court may impose a fine up to $5000 per violation.

9. The department may contract with a third party to determine compliance with this law.

10. The department may delegate to a state agency or political subdivision of this state any functions, powers or duties under this law.

11. The director of the department may promulgate rules for the implementation and enforcement of this law. The department is exempt from the rulemaking procedures in A.R.S. § title 41, chapter 6 except the department shall publish draft rules and thereafter take public input including hold at least two public hearings prior to implementing the rules. This exemption expires May 1, 2007.

H. Beginning on June 1, 2008 and every other June 1 thereafter, the director of the Arizona department of health services shall issue a report analyzing its activities to enforce this law, including the activities of all of the state agencies or political subdivisions to whom the department has delegated responsibility under this law.

I. An owner, manager, operator or employee of place regulated by this law shall inform any person who is smoking in violation of this law that smoking is illegal and request that the illegal smoking stop immediately.

J. This law does not create any new private right of action nor does it extinguish any existing common law causes of action.

K. A person who smokes where smoking is prohibited is guilty of a petty offense with a fine of not less than fifty dollars and not more than three hundred dollars.

L. Smoke-free Arizona fund

1. The smoke-free Arizona fund is established consisting of all revenues deposited in the fund pursuant to §42-3251.02 and interest earned on those monies. The Arizona department of health services shall administer the fund. On notice from the department, the state treasurer shall invest and divest monies in the fund as provided by §35-313 and monies earned from investment shall be credited to the fund.

2. All money in the smoke-free Arizona fund shall be used to enforce the provisions of this section provided however that if there is money remaining after the department has met its enforcement obligations, that remaining money shall be deposited in the tobacco products tax fund and used for education programs to reduce and eliminate tobacco use and for no other purpose.

3. Monies in this fund are continuously appropriated, are not subject to further approval, do not revert to the general fund and are exempt from the provisions of §36-190 relating to the lapsing of appropriations.

M. This section does not prevent a political subdivision of the state from adopting ordinances or regulations that are more restrictive than this section nor does this section repeal any existing ordinance or regulation that is more restrictive than this section.

N. Tribal sovereignty —this section has no application on Indian reservations as defined in ARS 42-3301(2).

§ 36-602 Abatement of nuisances, sources of filth and causes of sickness; civil penalty; property assessment; procedure

A. Notwithstanding any other provision of this title, when a nuisance, source of filth or cause of sickness exists on private property, the county board of health, the local health department, the county environmental department or the public health service district shall order the owner or occupant to remove it within twenty-four hours at the expense of the owner or occupant. The order may be delivered to the owner or occupant personally, or left at the owner or occupant's usual place of abode or served on the owner or occupant in the same manner as provided for service of process under the Arizona rules of civil procedure. If the order is not complied with, the board or department may impose a civil penalty pursuant to section 36-183.04 and shall cause the nuisance, source of filth or cause of sickness to be removed, and expenses of removal shall be paid by the owner, occupant or other person who caused the nuisance, source of filth or cause of sickness.

B. A city or county may prescribe by sanitary ordinance or regulation a procedure for making the actual cost of this removal or abatement, including the actual costs of any additional inspection and other incidental costs in connection with the removal or abatement, an assessment on the lots and tracts of land on which the nuisance, source of filth or cause of sickness was abated or removed, subject to the following:

1. Any such ordinance or regulation shall include a provision for appeal of the assessment to the governing body or the board of supervisors or its designee.

2. The assessment, from the date of its recording in the office of the county recorder in the county where the lot or tract of land is located, is a lien on the lot or tract of land until paid.

3. Any assessment recorded is prior and superior to all other liens, obligations or other encumbrances, except liens for general taxes and prior recorded mortgages.

4. The city or county may bring an action to enforce the lien in the superior court in the county in which the property is located at any time after the recording of the assessment, but failure to enforce the lien by this action does not affect its validity. The recorded assessment is prima facie evidence of the truth of all matters recited in the assessment and of the regularity of all proceedings before the recording of the assessment.

5. A prior assessment for the purposes provided in this section is not a bar to a subsequent assessment or assessments for these purposes, and any number of liens on the same lot or tract of land may be enforced in the same action.

6. An assessment or lien recorded pursuant to this section does not limit, restrict or otherwise affect the authority of a city or county to undertake any additional enforcement action that is authorized by law, including applicable ordinances or regulations.

7. The ordinance or regulation shall provide notice to all lienholders.

§ 36-603 Right to enter premises for inspection or abatement

When a county board of health or a local health department deems it necessary to enter a building or structure within its jurisdiction for the purpose of examining, destroying, removing or preventing a nuisance, source of filth or cause of sickness and is refused entrance, any member of the board or officer of the department may make a complaint under oath to a justice of the peace. The justice of the peace shall issue a warrant directing the sheriff or other peace officer accompanied by and under the direction of at least one member of the board or department to destroy, remove or prevent, between the hours of sunrise and sunset, such nuisance, source of filth or cause of sickness.

§ 36-604 Health menace near military encampments; classification

When a condition exists in an area adjacent to a military encampment outside the corporate limits of a city or town which, in the opinion of the commander of the encampment concurred in by the department of health services, constitutes a health menace, the person responsible for the condition shall, upon an order from the department, abate it. Failure to do so within twenty-four hours after service of the order for abatement is a class 2 misdemeanor.

§ 36-605 Common towel or drinking cup provided in public place; classification

A person who knowingly provides or furnishes a common towel or a common drinking cup which may be used by more than one person in a barber shop, public wash house, public lavatory or any other public place, is guilty of a petty offense.

§ 36-606 Pesticide illness; medical education; reports

A. The director of the department of health services shall develop and implement, in cooperation with rural health clinics, county health departments, state and local medical associations, poison control centers and other appropriate health care professionals, a system for reporting and preventing pesticide provoked illnesses. This program shall include:

1. Medical education programs to alert health care professionals to the symptoms, diagnosis, treatment and reporting of pesticide provoked illnesses.

2. A statewide reporting network, which shall:

(a) Require health care professionals and poison control centers to file incident reports of an illness that they reasonably believe, based on professional judgment, to be caused by or related to documented exposure to a pesticide.

(b) Catalogue and retrieve data regarding pesticide poisoning for use in worker and public health education programs to prevent pesticide poisoning.

B. The health care professional or poison control center required to file an incident report required pursuant to subsection A, paragraph 2, subdivision (a) of this section shall specifically indicate in the incident report the reason for believing that the illness is caused by or related to documented exposure to a pesticide and shall specify if the illness is caused by the documented exposure or is related to the documented exposure. All incident reports shall be filed with the director. The director shall provide to the Arizona department of agriculture all records, reports and information of all illnesses resulting from documented exposure to agriculture pesticides and structural pesticides.

Article 2 Contagious Diseases

§ 36-621 Report of contagious diseases

A person who learns that a contagious, epidemic or infectious disease exists shall immediately make a written report of the particulars to the appropriate board of health or health department. The report shall include names and residences of persons afflicted with the disease. If the person reporting is the attending physician he shall report on the condition of the person afflicted and the status of the disease at least twice each week.

§ 36-622 Report by hotel keepers of contagious diseases

The keeper of a private house, boarding house, lodging house, inn or hotel shall report in writing to the local board of health or health department within whose jurisdiction such occurs, each case of contagious, infectious or epidemic disease in his establishment. Such report shall be made within twenty-four hours after existence of the disease is known and shall include the name of persons afflicted and the nature of the disease.

§ 36-623 Report by physician of death from contagious disease

Physicians shall report in writing to the local board of health or health department the death within its jurisdiction of patients dying from contagious, infectious or epidemic diseases. The report shall be made within twenty-four hours after death, and shall include the specific name and character of the disease.

§ 36-624 Quarantine and sanitary measures to prevent contagion

When a county health department or public health services district is apprised that infectious or contagious disease exists within its jurisdiction, it shall immediately make an investigation. If the investigation discloses that the disease does exist, the county health department or public health services district may adopt quarantine and sanitary measures consistent with department rules and sections 36-788 and 36-789 to prevent the spread of the disease. The county health department or public health services district shall immediately notify the department of health services of the existence and nature of the disease and measures taken concerning it.

§ 36-626 Disinfection or destruction of contaminated bedding and other articles

A. A local board or health department may cause the destruction of beds, bedding, clothing, carpets or other articles which have been exposed to contamination from infectious or contagious disease, and allow reasonable compensation for destroyed articles.

B. A local board or health department may provide a place with necessary apparatus and attendants for disinfection of contaminated articles and cause them to be disinfected, and may provide transportation for the conveyance of such articles or persons afflicted with contagious or infectious disease.

§ 36-627 Temporary hospitals for persons with contagious disease

A local board of health or health department may provide a temporary hospital or place of reception for persons with infectious or contagious diseases. Hospitals or other places in which infectious or contagious disease exists shall be under the control and subject to regulations of the local board of health or health department while such disease exists. During such periods of hospital control, inmates shall obey the regulations and instructions of the local board or department.

§ 36-628 Provision for care of persons afflicted with contagious disease; expenses

A. Local boards or health departments may employ physicians and other persons and provide such necessaries of life as they deem necessary for care of persons afflicted with contagious or infectious diseases.

B. Expenses incurred in carrying out the provisions of this article shall be audited and allowed by the board incurring them and be a charge against the county or city for which the board or department was acting.

C. Expenses incurred for the care, medical attendance or support of a sick person shall also be a charge upon such person and upon the person liable for his support if able to pay, and may be collected by the county or city incurring the expense. If a physician is called by a local board or department to attend a person infected with a contagious or infectious disease, it shall be a city or county charge.

§ 36-630 Violation; classification

A person who knowingly secretes himself or others known to have a contagious or infectious disease, or a member of a board of health or an officer of a local health department who with criminal negligence fails or refuses to perform a duty, or a person who violates a provision of this article or a rule, regulation, order, instruction or measure adopted and given the required publicity by a board of health is guilty of a class 3 misdemeanor unless another classification is specifically prescribed in this article.

§ 36-631 Person with contagious or infectious disease exposing himself to public; classification; exception

A person who knowingly exposes himself or another afflicted with a contagious or infectious disease in a public place or thoroughfare, except in the necessary removal of such person in a manner least dangerous to the public health, is guilty of a class 2 misdemeanor.

Article 3 Industrial Sanitation

§ 36-641 Lavatories, change and bath facilities required; obscene pictures or writing prohibited; violation; classification

A. For the maintenance of public health, proper bathrooms, wash rooms, toilets and a heated change room immediately contiguous to the works shall be provided by every person, whether owner or operator, engaged in the treatment or reduction of ores or metals, in cement works, in works using oils, cyanide, acids or quicksilver. The toilets shall be screened and ventilated with not less than one seat for each twenty-five persons, and one seat for each fraction of that number above ten, employed in the establishment. One shower bath shall be provided for every twenty-five men employed in the establishment with adequate wash room facilities.

The rooms and places shall at all times be open to employees and shall be kept in a clean and sanitary condition. A heated wash and change room shall be maintained contiguous to every mine employing twenty-five or more men.

B. Any owner or operator of an establishment as provided in subsection A violating this section, and any person placing any obscene picture, writing or marking in or about the premises mentioned in subsection A, is guilty of a class 3 misdemeanor.

Article 4 Communicable Disease Information

§ 36-661 Definitions

In this article, unless the context otherwise requires:

1. "Acquired immune deficiency syndrome" has the same meaning as defined by the centers for disease control of the United States public health service.

2. "Capacity to consent" means a person's ability, determined without regard to the person's age, to understand and appreciate the nature and consequences of a proposed health care service, treatment or procedure and to make an informed decision concerning that service, treatment or procedure.

3. "Child" means an unemancipated person under eighteen years of age.

4. "Communicable disease" means a contagious, epidemic or infectious disease required to be reported to the local board of health or the department pursuant to chapter 1 of this title and this chapter.

5. "Communicable disease related information" means information regarding a communicable disease in the possession of a person who provides health services or who obtains the information pursuant to the release of communicable disease related information.

6. "Contact" means a spouse or sex partner of a protected person, a person who has shared hypodermic needles or syringes with a protected person or a person otherwise exposed to a protected person with a communicable disease in a manner that poses an epidemiologically significant risk of transmission of that disease.

7. "Department" means the department of health services.

8. "Director" means the director of the department of health services.

9. "First responder" means a law enforcement officer, a firefighter or an ambulance attendant as defined in section 36-2201.

10. "Good Samaritan" means a person who renders emergency care or assistance in good faith and without compensation at the scene of any accident, fire or other life-threatening emergency and who believes that a significant exposure risk occurred while the person rendered care or assistance.

11. "Health care decision maker" has the same meaning prescribed in section 12-2801.

12. "Health care provider" means a physician, nurse or other person involved in providing health services.

13. "Health facility" means a health care institution as defined in section 36-401, a blood bank, blood center, milk bank, sperm bank, organ or tissue bank or clinical laboratory or a health care services organization holding a certificate of authority pursuant to section 20-1054.

14. "Health service" means public or private care, treatment, clinical laboratory tests, counseling or educational service for adults or children and acute, chronic, custodial, residential, outpatient, home or other health care or activities related to the detection, reporting, prevention and control of communicable or preventable diseases.

15. "HIV" means the human immunodeficiency virus.

16. "HIV infection" means infection with the human immunodeficiency virus or a related virus identified as a probable causative agent of acquired immune deficiency syndrome.

17. "HIV-related illness" means an illness that may result from or be associated with HIV infection.

18. "HIV-related information" means information concerning whether a person has had an HIV-related test or has HIV infection, HIV-related illness or acquired immune deficiency syndrome and includes information that identifies or reasonably permits identification of that person or the person's contacts.

19. "HIV-related test" means a laboratory test or series of tests for the virus, components of the virus or antibodies to the virus thought to indicate the presence of HIV infection.

20. "Occupational significant exposure risk" means a significant exposure risk that occurs in the performance of a health care provider's professional duties or a first responder's official duties.

21. "Protected person" means a person who takes an HIV-related test or who has been diagnosed as having HIV infection, acquired immune deficiency syndrome, HIV-related illness or another communicable disease.

22. "Significant exposure risk" means contact with another person in a manner that, if the other person has a communicable disease, poses an epidemiologically significant risk of transmission of that disease as determined by the department.

§ 36-662 Access to records

In conducting an investigation of a reportable communicable disease the department of health services and local health departments may inspect and copy medical or laboratory records in the possession of or maintained by a health care provider or health care facility which are related to the diagnosis, treatment and control of the specific communicable disease case reported. Requests for records shall be made in writing by the appropriate officer of the department of health services or local health department and shall specify the communicable disease case and the patient under investigation.

§ 36-664 Confidentiality; exceptions

A. A person who obtains communicable disease related information in the course of providing a health service or obtains that information from a health care provider pursuant to an authorization shall not disclose or be compelled to disclose that information except as authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or pursuant to the following:

1. The protected person or, if the protected person lacks capacity to consent, the protected person's health care decision maker.

2. A health care provider or first responder who has had an occupational significant exposure risk to the protected person's blood or bodily fluid if the health care provider or first responder provides a written request that documents the occurrence and information regarding the nature of the occupational significant exposure risk and the report is reviewed and confirmed by a health care provider who is both licensed pursuant to title 32, chapter 13, 14, 15 or 17 and competent to determine a significant exposure risk. A health care provider who releases communicable disease information pursuant to this paragraph shall provide education and counseling to the person who has had the occupational significant exposure risk.

3. The department or a local health department for purposes of notifying a Good Samaritan pursuant to subsection E of this section.

4. An agent or employee of a health facility or health care provider to provide health services to the protected person or the protected person's child or for billing or reimbursement for health services.

5. A health facility or health care provider, in relation to procuring, processing, distributing or using a human body or a human body part, including organs, tissues, eyes, bones, arteries, blood, semen, milk or other body fluids, for use in medical education, research or therapy or for transplantation to another person.

6. A health facility or health care provider, or an organization, committee or individual designated by the health facility or health care provider, that is engaged in the review of professional practices, including the review of the quality, utilization or necessity of medical care, or an accreditation or oversight review organization responsible for the review of professional practices at a health facility or by a health care provider.

7. A private entity that accredits the health facility or health care provider and with whom the health facility or health care provider has an agreement requiring the agency to protect the confidentiality of patient information.

8. A federal, state, county or local health officer if disclosure is mandated by federal or state law.

9. A federal, state or local government agency authorized by law to receive the information. The agency is authorized to redisclose the information only pursuant to this article or as otherwise allowed by law.

10. An authorized employee or agent of a federal, state or local government agency that supervises or monitors the health care provider or health facility or administers the program under which the health service is provided. An authorized employee or agent includes only an employee or agent who, in the ordinary course of business of the government agency, has access to records relating to the care or treatment of the protected person.

11. A person, health care provider or health facility to which disclosure is ordered by a court or administrative body pursuant to section 36-665.

12. The industrial commission of Arizona or parties to an industrial commission of Arizona claim pursuant to section 23-908, subsection D and section 23-1043.02.

13. Insurance entities pursuant to section 20-448.01 and third-party payors or the payors' contractors.

14. Any person or entity as authorized by the patient or the patient's health care decision maker.

15. A person or entity as required by federal law.

16. The legal representative of the entity holding the information in order to secure legal advice.

17. A person or entity for research only if the research is conducted pursuant to applicable federal or state laws and regulations governing research.

18. A person or entity that provides services to the patient's health care provider, as defined in section 12-2291, and with whom the health care provider has a business associate agreement that requires the person or entity to protect the confidentiality of patient information as required by the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 164, subpart E).

19. A county medical examiner or an alternate medical examiner directing an investigation into the circumstances surrounding a death pursuant to section 11-593.

B. At the request of the department of child safety or the department of economic security and in conjunction with the placement of children in foster care or for adoption or court-ordered placement, a health care provider shall disclose communicable disease information, including HIV-related information, to the department of child safety or the department of economic security.

C. A state, county or local health department or officer may disclose communicable disease related information if the disclosure is any of the following:

1. Specifically authorized or required by federal or state law.

2. Made pursuant to an authorization signed by the protected person or the protected person's health care decision maker.

3. Made to a contact of the protected person. The disclosure shall be made without identifying the protected person.

4. Made for the purposes of research as authorized by state and federal law.

5. Made to a nonprofit health information organization as defined in section 36-3801 that is designated by the department as this state's official health information exchange organization.

D. The director may authorize the release of information that identifies the protected person to the national center for health statistics of the United States public health service for the purposes of conducting a search of the national death index.

E. The department or a local health department shall disclose communicable disease related information to a Good Samaritan who submits a request to the department or the local health department. The request shall document the occurrence of the accident, fire or other life-threatening emergency and shall include information regarding the nature of the significant exposure risk. The department shall adopt rules that prescribe standards of significant exposure risk based on the best available medical evidence. The department shall adopt rules that establish procedures for processing requests from Good Samaritans pursuant to this subsection. The rules shall provide that the disclosure to the Good Samaritan not reveal the protected person's name and be accompanied by a written statement that warns the Good Samaritan that the confidentiality of the information is protected by state law.

F. An authorization to release communicable disease related information shall be signed by the protected person or, if the protected person lacks capacity to consent, the protected person's health care decision maker. An authorization shall be dated and shall specify to whom disclosure is authorized, the purpose for disclosure and the time period during which the release is effective. A general authorization for the release of medical or other information, including communicable disease related information, is not an authorization for the release of HIV-related information unless the authorization specifically indicates its purpose as an authorization for the release of confidential HIV-related information and complies with the requirements of this section.

G. A person to whom communicable disease related information is disclosed pursuant to this section shall not disclose the information to another person except as authorized by this section. This subsection does not apply to the protected person or a protected person's health care decision maker.

H. This section does not prohibit the listing of communicable disease related information, including acquired immune deficiency syndrome, HIV-related illness or HIV infection, in a certificate of death, autopsy report or other related document that is prepared pursuant to law to document the cause of death or that is prepared to release a body to a funeral director. This section does not modify a law or rule relating to access to death certificates, autopsy reports or other related documents.

I. If a person in possession of HIV-related information reasonably believes that an identifiable third party is at risk of HIV infection, that person may report that risk to the department. The report shall be in writing and include the name and address of the identifiable third party and the name and address of the person making the report. The department shall contact the person at risk pursuant to rules adopted by the department. The department employee making the initial contact shall have expertise in counseling persons who have been exposed to or tested positive for HIV or acquired immune deficiency syndrome.

J. Except as otherwise provided pursuant to this article or subject to an order or search warrant issued pursuant to section 36-665, a person who receives HIV-related information in the course of providing a health service or pursuant to a release of HIV-related information shall not disclose that information to another person or legal entity or be compelled by subpoena, order, search warrant or other judicial process to disclose that information to another person or legal entity.

K. This section and sections 36-666, 36-667 and 36-668 do not apply to persons or entities that are subject to regulation under title 20.

§ 36-665 Order for disclosure of communicable disease related information

A. Notwithstanding any other law, no court or administrative body may issue an order for the disclosure of or a search warrant for communicable disease related information, except as provided by this section. An administrative body includes any administrative law judge or hearing officer presiding over matters relating to the administrative body.

B. An order for disclosure of or a search warrant for communicable disease related information may be issued on an application showing any one of the following:

1. A compelling need for disclosure of the information for the adjudication of a criminal, civil or administrative proceeding.

2. A clear and imminent danger to a person whose life or health may unknowingly be at significant risk as a result of contact with the person to whom the information pertains.

3. If the application is filed by a state, county or local health officer, a clear and imminent danger to the public health.

4. That the applicant is lawfully entitled to the disclosure and the disclosure is consistent with the provisions of this article.

5. A clear and imminent danger to a person or to public health or a compelling need requiring disclosure of the communicable disease related information.

C. On receiving an application pursuant to this section, the court or administrative body shall enter an order directing that the file be sealed and not made available to any person, except to the extent necessary to conduct a proceeding in connection with the determination of whether to grant or deny the application, including an appeal. The court or administrative body shall also order that all subsequent proceedings in connection with the application be conducted in camera and, if appropriate to prevent the unauthorized disclosure of communicable disease related information, that pleadings, papers, affidavits, judgments, orders, briefs and memoranda of law that are part of the application or the decision not state the name of the person concerning whom communicable disease related information is sought.

D. The person concerning whom the information is sought and a person holding records from whom disclosure is sought shall be given adequate notice of the application in a manner which does not disclose to any other person the identity of the person and may file a written response to the application or appear in person for the limited purpose of providing evidence on the criteria for the issuance of an order pursuant to this section.

E. The court or administrative body may grant an order without notice and an opportunity to be heard if an ex parte application by a public health officer shows that a clear and imminent danger to a person whose life or health may unknowingly be at risk requires an immediate order and that notice to the individual about whom the information is sought is not reasonable under the circumstances.

F. Service of a subpoena is not required for actions brought pursuant to subsections D and E.

G. In assessing compelling need and clear and imminent danger, the court or administrative body shall provide written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports each finding, and shall weigh the need for disclosure against the privacy interest of the protected person and the public interest which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination.

H. An order authorizing disclosure of or a search warrant for communicable disease related information shall:

1. Limit disclosure to that information which is necessary to fulfill the purpose for which the order is granted.

2. Limit disclosure to those persons whose need for the information is the basis for the order, and specifically prohibit redisclosure by persons to any other persons, whether or not they are parties to the action.

3. To the extent possible consistent with this section, conform to the provisions of this article.

4. Include other measures as deemed necessary to limit disclosures not authorized by the order.

I. Notwithstanding any other law, a court or administrative body shall not order the department, a county health department or a local health department to release HIV-related information in its possession.

§ 36-666 Violation; classification; immunity

A. A person who knowingly does the following is guilty of a class 3 misdemeanor:

1. Performs, or permits or procures the performance of, an HIV-related test in violation of this article.

2. Discloses, compels another person to disclose or procures the disclosure of communicable disease related information in violation of this article.

B. A person, health facility or health care provider disclosing communicable disease related information pursuant to or required by this article is immune from civil or criminal liability if the person, health care facility or health care provider acted in good faith and without malice.

C. A health facility or health care provider, including a physician, the physician's employer or the health care facility or health care provider with which the physician is associated, is immune from civil or criminal liability for failing to disclose communicable disease related information to a contact or a person authorized pursuant to law to consent to health care for a protected person if the health facility or health care provider acted in good faith and without malice.

D. For the purposes of this section, good faith and the absence of malice are presumed unless the presumption is overcome by a demonstration of clear and convincing evidence to the contrary.

§ 36-667 Civil penalty

A. The department may impose a civil penalty of not more than five thousand dollars if a person does the following in violation of this article:

1. Performs, or permits or procures the performance of, an HIV-related test in violation of this article.

2. Discloses, compels another person to disclose or procures the disclosure of communicable disease related information in violation of this article.

B. The director shall deposit, pursuant to sections 35-146 and 35-147, all monies collected pursuant to this section in the state general fund.

§ 36-668 Private right of action

A protected person may bring an action in superior court for legal and equitable relief on his own behalf against a person who violates this article.

§ 36-669 Human immunodeficiency testing of prisoners

The state department of corrections in consultation with the department of health services may require that a prisoner be tested for the human immunodeficiency virus if the department of corrections has reasonable grounds to believe that the person is infected with the human immunodeficiency virus and is a health threat to others.

§ 36-670 Good Samaritan; deceased person; disease testing; petition; hearing; notice; exception

A. A Good Samaritan may petition the court for an order authorizing testing of a deceased person for the human immunodeficiency virus, common bloodborne diseases or other diseases specified in the petition if there are reasonable grounds to believe an exposure occurred and there is probable cause to believe that the deceased person transferred blood or other bodily fluids on or through the skin or membranes of the Good Samaritan.

B. The court shall hear the petition promptly. If the court finds that probable cause exists to believe that a possible transfer of blood or other bodily fluids occurred between the deceased person and the Good Samaritan, the court shall order that the county medical examiner or alternate medical examiner draw two specimens of blood, if available, for testing and make the samples available for testing by a private health care provider or private health facility specified in the court order at the Good Samaritan's expense.

C. Notwithstanding subsection B of this section, on written notice from the department, the county medical examiner or alternate medical examiner is authorized to draw two specimens of blood, if available, during the autopsy or other examination of the deceased person's body, for infectious disease testing. The county medical examiner or alternate medical examiner shall release the specimen only after the court issues an order pursuant to subsection B of this section. If the court does not issue an order within thirty days after the county medical examiner or alternate medical examiner collects the specimen, the county medical examiner or alternate medical examiner shall destroy the specimen.

D. Notice of the test results shall be provided as prescribed by the department to the Good Samaritan named in the petition.

E. Section 36-665 does not apply to this section.

Article 4.1 School Immunization

§ 36-671 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

3. "Documentary proof" means written evidence that a pupil has been immunized or has laboratory evidence of immunity which conforms with the standards promulgated pursuant to section 15-872.

4. "Dose" means the number in a series of immunizations which may be prescribed pursuant to section 36-672.

5. "Health agency" means a local health department or similar governmental agency established pursuant to the laws of another state or country and its officers and employees.

6. "Immunization" means the process of inoculation with a specific antigen to promote antibody formation in the body.

7. "Immunized" means the required initial immunization and boosters or reimmunization prescribed pursuant to section 36-672.

8. "Laboratory evidence of immunity" means written evidence of serologic confirmation of the presence of specific antibodies against an immunization-preventable disease which is signed by a physician or an authorized representative of a health agency.

9. "Local health department" means local health departments established pursuant to chapter 1, article 4 of this title.

10. "Physician" means a person licensed pursuant to title 32, chapter 13, 17 or 29 or a person licensed to practice allopathic or osteopathic medicine under the laws of another state or country.

11. "Pupil" means a person who is eligible to receive instruction at a school and includes pre-kindergarten age children receiving either services for children with disabilities or day care on a school campus otherwise exempt from day care rules pursuant to section 36-884.

12. "School" means a public, private or parochial school that offers instruction at any level or grade through twelfth grade, except for day care facilities regulated pursuant to chapter 7.1 of this title.

13. "School administrator" means the principal or person having general daily control and supervision of the school or that person's designee.

§ 36-672 Immunizations; department rules

A. Consistent with section 15-873, the director shall adopt rules prescribing required immunizations for school attendance, the approved means of immunization and indicated reinforcing immunizations for diseases and identifying types of health agencies and health care providers that may sign a laboratory evidence of immunity. The rules shall include the required doses and recommended optimum ages for administration of the immunizations, persons who are authorized representatives to sign on behalf of a health agency and other provisions necessary to implement this article.

B. The director, in consultation with the superintendent of public instruction, shall develop by rule standards for documentary proof.

C. The following immunizations are not required for school attendance:

1. The immunization against the human papillomavirus.

2. An immunization for COVID-19 or any variant of COVID-19.

D. An immunization must be prescribed by a rule adopted pursuant to subsection A of this section before the immunization may be required for in-person school attendance.

E. Pursuant to section 1-602, this section does not preclude a parent's right to make health care decisions for the parent's minor child.

§ 36-673 Duties of local health departments; immunization; reimbursement; training; informed consent

A. A local health department in cooperation with each school within the county shall provide for the required immunization of pupils attending school.

B. A local health department shall provide immunizations required for school attendance at no cost to the pupil or pupil's parent, guardian or person in loco parentis. In order to receive reimbursement for the cost of the immunization from the pupil's or parent's private health insurance coverage, the local health department may enter into a contract governing the terms of reimbursement and claims with the corresponding private health care insurer. The local health department may enter into a contract with a private health care insurer on its own, in conjunction with other local health departments or through a qualified intermediary. If the local health department chooses not to contract with a private health care insurer, or does not respond to the request to contract from a private health care insurer within ninety days of the request, the insurer is not required to reimburse the local health department for the immunization. If a private health care insurer declines or does not respond to a request to contract with a local health department, with a coalition of other local health departments or through a qualified intermediary within ninety days of the request to contract, the private health care insurer must reimburse the local health department at the rate paid to an in-network provider.

C. A local health department, on request by a school nurse and approval by the school administrator, shall train and authorize the school nurse to administer required immunizations.

D. A pupil shall not be immunized without the informed consent of the parent, guardian or person in loco parentis of the pupil. A pupil who is at least eighteen years of age or is emancipated may consent to immunization.

§ 36-674 Providing proof of immunization

A physician, local health department or school nurse administering an immunization shall furnish documentary proof of immunization to the person immunized or, if that person is a child, to the child's parent or guardian or the person in loco parentis of the child.

Article 4.2 Public Health Mandates

§ 36-681 Governmental entities; masks; prohibition; exception; definition

A. A governmental entity may not impose any requirement to wear a mask or face covering anywhere on the governmental entity's premises, except where long-standing workplace safety and infection control measures that are unrelated to COVID-19 may be required.

B. The requirements of this section do not apply to a special health care district established pursuant to title 48, chapter 31.

C. For the purposes of this section, "governmental entity" means this state and any political subdivision of this state, including the judiciary, that receives and uses state tax revenues.

§ 36-682 Vaccinations; enforcement prohibition; violation; classification; definition

A. Any governmental entity may not require a person under eighteen years of age to receive a vaccination for COVID-19 or any variant of COVID-19 without the consent of a parent or guardian.

B. The county attorney may prosecute any violation of this section.

C. A person who violates this section is guilty of a class 1 misdemeanor.

D. For the purposes of this section, "governmental entity" means this state or any political subdivision of this state that receives and uses state tax revenues.

Article 4.3 Vaccinations

§ 36-685 Vaccinations; prohibition; exception; definition

A. Any government entity may not require a resident of this state to receive a vaccination for COVID-19 or any variant of COVID-19.

B. Subsection A of this section does not apply to a health care institution that is owned or operated by a government entity in this state.

C. For the purposes of this section, "government entity" means this state and any political subdivision of this state that receives and uses tax revenues.

Article 5 Maternal and Child Health

§ 36-691 Acceptance of congressional act relating to maternal and child health

A. This state accepts the conditions of title V of the social security act, entitled "grants to states for maternal and child welfare", enacted August 14, 1935, and as amended.

B. The department of health services is designated as the state agency to cooperate with the department of health, education and welfare for the administration of part 1 and part 4 of title V, of the social security act.

§ 36-692 Standards for county participation

The director of department of health services shall by regulations establish standards for the involvement of local health departments in meeting minimum requirements for providing maternal and child health services in accordance with title V, of the social security act.

§ 36-693 Blood tests required; pregnant women; umbilical cord at delivery; definition

A. A physician shall at the time of the first prenatal examination, after a diagnosis of pregnancy, take or cause to be taken a sample of the blood of the woman and submit it to an approved laboratory for a standard serological test for syphilis. If the woman has not had a serological test prior to delivery, a sample of blood from the umbilical cord shall be taken at delivery for examination.

B. Any other person permitted by law to attend pregnant women but not permitted to take blood samples shall cause a sample of the blood of each pregnant woman attended by him to be taken under the direction of a duly licensed physician of medicine and surgery as required by subsection A. The physician shall have the sample submitted to an approved laboratory for a standard serological test for syphilis.

C. For the purpose of this section "standard serological test" means a test for syphilis approved by the director and made at a laboratory approved by the director to make such tests. A laboratory test required by this section shall be made by the state laboratory without charge.

§ 36-694 Report of blood tests; newborn screening program; committee; fee; definitions

A. When a birth or stillbirth is reported, the attending physician or other person required to report the birth shall state on the certificate whether a blood test for syphilis was made on a specimen of blood taken from the woman who bore the child or from the umbilical cord at delivery, as required by section 36-693, and the approximate date when the specimen was taken.

B. When a birth is reported, the attending physician or person who is required to report the birth shall order or cause to be ordered tests for certain congenital disorders, including hearing disorders. The results of tests for these disorders must be reported to the department of health services. The department of health services shall specify in rule the disorders, the process for collecting and submitting specimens and the reporting requirements for test results.

C. When a hearing test is performed on a newborn, the initial hearing test results and any subsequent hearing test results must be reported to the department of health services as prescribed by department rules.

D. The director of the department of health services shall establish a newborn screening program within the department to ensure that the testing for congenital disorders and the reporting of hearing test results required by this section are conducted in an effective and efficient manner. The newborn screening program shall include all congenital disorders that are included on the recommended uniform screening panel adopted by the secretary of the United States department of health and human services for both core and secondary conditions. Except as otherwise provided in subsection E of this section, congenital disorders that are added to the core and secondary conditions list of the recommended uniform screening panel shall be added to this state's newborn screening panel within two years after their addition to the recommended uniform screening panel. The newborn screening program shall include an education program for the general public, the medical community, parents and professional groups. The director shall designate the state laboratory as the only testing facility for the program, except that the director may designate other laboratory testing facilities for conditions or tests added to the newborn screening program on or after July 24, 2014. If the director designates another laboratory testing facility for any condition or test, the director shall require the facility to follow all of the privacy and sample destruction time frames that are required of the state laboratory.

E. The two-year time frame to add disorders to this state's newborn screening panel does not apply if both:

1. There is no commercially available test method approved by the United States food and drug administration.

2. A laboratory-developed test method is used to identify the disorder and the laboratory-developed test method requires United States food and drug administration premarket review and approval or authorization.

F. In addition to the congenital disorders added to this state's newborn screening panel pursuant to subsection D of this section, the department shall add Duchenne muscular dystrophy to this state's newborn screening panel.

G. The newborn screening program shall establish and maintain a central database of newborns and infants who are tested for hearing loss and congenital disorders that includes information required in rule. Test results are confidential subject to the disclosure provisions of sections 12-2801 and 12-2802.

H. If tests conducted pursuant to this section indicate that a newborn or infant may have a hearing loss or a congenital disorder, the screening program shall provide follow-up services to encourage the child's family to access evaluation services, specialty care and early intervention services.

I. The director shall establish a committee to provide recommendations and advice to the department on at least an annual basis regarding newborn screening best practices and emerging trends.

J. The director may establish by rule a fee that the department may collect for operating the newborn screening program, including contracting for the testing pursuant to this section. The director shall present any change to the fee for the newborn screening program to the joint legislative budget committee for review.

K. Not later than sixty days after the department adjusts the newborn screening program fee established pursuant to subsection J of this section:

1. Each health insurer that is subject to title 20 shall update its hospital rates that include newborn screening to reflect the increase.

2. For the Arizona health care cost containment system and contractors acting pursuant to chapter 29, article 1 of this title that are not subject to title 20, the Arizona health care cost containment system shall update its hospital rates that include newborn screening to reflect the increase.

L. For the purposes of this section:

1. "Infant" means a child who is twenty-nine days of age to two years of age.

2. "Newborn" means a child who is not more than twenty-eight days of age.

§ 36-694.01 Newborn screening program fund; use; exemption

A. The newborn screening program fund is established. The department of health services shall administer the fund. The fund consists of fees collected pursuant to section 36-694 and gifts, grants and donations received by the department.

B. Subject to legislative appropriation, the department shall use fund monies to support the operation of the newborn screening program prescribed under section 36-694 and rules adopted under that section.

C. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-695 Acceptance of congressional act relating to the supplemental security income to children with disabilities program

A. This state accepts the conditions of title XVI of the social security act, section 1615, enacted October 20, 1976 (P.L. 94-566; 90 Stat. 2683, 42 U.S.C. sec. 138 2d).

B. The department of health services is designated as the state agency to cooperate with the department of health and human resources for the administration of the supplemental security income to children with disabilities program, as authorized by section 1615 of title XVI of the social security act.

§ 36-697 Health start program; administration

A. Subject to appropriated monies the health start program is established in the department of health services. The program shall serve pregnant women, children and their families. The program shall be statewide, based in identified neighborhoods and delivered by lay health workers through prescheduled home visits or prescheduled group classes that begin before the child's birth or during the postnatal period and that may continue until the child is two years of age. The department shall establish the criteria to be used in evaluating communities and neighborhoods to be served by competing program proposals. The evaluation criteria shall include at a minimum a high incidence of the following:

1. Inadequate prenatal care.

2. Inadequate infant health care.

3. Infants who at birth weigh less than one thousand five hundred grams and who require more than seventy-two hours of neonatal intensive care.

4. Inadequate early childhood immunizations.

B. The department shall establish at a minimum the following goals for the program:

1. Reduce the incidence of infants who at birth weigh less than one thousand five hundred grams and who require more than seventy-two hours of neonatal intensive care.

2. Reduce the incidence of children affected by childhood diseases.

3. Increase the number of children receiving age appropriate immunizations by two years of age.

4. Increase awareness by educating families:

(a) On the importance of good nutritional habits to improve the overall health of their children.

(b) On the need for developmental assessments to promote the early identification of learning disabilities, physical disabilities or behavioral health needs.

(c) Of the benefits of preventative health care and the need for screening examinations such as hearing and vision.

5. Increase prenatal care services to pregnant women.

C. The department shall:

1. Develop program criteria and staff training requirements.

2. Contract with local private and public agencies to recruit and train lay health workers.

3. Enter into interagency agreements to maximize funding for the program.

4. Distribute the Arizona children and families resource directory compiled under section 36-698 to hospitals for distribution to the families of any newly born child in order to help them answer questions concerning early childhood development.

5. Link program participants to programs that reduce illiteracy, reduce dependency on welfare, encourage employment, encourage self-sufficiency and encourage community involvement by program participants through community service, employment or participation in religious or social organizations.

6. Develop employment guidelines for program personnel that include background checks for those personnel who will have direct contact with pregnant women or families or who will have access to program participant records.

D. The program, through lay health workers, shall:

1. Identify, screen and enroll pregnant women in the lay health worker's neighborhood or community.

2. Inform program participants of how to receive prenatal care services.

3. Assist program participants to access appropriate prenatal care.

4. Educate program participants on appropriate prenatal and neonatal care, preventative health care and child wellness, including appropriate nutritional habits to improve the overall health of their children.

5. Assist and encourage program participants to provide age appropriate immunizations so that their children are fully immunized by two years of age.

6. Provide participants with a list of local private, both nonprofit and for profit, providers and governmental agencies providing the services included in paragraphs 1 through 5 of this subsection.

E. Program services shall not be provided under this section unless:

1. Participation in the program is initiated in response to a request by a potential program participant.

2. A verbal explanation of the program is provided to program participants including an explanation of the rights and responsibilities of both the participant and the program provider.

3. The written, informed consent of the program participants is received. The consent form shall include at least a clear description of the program including the activities and information to be provided by the program during prescheduled home visits or prescheduled group classes, the number of expected home visits and prescheduled group classes, the right of program participants to terminate participation in the program at any time, any responsibilities of the program participants, a statement that a record will be made and maintained of the visits and sessions and may be available in future court proceedings, and any other information that is necessary to convey to the program participants a clear understanding of the program.

4. If the contact occurs at the primary residence of the potential program participant, program personnel do not enter the residence during the initial contact without that person's permission.

F. If the potential program participant is a minor living with the minor's parent or guardian, home visits shall not be provided under this section without the additional written consent of the parent or guardian.

G. Program participants have access to the records on their own family at all times and have the right to correct any inaccurate information included in the records. Records, except for nonidentifiable demographic characteristics, shall be destroyed five years after the participant's last involvement in the program. Program records are not available to other government agencies or programs in the department without specific prior written consent by the program participant for the release of information in the program participant's records.

§ 36-698 Arizona children and families resource directory; distribution

A. The department of health services shall develop the Arizona children and families resource directory. The directory shall include a list of private and public organizations and providers that specialize in early childhood development and the services included in section 8-481, subsection D. The purpose of the directory is to enable parents to obtain information that is critical to the development of their young children without relying on public programs.

B. The department shall distribute the directory to hospitals for distribution to the families of any newly born child to help these families answer questions concerning early childhood development.

C. The department of health services shall distribute the directory to the department of child safety for distribution to program participants in the healthy families program pursuant to section 8-481.

D. The department may provide the directory to other persons or organizations that request copies and may charge a fee to cover the department's costs to prepare these copies.

§ 36-699 Folic acid supplements; distribution; counseling; funding

A. The department shall establish a program to distribute folic acid supplements to women of childbearing age and to provide them with counseling and information regarding the proper use of the supplements.

B. The department shall authorize local health departments and other entities to distribute the supplements and provide the counseling and information services.

C. To distribute the supplements and provide the counseling as prescribed by this section, the department may use monies appropriated by the legislature for the federal women, infants and children food program.

§ 36-700 Farmers' market nutrition program

A. The department shall establish a farmers' market nutrition program and apply to receive federal matching funds under the federal farmers' market nutrition act of 1992.

B. To provide the local funds for the farmers' market nutrition program, the department may use monies appropriated for the federal women, infants and children food program.

Article 6 Tuberculosis Control

§ 36-711 Definitions

In this article, unless the context otherwise requires:

1. "Active tuberculosis" means a disease that is caused by mycobacterium tuberculosis or other members of the mycobacterium tuberculosis complex family in any part of the body and that is in an active state as determined by either:

(a) A smear or culture that is taken from any source in the afflicted person's body and that tests positive for tuberculosis and the afflicted person has not completed a medically successful complete course of antituberculosis treatment.

(b) Radiographic, current clinical or laboratory bacteriological evidence that is sufficient to support a medical diagnosis of tuberculosis for which medical treatment is indicated and the person has not completed a medically successful complete course of antituberculosis treatment.

2. "Afflicted person" means a person who has or who based upon reasonable grounds is suspected of having active tuberculosis.

3. "Appropriate prescribed course of medication" means a course of medication that is prescribed by a physician and that meets the recommendations of any of the following:

(a) The tuberculosis control officer.

(b) A local health officer.

(c) The most recent guidelines of the department.

(d) The most recent guidelines of the federal centers for disease control and prevention.

4. "Cure" means a medically successful complete course of antituberculosis treatment.

5. "Department" means the department of health services.

6. "Directly observed therapy" means an appropriate prescribed course of treatment for active tuberculosis in which the prescribed antituberculosis medications are administered to the afflicted person or taken by the afflicted person under the direct observation of a physician, a physician assistant, a registered nurse, a health care provider or another designated responsible person.

7. "Director" means the director of the department of health services.

8. "Examination" means conducting tests that include Mantoux tuberculin skin tests, laboratory examination and x-rays as recommended by any of the following:

(a) The tuberculosis control officer.

(b) A local health officer.

(c) The most recent department guidelines.

(d) The most recent guidelines of the centers for disease control and prevention.

9. "Health care institution" has the same meaning prescribed in section 36-401.

10. "Incapacitated person" has the same meaning as prescribed in section 14-5101.

11. "Institution" means any public or private hospital, rest home, sanatorium, health care institution or other facility approved by the department for the care and treatment of afflicted persons.

12. "Intervention" means treatment, monitoring, quarantine or isolation or any combination thereof.

13. "Isolation" means the physical separation of afflicted persons from others in order to limit the transmission of active tuberculosis.

14. "Local health officer" means the health officer and other persons who are designated by the local health officer.

15. "Medical director" means an individual at a receiving facility who is either a licensed physician or a hospital administrator acting upon the advice of a licensed physician who is authorized by the facility to make any decisions concerning afflicted persons as prescribed by this article.

16. "Medically successful complete course of antituberculosis treatment" means that an afflicted person has successfully completed a prescribed course of antituberculosis treatment and has been medically discharged from further medical treatment for tuberculosis by a licensed physician.

17. "Minor" means a child under the age of eighteen years of age, except as provided by the provisions of section 44-132.

18. "Monitoring" means a program of supervision designed to monitor the health and activities of an afflicted person. Monitoring includes ensuring compliance with an appropriate prescribed course of medication or medical therapy and with the recommendations and orders of the tuberculosis control officer or a local health officer.

19. "Quarantine" means the restriction of activities of persons who have been exposed to an afflicted person.

20. "Treatment" means medication or medical therapy prescribed by a licensed physician to cure a person of active tuberculosis.

21. "Tuberculosis control officer" means a person appointed by the director to be the chief tuberculosis control officer for tuberculosis control in this state and other persons who are designated by the control officer.

22. "Voluntary treatment plan" means a written plan that is developed by a medical authority, that has been approved by the tuberculosis control officer or the local health officer and that prescribes one or more of the following on a voluntary basis:

(a) Examination.

(b) Monitoring.

(c) Treatment.

(d) Isolation.

(e) Quarantine.

§ 36-712 Administration by the department

The department shall:

1. Own and control all personal property or interest in that property that is devoted and used by the tuberculosis control officer for purposes of this article.

2. Be the official custodian of all files and records that belong to or were kept at the Arizona state sanatorium before the sanatorium was converted to a hospital for children with a physical disability.

3. Be the official state agency to receive for deposit in an appropriate account of the public health fund and administer and expend any funds granted, contributed or made available by the federal government, appropriated by the state or received from other sources for the treatment, prevention or control of tuberculosis. Such funds are subject to title 35, chapter 1, article 4 and periodic review by the joint legislative budget committee.

§ 36-714 Tuberculosis control officer

A. The tuberculosis control officer shall be appointed by the director. The control officer shall be a licensed physician experienced in the field of tuberculosis and tuberculosis control and, subject to the supervision of the director, shall administer and direct the activities of tuberculosis control in this state. The control officer is responsible for the detection, supervision, isolation, quarantine, investigation of contacts and all other matters pertaining to the investigation, control and treatment of tuberculosis as provided by this article. With the cooperation of local medical societies and local health departments and boards, the officer may conduct or supervise clinics for the diagnosis, treatment and control of tuberculosis in convenient places throughout the state. The control officer shall maintain or cause to be maintained a register of the tuberculosis health status of known afflicted persons and of their contacts, based on current reports obtained from physicians, institutions, clinics, health departments and other authorized personnel.

B. The tuberculosis control officer may:

1. Examine any or all records, reports and other data pertaining to the condition of afflicted persons. This information is confidential and privileged and shall not be divulged so as to disclose the identity of the person to whom it relates. The control officer or local health officer may disclose records, reports and other data the officer possesses to health care facilities, health care providers, county and state agencies and courts as necessary to enforce this article and related rules concerning the control, examination, treatment, monitoring, isolation, and quarantine of afflicted persons.

2. Inspect the facilities, equipment, operations and administration of institutions that provide care or treatment for afflicted persons.

3. With the approval of the director, contract with any federal agency, foreign government, Indian tribal government, any agency of this state or other state or of any political subdivision of this state or another state or any private entity to assist in the support of its tuberculosis control program with monies available to the department for that purpose. This program may include preventive, therapeutic and rehabilitative services and shall be used to encourage the fullest development and maintenance of an integrated statewide tuberculosis control program.

C. The tuberculosis control officer shall cooperate with any federal agency, foreign government, Indian tribal governments, or agency of this state or any political subdivisions of this state or other state or any private entity to qualify for and obtain their support in carrying out this article and to aid them in carrying out their respective responsibilities that relate to afflicted persons.

§ 36-715 Costs; removal; proceedings

A. The director or the director's designee may enter into reciprocal agreements with federal agencies, foreign governments, state agencies, Indian tribal governments, political subdivisions and other jurisdictions to facilitate the return of any afflicted person. The expense of this transportation may be paid by the department of economic security out of funds appropriated to it for the purpose of carrying out this article.

B. The costs of any proceeding held pursuant to this article shall be charged to the county in which the proceeding is held.

§ 36-716 Payment of assistance

A. An afflicted person who is under medical treatment for tuberculosis prior to release for employment and who needs or whose family needs financial assistance shall be referred to the department of economic security for determination of financial assistance eligibility.

B. The department of economic security shall determine and furnish assistance that is necessary to provide adequate support for those who have a legal claim for support or care from the afflicted person and for that person if the tuberculosis control officer or local health officer has approved that person or a member or members of that person's family for assistance.

§ 36-717 Responsibility for care or treatment by counties

A. The local board of health, through the board of supervisors of the county, shall be responsible for providing or arranging for the provision of medical care and treatment of persons in the county infected with tuberculosis.

B. A county with a population of more than one million persons shall pay claims approved by the county from a facility or provider for medical care or treatment that are a county charge pursuant to subsection A of this section, unless otherwise provided by an intergovernmental agreement, as follows:

1. For inpatient and outpatient hospital services, the county shall reimburse at a level that does not exceed the reimbursement methodology established pursuant to section 36-2903.01, subsection G.

2. For health and medical services, the county shall reimburse at a level that does not exceed the capped fee-for-service schedule that is adopted by the Arizona health care cost containment system administration pursuant to chapter 29, article 1 of this title and that is in effect at the time the services are delivered.

§ 36-718 Contracting for care of afflicted persons

The director may contract for the care of any afflicted person. These contracts shall provide that appropriated monies may be used only when monies from medical insurance, if any, of an individual are exhausted or insufficient to purchase the medical or institutional care the afflicted person requires.

§ 36-721 Rules

The director shall adopt rules to:

1. Prescribe reasonable and necessary measures for the submission of tuberculosis reports and statistics from counties.

2. Prescribe reasonable and necessary measures regarding standards of medical care to be used by health care providers, agencies and institutions caring for afflicted persons.

3. Prescribe necessary and reasonable measures not in conflict with law for the enforcement of the provisions of this article.

4. To enforce this article as necessary.

§ 36-723 Investigation of tuberculosis cases

A. When a local health officer is notified that an afflicted person is within the officer's jurisdiction, the local health officer shall immediately initiate an investigation. In performance of the duty to prevent or control tuberculosis, the tuberculosis control officer or local health officer at reasonable times and within reasonable limits may enter and inspect:

1. A public place in the performance of that person's duty to prevent or control tuberculosis. For the purposes of this paragraph, "public place" means all or any portion of an area, lands, building or other structure that is generally open to the public or to which the public has access and is not used primarily for private residential purposes.

2. Any public or commercial means of transportation or common carrier, including a vehicle, watercraft or aircraft in the performance of that person's duty to prevent or control tuberculosis.

3. Private property and premises to locate and inspect persons who may be afflicted persons. The tuberculosis control officer or the local health officer shall first identify the officer to an occupant of the building or premises and shall seek the consent of an adult occupant to enter the building or premises to enforce the provisions of this article. If consent is refused or if it is not possible to reasonably obtain consent, the tuberculosis control officer, the local health officer or a designated representative may obtain a search warrant to enter the building or premises to locate the afflicted person and to inspect the building or premises for other persons who may be at risk of exposure to active tuberculosis. The scope of the search shall be limited to those areas in which the afflicted person or other persons who may be at risk of exposure to active tuberculosis may reasonably be found. Any search warrant sought by the tuberculosis control officer or local health officer shall be obtained in compliance with section 13-3912.

B. A local health officer who conducts an investigation pursuant to this article shall immediately notify the tuberculosis control officer of the existence and nature of the disease and of the measures taken to control tuberculosis. The local health officer shall keep the tuberculosis control officer informed of the prevalence of the disease as prescribed by the department.

C. The tuberculosis control officer may take charge of the investigation and suppression of a suspected or actual case, outbreak or epidemic of tuberculosis if the officer reasonably believes that the public health and welfare require this action. In that event the control officer or the control officer's designee has exclusive authority over the case, outbreak or epidemic.

D. A treating, screening or attending health care provider as defined in section 36-661, a clinical laboratory as defined in section 36-451 or an operator of a homeless shelter who knows of an afflicted person shall notify the tuberculosis control officer or the local health officer and cooperate in any investigation conducted as a result of the notification. The notification shall include, if known, the name, address and physical location of an afflicted person. If the person reporting is a licensed physician, the physician shall report on the condition of the afflicted person and the status of the disease as often as required by the tuberculosis control officer or the local health officer.

E. An institution or health care provider shall promptly report to the tuberculosis control officer or the local health officer if an afflicted person ceases or refuses to accept treatment or fails or refuses to comply with medical recommendations for voluntary examination, isolation, monitoring, quarantine or treatment for active tuberculosis. The initial disease notification report and subsequent reports shall include if known the afflicted person's name, address and physical location, date of birth, tuberculin skin test results and pertinent radiologic, microbiologic and pathologic reports, whether final or pending, and any other information as required by the tuberculosis control officer or the local health officer.

§ 36-724 Voluntary control measures

If, as a result of an investigation or as a result of any report required by this article, the tuberculosis control officer or local health officer believes someone is an afflicted person, the tuberculosis control officer, local health officer or designee shall encourage the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian to accept or consent to voluntary control measures and voluntary treatment to meet the minimum requirements prescribed by the department.

§ 36-725 Orders to cooperate; emergency custody

A. If the tuberculosis control officer or the local health officer knows or has reasonable grounds to believe someone is an afflicted person who endangers another person or the community and the afflicted person fails or refuses to comply with voluntary examination, monitoring, treatment, isolation or quarantine, the tuberculosis control officer or the local health officer shall issue a written order to cooperate to the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian that requires the afflicted person to cooperate with all intervention efforts to prevent and control the transmission of the disease. The order may require the afflicted person to participate in education, counseling, examination, medical treatment and supervision programs and to undergo medical tests for monitoring and to verify the afflicted person's status.

B. In urgent circumstances an order to cooperate may be an oral statement followed by the issuance of a written order by the end of the next business day. For the purposes of this subsection, "urgent circumstances" means those situations when the tuberculosis control officer or the local health officer determines the issuance of a written order to be reasonably impractical due to circumstances beyond the control of the officer, including inaccessibility, dangerous conditions or the threat of physical violence.

C. An order to cooperate shall be individual and specific and shall not be issued to a class of persons. The order shall be served on the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian by a person who is employed by or under contract to the department, the tuberculosis control officer or the local health officer or by any sheriff, peace officer or person authorized to serve process. If personal service cannot be performed despite the exercise of due diligence, the order may be served by certified mail, return receipt requested. An affidavit of service that details the procedures followed in serving the order shall be prepared and maintained in the case file of the tuberculosis control officer or the local health officer.

D. An order to cooperate issued pursuant to this section shall include a statement that, unless the afflicted person complies with the actions required in the order, the tuberculosis control officer or the local health officer may order the afflicted person to be taken into emergency custody and shall seek a court order for compulsory examination, monitoring, treatment, isolation or quarantine. The order to cooperate shall also state that if a court order is sought, the afflicted person to whom the order is issued has the right to notice and a hearing and other rights as provided by law.

E. If the afflicted person refuses to comply with an order issued pursuant to this section or if the tuberculosis control officer or local health officer knows that an afflicted person has previously failed or refused to comply with an appropriate prescribed course of medication, treatment or monitoring, and if the tuberculosis control officer or the local health officer has reasonable grounds to believe that the afflicted person poses a substantial danger to another person or the community and that emergency custody is necessary to prevent a substantial danger to another person or the community, the tuberculosis control officer or the local health officer may issue an emergency custody order directing a sheriff or law enforcement officer to take the afflicted person into custody, to take precautions reasonable and necessary under the circumstances to protect the health of law enforcement officers and to oversee and ensure the transport of the afflicted person to an institution or facility specified in the order. If the afflicted person's condition or the institution's or facility's location or hours make transportation impracticable, the afflicted person shall be transported to an institution or facility designated by the department, the tuberculosis control officer or the local health officer. The order may be an oral order followed by the issuance of a written order by the end of the next business day. The receiving institution or facility shall provide suitable housing and care of the afflicted person. At the option of the tuberculosis control officer or the local health officer, an afflicted person may be transported by a health care provider, emergency medical services personnel, a physician, ambulance personnel, an ambulance service, guardian, conservator, parent, custodian, relative or friend to a designated institution or facility. A sheriff or law enforcement agency shall maintain custody of the afflicted person until the afflicted person is delivered to the institution or facility specified in the order or to an alternate institution or facility approved by the department, the tuberculosis control officer or the local health officer.

F. The admitting officer of an institution or facility that receives an afflicted person pursuant to subsection E of this section shall admit the afflicted person as an emergency patient and shall perform an examination to determine if the afflicted person must be isolated.

G. An afflicted person admitted pursuant to an emergency custody order shall be released from custody if the medical director of the receiving institution or facility, with the advice and consent of the tuberculosis control officer or a local health officer, determines that the afflicted person is any of the following:

1. Not afflicted with active tuberculosis.

2. Not a danger to another person or to the community and release is appropriate.

3. Qualified for release as a voluntary patient.

H. If an afflicted person is admitted pursuant to an emergency custody order, the tuberculosis control officer, the local health officer or a designated legal representative shall file a petition for public health protection within three business days after the detention unless the afflicted person has been accepted as a voluntary patient. The petition shall conform to the requirements of section 36-726.

I. At the time an afflicted person is taken into emergency custody pursuant to this section, the tuberculosis control officer or local health officer, within the limits of due diligence, shall promptly notify the afflicted person's physician, parent or guardian or an adult member of the afflicted person's family of the detention. The notification shall include the location of the detention, the terms and conditions of custody and the authority that ordered the afflicted person's detention. An afflicted person detained under this section or, if a minor or incapacitated person, the afflicted person's parent or guardian shall be informed by the tuberculosis control officer or the local health officer of the afflicted person's rights under this article, including the right to consult with an attorney and the right to have an attorney appointed by the court if the afflicted person cannot afford to employ an attorney. The afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian shall also be advised that if a petition for public health protection is filed the court shall appoint an attorney to consult with and to represent the afflicted person if the afflicted person cannot afford to employ an attorney.

J. If the afflicted person is a minor or incapacitated person, the tuberculosis control officer or local health officer shall use reasonable efforts to locate, contact and confer with a parent or guardian prior to initiating an intervention pursuant to this article.

K. In the event a parent or guardian of an afflicted person who is a minor or an incapacitated person cannot be located or the parent or guardian is unwilling to consent to a recommended intervention pursuant to this article, the tuberculosis control officer or local health officer, for the purpose of protecting the public health, may initiate any intervention that does not prescribe medical treatment for the minor or the incapacitated person unless medical treatment is otherwise authorized by section 14-5209, 14-5312, 44-132 or 44-133.

L. A petition for public health protection shall be filed with the clerk of the superior court within three business days after the afflicted person's emergency detention authorized pursuant to an order of the tuberculosis control officer or the local health officer. A petition filed pursuant to this subsection shall conform to the requirements of section 36-726. If a petition for public health protection is not filed within three business days after the detention, the afflicted person shall be immediately released from custody. An afflicted person who is released for this reason shall not be returned to emergency custody by a subsequent order unless the tuberculosis control officer or the local health officer first obtains an order from the superior court that permits detention pursuant to this article.

M. This section does not allow a private or public facility or agency to forcibly or involuntarily administer medications to an afflicted person unless authorized by the written order of the superior court pursuant to this article or as otherwise permitted by law.

§ 36-726 Petition for court ordered examination, monitoring, treatment, isolation or quarantine

A. The tuberculosis control officer, the local health officer or a designated legal representative may petition the superior court for court ordered examination, monitoring, treatment, isolation or quarantine of an afflicted person who presents a substantial danger to another person or to the community and who has failed to comply with a voluntary treatment plan or a written order to cooperate. The petition may be brought in the county where the afflicted person resides or is physically located. The petition shall be in the form and manner approved by the director.

B. The petition shall include:

1. The afflicted person's name, address, date of birth and physical location or last known address. The petitioner may refer to the afflicted person by a pseudonym if specifically requested by the afflicted person.

2. A statement containing the grounds and underlying facts demonstrating that the person is an afflicted person.

3. A statement that the afflicted person has failed to comply with a voluntary treatment plan or an order to cooperate or has a history of noncompliance with an appropriate prescribed course of medication or other interventions.

4. A statement containing the grounds and underlying facts demonstrating that the afflicted person presents a substantial danger to another person or to the community.

5. The least restrictive alternatives to court ordered examination, monitoring, treatment, isolation or quarantine that are appropriate or available.

6. A statement identifying the afflicted person as a minor or an incapacitated person, if applicable, and any facts that could assist the court to determine if the provisions of section 36-730 apply.

C. If the petitioner determines that the afflicted person's health is likely to deteriorate before a court hearing can begin, the petition shall include a statement containing the afflicted person's current clinical condition and a request for an immediate order from the court authorizing the administration of medically necessary treatment to preserve the afflicted person's medical condition before a hearing on the petition.

D. The petitioner shall inform the court when the afflicted person's medical condition may require the court to adjust the conditions and circumstances to accommodate the afflicted person's condition pursuant to section 36-725.

E. The petition shall be accompanied by the affidavit or affidavits of the person who conducted the investigation and by the affidavit or affidavits of the petitioner or intervenors. The affidavits shall detail the evidence that indicates that the person is an afflicted person and evidence that indicates that the afflicted person is a substantial danger to another person or to the community. The petition shall include a summary of the facts that support the allegations of the petition.

F. The petition shall request the court to issue an immediate order authorizing the compulsory detention and continued detention of the afflicted person in a designated facility for supervised monitoring, treatment, isolation or quarantine pending a detention hearing on the petition for public health protection. This detention hearing shall be conducted within fifteen days after a petition for public health protection is filed in the superior court.

G. Before the superior court has an opportunity to rule on the petition's merits, the court may order the immediate or continued detention of the afflicted person in an institution approved by the department, the tuberculosis control officer or the local health officer if the court determines that there is reasonable cause to believe that the afflicted person is likely to be a substantial danger to another person or to the community.

H. If the court orders that the afflicted person be immediately detained, the court shall issue orders necessary to provide for the apprehension, transportation and detention of the afflicted person pending the outcome of the detention hearing and shall provide notice of detention to the afflicted person's physician, or, if the afflicted person is a minor or an incapacitated person, the afflicted person's parent or guardian, or if none, the next of kin. The court shall appoint an attorney for the afflicted person if one has not been appointed.

I. If after reviewing the petition and supporting documents and other evidence the court determines that the petition and supporting documentation and evidence submitted to the court do not support a finding that the person is an afflicted person or is a substantial danger to another person or the community, the court shall issue a written order to release the person as soon as reasonably possible.

J. If after a petition has been filed and before the hearing the petitioner or the medical director of the receiving institution, with the advice and consent of the tuberculosis control officer or local health officer, determines that the person is not an afflicted person, the petitioner shall withdraw the petition and the petitioner or the medical director of the receiving institution shall discharge the person as soon as reasonably possible.

K. If after a petition has been filed and before the hearing the petitioner or the medical director of the receiving facility, with the advice and consent of the tuberculosis control officer or the local health officer, determines that the afflicted person will voluntarily comply with the orders of the tuberculosis control officer or the local health officer, the petitioner may request the court to hold the petition in abeyance pending satisfactory compliance by the afflicted person with the terms of the voluntary treatment plan. The court shall not hold the petition in abeyance for longer than six months. Prior to the end of six months, the petitioner may request the court to continue holding the petition in abeyance for a period of time specified by the court.

L. A detention hearing shall be held within fifteen days after the petition is filed with the clerk of the superior court unless:

1. The court determines for good cause shown that a continuance of the detention hearing is necessary in the interests of public health. For the purposes of this paragraph, "good cause" includes the unavailability of necessary witnesses or that additional time is necessary to receive and interpret laboratory test results.

2. The afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian, on consultation with an attorney, determines that it would be in the afflicted person's best interest to request a continuance.

M. A continuance granted to any party by the court pursuant to subsection L of this section shall not exceed thirty days unless the parties agree to an additional continuance.

N. The purpose of a detention hearing is to determine if the afflicted person has tuberculosis. The burden of proof is on the petitioner to prove by clear and convincing evidence that detention is necessary because the person is an afflicted person and is a substantial danger to another person or to the community.

O. At any time before the hearing the department may intervene as a party to any proceedings pursuant to this section by filing a written notice of intervention with the clerk of the superior court in the county in which the petition is filed. The intervenor may cross-examine any witnesses presented by the other parties, subpoena and present witnesses of its own, including physicians and infectious disease experts, and present evidence. On stipulation with all parties or on order of the court, the intervenor may have physicians conduct physical examinations of the afflicted person and offer testimony as to whether the person has active tuberculosis or is a substantial danger to another person or to the community and offer testimony as to the least restrictive examination, treatment, monitoring, isolation or quarantine alternatives available to the court.

P. Within five days after the filing of a petition for public health protection, the petitioner shall serve on the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian a copy of the petition and affidavits in support of it and the notice of the hearing. The notice shall inform the afflicted person of the purpose of the hearing and the right to an attorney. If the afflicted person has not employed an attorney, the court shall appoint an attorney at least seven days before the hearing. The notice shall fix the date, time and place for the hearing. The notice requirements of this section cannot be waived.

Q. At least five days before the court conducts the hearing on the petition or within a reasonable time after the appointment of a court appointed attorney, copies of the petition, affidavits in support of it, the notice of the hearing, the investigation reports, the afflicted person's medical records and copies of other exhibits shall be made available by the petitioner to the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian or that person's attorney for examination and reproduction.

R. A person has the right to have an evaluation performed by an independent physician. This evaluation shall include a physical examination and laboratory analysis. If the afflicted person is unable to afford an examination the court shall appoint an independent evaluator acceptable to the afflicted person from a list of licensed physicians who are willing to accept court appointed evaluations. The afflicted person may require the independent physician who performed the evaluation to appear as a witness at a hearing conducted pursuant to this section.

§ 36-727 Hearings; procedure; confidentiality

A. The afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian and that person's attorney have the right to be present at all hearings, subject to any conditions or procedures that are deemed appropriate or necessary by order of the court to protect the health and safety of all participants. The afflicted person may waive any appearance before the court.

B. If the afflicted person is unable or unwilling to be present at the hearing or the hearing cannot be reasonably conducted where the afflicted person is being treated or confined or cannot be reasonably conducted in the afflicted person's presence, the court shall enter a finding and may proceed with the hearing on the merits of the petition.

C. The court may impose conditions or procedures that it deems necessary to protect the health and safety of all participants in the hearing and to ensure humane treatment with due regard to the comfort and safety of the afflicted person and others. These measures may include video or telephonic conference appearances. If necessary the court shall provide language interpreters and persons skilled in communicating with vision impaired and hearing impaired persons pursuant to applicable law.

D. Parties to the proceedings may present evidence and subpoena and cross-examine witnesses. The evidence presented may include the testimony of experts on infectious diseases or public health matters or a physician who performed an examination or evaluation of the afflicted person. The petitioner may prove its case on the affidavit or affidavits filed in support of the initial petition. The clinical record of the afflicted person for the current admission shall be available and may be presented in full or in part as evidence at the request of the court, the afflicted person or the afflicted person's attorney or any party in interest.

E. At the hearing the court shall be advised of any drugs known to have been administered to the afflicted person before the hearing that would affect the afflicted person's judgment or behavior.

F. Persons appointed to conduct an examination and evaluation of the afflicted person shall make their reports in writing to the court. The reports shall include a recommendation as to the least restrictive alternative measures available to the court.

G. A verbatim record of all proceedings under this section shall be made by stenographic or electronic means. The stenographic notes or electronic tape shall be retained as provided by statute.

H. The court hearing shall not be open to the public and all records, notices, exhibits and other evidence are confidential and shall not be released to the public. The court may order any portion released or a public hearing to be held on a request from the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian or the afflicted person's attorney. The court's records and exhibits are available to the petitioner, the afflicted person, the department, the tuberculosis control officer, the local health officer or a legal representative of any of these persons or agencies.

I. An afflicted person who is ordered by the court to undergo examination, monitoring, treatment, isolation or quarantine or, if a minor or incapacitated person, the afflicted person's parent or guardian may request a certified transcript of the hearing. To obtain a copy the person shall pay for the transcript or shall file an affidavit that the afflicted person cannot afford to pay for a transcript. If the affidavit is found true by the court, the court shall charge the expense of the transcript to the county in which the proceedings were held. If an intergovernmental agreement by the counties has required an evaluation in a county other than that of the afflicted person's residence, this expense may be charged to the county of the afflicted person's residence or in which the afflicted person was found before the evaluation.

§ 36-728 Judicial action

A. If the court finds by clear and convincing evidence that a person is an afflicted person and presents a substantial danger to another person or to the community, the court shall order the afflicted person to do any one or more of the following pursuant to a written treatment plan developed or submitted by the tuberculosis control officer or the local health officer and approved by the court:

1. Participate in a designated education program.

2. Participate in a designated counseling program.

3. Participate in a designated treatment program.

4. Undergo medically accepted tests to verify the status of the afflicted person.

5. Undergo a program of directly observed therapy.

6. Participate in a program to notify or appear before designated health officials for verification of status, testing or other purposes consistent with monitoring.

7. Comply with an order that the afflicted person refrain from conduct that is a health threat to others or to the community.

8. Comply with an order that the afflicted person undergo isolation or quarantine at an approved facility, location or setting for the period and under the conditions set by the court and as approved by the department, the tuberculosis control officer or the local health officer.

9. Comply with an order that the afflicted person be committed to an appropriate facility for the period and under the conditions set by the court and as approved by the department, the tuberculosis control officer or the local health officer.

10. Comply with any other order the court determines is necessary and appropriate.

B. The court may approve the afflicted person's participation in a voluntary treatment program and may approve and order participation in a voluntary program under the terms prescribed by the court pursuant to this section. A person who accepts a voluntary treatment plan remains under the jurisdiction of the court for the purposes of court ordered examination, treatment, monitoring, isolation or quarantine. The terms prescribed by the court may incorporate the terms of a voluntary treatment plan that shall include provisions for the medically successful complete course of antituberculosis treatment.

C. The court shall order the least restrictive measures that are necessary for the examination, treatment, monitoring, isolation or quarantine of the afflicted person and that will effectively protect the public health and provide appropriate care for the afflicted person. In ordering the least restrictive measures necessary, the court shall also consider input from an afflicted person's parent or guardian, if the afflicted person is a minor or incapacitated person.

D. If the court enters an order pursuant to this section it shall designate a facility or program to supervise the afflicted person and administer the court's order.

E. The director of a facility or program assigned by the court shall only use the services of any person, institution or program that has agreed to provide these services in the afflicted person's case and only if the local health agency or department determines that the person, institution or program is competent to do so.

F. The person, facility or program assigned to supervise the afflicted person pursuant to the court's order issued pursuant to this section shall be notified at least three days before a referral. The petitioner, the tuberculosis control officer or the local health officer recommending the referral and the person, institution or program shall share relevant information about the afflicted person to promote the health and safety of the public and to provide effective intervention and continuity of treatment.

G. On a motion by the director of the afflicted person's assigned institution or program or on a motion by the petitioner, the tuberculosis control officer or the local health officer, the court after a hearing may amend or alter its original order if it determines that any of the following is true:

1. The afflicted person is not complying with the terms of its original order.

2. The designated treatment plan is no longer appropriate.

3. Further observation, examination, treatment, isolation or quarantine is required.

H. If an afflicted person refuses to comply with any order or amended order issued pursuant to this section, the court may issue additional orders necessary to address and correct the afflicted person's noncompliance and may direct a sheriff or law enforcement officer, on the request of the tuberculosis control officer or local health officer, to take the afflicted person into custody and to oversee and ensure the transport of the person to a designated institution or program. At the option of the tuberculosis control officer or the local health officer, an afflicted person may be transported by a health care provider, emergency medical services personnel, a physician, ambulance personnel, an ambulance service, guardian, conservator, parent, custodian, relative or friend to a designated institution or facility. A sheriff or law enforcement agency shall maintain custody of the afflicted person until the afflicted person is delivered to the institution or facility specified in the order or to an alternate institution or facility approved by the department, the tuberculosis control officer or the local health officer.

I. On issuance of an order or an amended order issued pursuant to this section, the afflicted person shall be informed of the right to appeal and the right to consult with an attorney.

J. If any afflicted person who is under court ordered examination, monitoring, treatment, isolation or quarantine issued pursuant to this article is absent without proper authorization from a designated facility or program or if a court order is amended, rescinded or modified, a sheriff or law enforcement officer may be directed by the tuberculosis control officer or the local health officer to take the afflicted person into custody and to oversee and ensure the transport of the afflicted person to a designated and approved institution or program.

K. The period of court ordered examination, monitoring, treatment, isolation or quarantine does not run during any unauthorized absence from the jurisdiction or from any required monitoring or supervision. The period resumes only on the afflicted person's voluntary or involuntary return to the designated facility or program.

L. Except as provided in this section, court ordered examination, treatment, monitoring, isolation or quarantine shall not exceed three hundred sixty-five days.

§ 36-729 Amended orders for intervention and transport of afflicted persons

A. If the tuberculosis control officer or the local health officer determines that an afflicted person who is not currently detained is in need of immediate and acute intervention or care because the afflicted person's behavior is dangerous to another person or to the community, the tuberculosis control officer or the local health officer may issue a written or oral order to a sheriff or law enforcement officer that requires a health care provider, emergency medical services personnel, a physician, ambulance personnel, an ambulance service, guardian, conservator, parent, custodian, relative or friend to take the afflicted person to a location designated by the tuberculosis control officer or the local health officer. A sheriff or law enforcement agency shall maintain custody of the afflicted person until the afflicted person is delivered to the institution or facility specified in the order or to an alternate institution or facility approved by the department, the tuberculosis control officer or the local health officer.

B. The afflicted person may be confined for not more than three business days after the afflicted person is taken to the institution, pending consideration by the court of an amended order sought under section 36-728, subsection G.

C. The tuberculosis control officer, local health officer or designated legal representative shall file a motion for an amended court order not later than three business days after confinement.

§ 36-730 Appointment of guardian or conservator

A. If the court determines that the afflicted person is or may be in need of a guardian or conservator, or both, it shall order an investigation concerning the need for a guardian or conservator and shall appoint a suitable person or agency to conduct the investigation.

B. If the court finds that the afflicted person needs an immediate guardian or conservator to protect the afflicted person or to carry out alternatives to court ordered examination, treatment, monitoring, isolation or quarantine and there is no person qualified and willing to act in that capacity, the court may appoint a person or the public fiduciary to serve as a temporary guardian or conservator.

§ 36-731 Confinement; selection; jails; prohibition

A. After an afflicted person has been taken into custody pursuant to this article, the tuberculosis control officer or local health officer is responsible for selecting a facility or quarters suitable for the comfortable, safe and humane confinement of the afflicted person, if the person is not otherwise admitted or confined in a health care institution. The tuberculosis control officer or local health officer may authorize a physician, health care provider, emergency medical services personnel, ambulance or ambulance service, guardian, conservator, parent, custodian, relative or friend to transport an afflicted person to a designated institution or facility if the tuberculosis control officer or local health officer determines that the means of transportation are reliable and would not be detrimental to any person's health, safety or welfare. A sheriff or law enforcement agency shall maintain custody of the afflicted person until the afflicted person is delivered to the institution or facility specified in the order or to an alternate institution or facility approved by the department, the tuberculosis control officer or the local health officer.

B. An afflicted person who is not incarcerated on a criminal charge and who is the subject of an order or petition under this article shall not be confined in any prison or jail where those charged with crimes are incarcerated unless the afflicted person represents an immediate and serious danger to the staff or physical facilities of a hospital or any institution to which committed, or unless the afflicted person has failed to obey a court order or has failed to obey a lawful order of the tuberculosis control officer or local health officer issued pursuant to this article and the medical director of the receiving facility or designee has determined that no less restrictive confinement measures are appropriate. The court shall subsequently determine the appropriate level of confinement necessary during this initial consideration of the petition and the request for compulsory detention pursuant to section 36-726, subsection F.

§ 36-732 Early release from court ordered treatment

A. An afflicted person under court ordered examination, treatment, monitoring, isolation or quarantine pursuant to this article may be released before the expiration of the period ordered by the court if the petitioner or the medical director of the designated institution or program upon advice and consent from the tuberculosis control officer or the officer's designee determines through an examination and evaluation of the afflicted person that the afflicted person no longer has active tuberculosis or no longer poses a substantial danger to another person or to the community and that release is deemed appropriate.

B. Notice of the discharge from the institution, facility or program shall be promptly given to the judge of the court that entered the court order. Without further court order the afflicted person may be released or discharged in accordance with the terms set forth in the treatment plan or court order.

C. On a finding of good cause the court may order a further hearing on a motion for early discharge or to amend or modify an existing court order pursuant to an affidavit of the petitioner or intervenor or the afflicted person or the afflicted person's attorney that states the need for further evidentiary hearing and the reasons the hearing is necessary before the time set for the release of the afflicted person.

§ 36-733 Choice of physician and mode of treatment

This article does not allow a private or public facility or agency to restrict an afflicted person's right to choose a physician or to select the mode of treatment within the terms determined by the tuberculosis control officer or the local health officer as available and necessary to protect the health and safety of another person or the community.

§ 36-734 Treatment; exemption

A. An afflicted person is not required to undergo treatment under this article if that person depends exclusively on prayer or spiritual means for healing in accordance with the tenets and practices of a recognized church or religious denomination and claims an exemption on that ground. The requirements of this article regarding compulsory reporting of tuberculosis disease, exclusion from employment or school, monitoring, examination, isolation and quarantine apply if there is clear and convincing evidence that the person is an afflicted person and is a substantial danger to another person or the community.

B. An afflicted person is not required to submit to any medical treatment or to go to or be confined in any hospital or other medical institution, if the afflicted person can be safely examined, monitored, isolated or quarantined in the afflicted person's home or another place that is suitable to the health of the afflicted person, provides appropriate protection to other persons and the community and is approved by either the department, the tuberculosis control officer or a local health officer.

C. This section does not exempt a person from complying with applicable laws regarding sanitation.

§ 36-735 Notification of rights

A. An afflicted person who is ordered to receive court ordered examination, treatment, monitoring, isolation or quarantine pursuant to this article or, if a minor or incapacitated person, the afflicted person's parent or guardian shall be informed in writing of the following rights:

1. The right to appropriate care and treatment in accordance with accepted standards of medical practice and in an appropriate setting consistent with the protection of the afflicted person, the community and the public health.

2. The right not to receive unnecessary or excessive medication.

3. The right to refuse to participate in a research program.

4. A humane treatment environment that provides reasonable protection from harm and appropriate privacy for personal needs.

B. The statement of rights shall be in the afflicted person's primary language, if reasonably possible and, if applicable, shall be provided through means reasonably calculated to communicate with a hearing impaired or visually impaired person.

C. The director of an institution or program that provides care pursuant to this article is responsible for the following:

1. To make reasonable efforts to provide for the care, safety and detention of the afflicted person and adequate security to prevent the afflicted person from leaving the institution or program without its permission or from transmitting the communicable disease to others in the community.

2. The examination and evaluation by a licensed physician at least once every thirty days and as medically necessary.

3. Reports advising the tuberculosis control officer or the local health officer of the status of the afflicted person's disease and the person's compliance with any orders or treatment plan.

4. Adequate prior notification under the circumstances to the tuberculosis control officer or the local health officer of the pending discharge of the afflicted person.

§ 36-736 Administrative procedures act; judicial review of administrative procedures; exemption; appeals

A. Orders of the tuberculosis control officer or local health officer issued pursuant to this article and procedures prescribed by this article are exempt from title 41, chapter 6 and title 12, chapter 7, article 6.

B. An order of the superior court that imposes, denies, modifies, amends or rescinds court ordered examination, treatment, monitoring, isolation or quarantine pursuant to this article may be reviewed at the request of any party in interest by appeal to the court of appeals as prescribed in the Arizona rules of civil procedure or by special action. The court may give scheduling preference to this appeal or special action.

§ 36-737 Violation; classification

A. A treating, screening or attending health care provider as defined in section 36-661, a clinical laboratory as defined in section 36-451 or an operator of a homeless shelter who knowingly fails or refuses to perform a duty or legal responsibility imposed pursuant to this article is guilty of a class 3 misdemeanor.

B. An afflicted person who knowingly or intentionally exposes others to infection is guilty of a class 2 misdemeanor.

C. An afflicted person who leaves or attempts to leave the custody, isolation, quarantine or detention imposed by the superior court or the order of the tuberculosis control officer or local health officer pursuant to this article is guilty of a class 2 misdemeanor.

D. Any person who knowingly obstructs, impairs or hinders an investigation conducted pursuant to this article is guilty of a class 3 misdemeanor.

E. Any person who knowingly makes a false report of tuberculosis to the tuberculosis control officer or the local health officer is guilty of a class 3 misdemeanor.

F. Any person who, without proper authorization, knowingly assists another to be noncompliant with an order issued pursuant to this article is guilty of a class 3 misdemeanor.

§ 36-738 Qualified immunity

Any person or entity that acts pursuant to this article is not subject to civil liability for good faith conduct in following or attempting to follow the requirements of this article. An act is done in good faith under this article if it is reasonable under the circumstances. This section does not apply if the person or entity acting pursuant to this article is guilty of gross negligence or intentional misconduct.

Article 7 Licensing and Regulation of Midwifery

§ 36-751 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

3. "Midwife" means a person who delivers a baby or provides health care related to pregnancy, labor, delivery and postpartum care of the mother and her infant.

§ 36-752 Licensure; exceptions

A. Except as provided in subsection B of this section, no person may act as a midwife without being licensed pursuant to this article.

B. The following persons are exempt from the licensure requirements of this section:

1. A physician licensed pursuant to title 32 who is permitted within his scope of practice to deliver infants.

2. A registered nurse certified by the state board of nursing as a qualified nurse-midwife.

3. A person acting under the direction and supervision of a physician licensed pursuant to title 32 who is permitted within his scope of practice to deliver infants.

4. A student of midwifery in the course of taking an internship, preceptorship or clinical training program, who is under the direction and supervision of a midwife licensed pursuant to this article.

5. A person who has no prearranged agreement to provide delivery assistance, but who delivers a baby as a result of an emergency situation.

6. A mother or father delivering their own infant.

§ 36-753 Application for license as midwife

A person who desires to obtain a license to practice midwifery shall make written application to the director of the department of health services, upon a form to be supplied by the director and shall furnish such information as may be required by the director.

§ 36-754 Licensing of midwives; renewal of license

A. The director shall grant a midwife's license to a person meeting the qualifications prescribed by this article and rules adopted pursuant to this article and paying applicable fees.

B. A license is valid for two years and may be renewed biennially on application to the director and payment of applicable fees.

C. A person shall file an application for renewal at least thirty days and no more than sixty days before the expiration date of the current license.

§ 36-755 Powers and duties of the director

A. The director may adopt rules necessary for the proper administration and enforcement of this article.

B. The director shall, by rule:

1. Define and describe, consistent with this article and the laws of this state, the duties and limits of the practice of midwifery.

2. Adopt standards with respect to the practice of midwifery designed to safeguard the health and safety of the mother and child.

3. Establish the criteria for granting, denying, suspending and revoking a license in order to protect the health and safety of the mother and child.

4. Describe and define reasonable and necessary minimum qualifications for midwives, including:

(a) The ability to read and write.

(b) Knowledge of the fundamentals of hygiene.

(c) The ability to recognize abnormal or potentially abnormal conditions during pregnancy, labor and delivery and following birth.

(d) Knowledge of the laws of this state concerning reporting of births, prenatal blood tests and newborn screening and of the rules pertaining to midwifery.

(e) Education requirements.

(f) Age requirements.

§ 36-756 Grounds for denial of license and disciplinary action; hearing; appeal; civil penalties; injunctions

A. The director may deny, suspend or revoke the license of any midwife who:

1. Violates any provision of this article or the rules adopted under this article.

2. Has been convicted of a felony or a misdemeanor involving moral turpitude.

3. Indulges in conduct or a practice detrimental to the health or safety of the mother and child.

B. The department may deny a license without holding a hearing. An applicant may appeal this decision pursuant to title 41, chapter 6, article 10.

C. The department shall conduct any hearing to suspend or revoke a license in accordance with the procedures established pursuant to title 41, chapter 6, article 10. If the director determines at the conclusion of a hearing that grounds exist to suspend or revoke a license, he may do so permanently or for any period of time he deems appropriate and under any conditions that he deems appropriate. An applicant for licensure or a licensee may appeal the final decision of the director.

D. In addition to other disciplinary action, the director may assess a civil penalty of not more than one hundred dollars for each violation of this article or a rule adopted pursuant to this article as determined by a hearing held pursuant to this section. Each day that a violation continues constitutes a separate offense. The attorney general or the county attorney may bring an action in the name of this state to enforce a civil penalty. The action shall be filed in the superior court or in justice court in the county where the violation occurred.

E. In addition to other available remedies, the director may apply to the superior court for an injunction to restrain a person from violating a provision of this article or a rule adopted pursuant to this article. The court shall grant a temporary restraining order, a preliminary injunction or a permanent injunction without bond. The defendant may be served in any county of this state. The action shall be brought on behalf of the director by the attorney general or the county attorney of the county in which the violation is occurring.

§ 36-756.01 Investigations; right to examine evidence; subpoenas; confidentiality

A. The director may investigate information that indicates that a person is violating this article. In connection with an investigation, the department may examine and copy documents and other physical evidence wherever located that relate to the conduct or competency of a midwife pursuant to the requirements of this article.

B. Pursuant to an investigation or an administrative proceeding, the director may issue subpoenas to compel the testimony of witnesses or to demand the production of relevant documents and other physical evidence. If a person refuses to comply with a subpoena, the director may apply to the superior court for an order to compel compliance.

C. Patient records, including clinical records, medical reports, laboratory statements and reports, files, films and oral statements relating to patient examinations, findings and treatment, that are kept by the director pursuant to an investigation are not available to the public. The director shall keep confidential the names of patients whose records are reviewed during the course of an investigation or hearing.

§ 36-757 Violations; classification

A person is guilty of a class 6 felony who:

1. Obtains a license as a midwife by fraud, intentional misrepresentation or deceit.

2. Performs midwifery without a proper license or after the license has been denied, suspended or revoked.

§ 36-758 Fees

The director, by rule, shall establish and collect nonrefundable fees that do not exceed:

1. Twenty-five dollars for an initial application.

2. Fifty dollars for an initial license.

3. Two hundred fifty dollars for testing.

4. Fifty dollars for license renewal.

5. Ten dollars for a duplicate license.

§ 36-759 Use of title; prohibitions

It is a violation of this article for a person who is not licensed pursuant to this article to use the title "licensed midwife" and the abbreviation "L.M." or to use any other words, letters, signs or figures to indicate that the person is a licensed midwife.

§ 36-760 Persons and acts not affected by this article

The provisions of this article do not apply to a person who provides information and support in preparation for a normal labor and delivery and assists in the delivery of a baby if that person does not do the following:

1. Advertise as a midwife or as a provider of midwife services.

2. Accept any form of compensation for midwife services.

3. Use any words, letters, signs or figures to indicate that the person is a midwife.

Article 7.1 Community Health Workers

§ 36-765 Definitions

In this article, unless the context otherwise requires:

1. "Certified community health worker" means a community health worker to whom the department has issued a certificate to practice as a certified community health worker in this state.

2. "Community health worker" means a nonmedical health worker who serves as a liaison for health and community service providers and enrollees to facilitate access to services and improve the quality of service delivery, including the coordination of services to improve medical and behavioral health outcomes.

3. "Department" means the department of health services.

4. "Director" means the director of the department.

5. "Practice as a certified community health worker" means a community health worker's application of the education, training and experience in the core competencies to effectively provide services to the communities and populations that the community health worker serves through one or more of the community health worker's roles.

§ 36-765.01 Application for certificate; certification; renewal

A. A person may apply to the director for a certificate to practice as a certified community health worker on a form prescribed by the director and shall furnish information required by the director.

B. The director shall grant a community health worker certificate to a person who meets the qualifications prescribed by this article and rules adopted pursuant to this article and who pays the applicable fees.

C. A certificate is valid for two years and may be renewed once every two years by applying to the director and paying the applicable fees.

D. A person shall file an application for renewal at least thirty days and not more than sixty days before the expiration date of the current certificate.

§ 36-765.02 Powers and duties of director; rules

A. The director, by rule, shall:

1. Prescribe the scope of practice and the core competencies of certified community health workers, including skills and areas of knowledge that are essential to bring about expanded health and wellness in diverse communities and to reduce health disparities.

2. Describe and define reasonable and necessary minimum qualifications, including education and training requirements, for certified community health workers.

3. Establish standards and requirements for the establishment of certified community health worker education and training programs in this state.

4. Adopt standards and requirements for the approval or acceptance of continuing education courses and programs for the renewal of a certificate.

5. Establish minimum education, training, experience and other qualifications that a certified community health worker must possess to qualify as a trainer in any education, training or continuing education program for certified community health workers.

6. Establish the criteria for granting, denying, suspending and revoking a certificate in order to protect the health and safety of the public.

B. The director may adopt rules:

1. That are necessary for the proper administration and enforcement of this article.

2. That allow for reciprocity agreements, including with the Indian health service.

C. The director shall waive the minimum training and education requirements for certification for applicants who provide documentation of at least nine hundred sixty hours of paid or volunteer experience providing community health worker services in the core competencies during the previous three years in a licensed health care facility or in the service of a licensed health care provider or a contractor under chapter 29, article 1 of this title.

§ 36-765.03 Denial, suspension or revocation of certificate; disciplinary action; appeal

A. The director may deny, suspend or revoke the certificate of any community health worker who:

1. Violates any provision of this article or rule adopted pursuant to this article.

2. Has been convicted of a felony or a misdemeanor involving moral turpitude.

3. Indulges in conduct or a practice detrimental to the health or safety of the public.

B. The department may deny, suspend or revoke a certificate without holding a hearing. After receiving notification of the denial, suspension or revocation, the applicant may request a hearing to review the denial, suspension or revocation. If requested, the department shall conduct a hearing to deny, suspend or revoke a certificate pursuant to title 41, chapter 6, article 10.

C. If the director determines pursuant to a hearing that grounds exist to deny, suspend or revoke a certificate, the director may do so permanently or for a fixed period of time and may impose conditions as prescribed by rule.

D. A certified community health worker employed by a tribe who violates this section shall be under tribal government jurisdiction. If the worker is determined to have violated this section, the information provided to the director may result in the denial, suspension or revocation of the worker's certification. Internal hearings, appeals or penalties resulting from disciplinary actions by a tribal government are deemed as the final decision in accordance with this section.

§ 36-765.04 Investigations; evidence

The director may investigate information that indicates a person may be violating this article. In connection with an investigation, the director may examine and copy documents and other physical evidence wherever located that relate to the conduct or competency of a community health worker pursuant to the requirements of this article.

§ 36-765.05 Fees; use

The director, by rule, shall establish and collect nonrefundable fees for certification that are consistent with fees that are prescribed pursuant to section 36-1908. The department shall deposit the fees in a segregated account in the health services licensing fund established by section 36-414.

§ 36-765.06 Certification not required

This article does not require community health workers to be certified by the department in order to practice as a community health worker.

§ 36-765.07 Public contracts; no preference

This state and political subdivisions of this state may not provide a preference in awarding a public contract for services provided by a certified community health worker or an entity that employs certified community health workers.

Article 7.2 Doulas

§ 36-766 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department.

3. "Doula" means a trained nonmedical professional who may provide continuous physical, emotional and informational support to families before, during and after childbirth for a period of one year after birth or in the case of loss and who may serve as a liaison between the birth parents and medical and social services staff to improve the quality of medical, social and behavioral outcomes.

4. "Practice as a state-certified doula" means a state-certified doula who provides services in accordance with the core competencies specified by this article and the rules adopted pursuant to this article.

5. "State-certified doula" means a doula to whom the department has issued a certificate to practice as a state-certified doula in this state.

§ 36-766.01 Application for certificate; certification; fingerprint clearance card; renewal; continuing education

A. A person may apply to the director for a certificate to practice as a state-certified doula on a form prescribed by the director and shall furnish the information required by the director.

B. The director shall grant a certificate to a doula who:

1. Meets the qualifications prescribed by this article and rules adopted pursuant to this article.

2. Pays the applicable fees. The director shall prescribe by rule a sliding fee scale for all fees required by this article and rules adopted pursuant to this article.

3. Possesses a valid fingerprint clearance card issued pursuant to title 41, chapter 12, 3.1.

C. A doula certificate is valid for three years and may be renewed every three years by applying to the director and paying the applicable fees.

D. A person shall file an application for renewal at least thirty days and not more than ninety days before the date the current doula certificate expires. A state-certified doula must complete fifteen hours of related continuing education and submit documentation of completion with the renewal application.

§ 36-766.02 Powers and duties of director; rules; waiver

A. The director, by rule, shall:

1. Outline the scope of practice and the core competencies of state-certified doulas regarding the skills and areas of knowledge that are essential to expand health and wellness, to reduce health disparities and to promote culturally relevant practices within diverse communities.

2. Describe and define reasonable and necessary minimum qualifications, including those prescribed in section 36-766.03.

3. Adopt standards and requirements to establish state-certified doula education and training programs in this state.

4. Adopt standards to approve or accept continuing education courses for renewing state-certified doula certificates.

5. Establish criteria for granting, denying, suspending and revoking state-certified doula certificates in order to protect the public health and safety.

B. The director may consult with subject matter experts from an integrated public health program at a higher education institution located in this state regarding the development of rules prescribed by this section.

C. The director may adopt rules:

1. That are necessary to administer and enforce this article.

2. That allow for reciprocity agreements, including with the Indian health service.

D. The director shall waive the minimum training and education requirements for certification for applicants who provide documentation of current certification with a nationally recognized doula organization.

§ 36-766.03 Applicant requirements; education and training; alternate certification

A. An applicant for certification under this article shall do all of the following:

1. Provide one of the following:

(a) Documentation of completing at least thirty hours of in-person instruction or a combination of in-person and online instruction in core competency topics that may include the following:

(i) Entrepreneurship.

(ii) Standards of practice and ethics.

(iii) The childbirth process.

(iv) Parental engagement.

(v) Postpartum care.

(vi) Grief.

(vii) Trauma-informed care.

(viii) Cultural doula practices.

(ix) Anatomy and physiology.

(b) For doulas who are from a community trained in non-western doula practices as determined by the director, documentation confirming that core competencies have been met through culturally specific training or education that is subject to review by the director.

(c) Other related individualized or experiential training or education that is subject to review by the director.

2. Provide department-approved written documentation of both of the following:

(a) Observing at least one birth after training is completed.

(b) Attending at least three births while serving as the primary doula support person and receiving a department-approved and acceptable evaluation from the laboring mother and from the medical provider who assisted the laboring mother.

3. Complete instruction on first aid and cardiopulmonary resuscitation.

4. Submit a code of ethics agreement as prescribed by the director.

B. An individual who does not qualify for state certification under this article but who has been practicing as a doula in this state for at least five years before September 29, 2021 may apply to the department for certification if the individual submits all of the following:

1. Proof of current certification from a nationally recognized doula organization in lieu of proof of the minimum qualifications prescribed in this article and rules adopted pursuant to this article.

2. Three letters of recommendation from health care professionals who have worked with the applicant within the preceding two years and can attest to the applicant's competency in providing doula services.

§ 36-766.04 Denial, suspension or revocation of certificate; hearings; tribal jurisdiction

A. The director may deny, suspend or revoke the certificate of any state-certified doula who:

1. Violates any provision of this article or rule adopted pursuant to this article.

2. Indulges in conduct or a practice that is detrimental to the public health or safety.

B. The department may deny, suspend or revoke a state-certified doula certificate. After receiving notification of the denial, suspension or revocation, the applicant or state-certified doula may request a hearing to review the denial, suspension or revocation and, if requested, the department shall conduct the hearing pursuant to title 41, chapter 6, article 10.

C. A state-certified doula who is employed by an Indian tribe and who violates this section shall be under tribal government jurisdiction. If the state-certified doula is determined to have violated this section, the information provided to the director may result in the denial, suspension or revocation of the state-certified doula's certification. Internal hearings, appeals or penalties resulting from disciplinary actions by a tribal government are deemed to be the final decision in accordance with this section.

§ 36-766.05 Investigations; evidence

The director may investigate information that indicates a person may have violated or may be violating this article. In connection with an investigation, the director may examine and copy documents and other physical evidence wherever located that relate to the conduct or competency of a state-certified doula pursuant to the requirements of this article.

§ 36-766.06 Fees

The director, by rule, shall establish and collect nonrefundable fees for state-certified doula certification that are consistent with fees prescribed pursuant to section 36-1908. The department shall deposit the fees in a segregated account in the health services licensing fund established by section 36-414.

§ 36-766.07 Certification not required

This article does not require a doula to be certified by the department in order to practice as a doula in this state.

§ 36-766.08 Public contracts; preference prohibited

This state and any political subdivision of this state may not provide a preference in awarding a public contract for state-certified doula services or an entity that employs state-certified doulas.

§ 36-766.09 Doula community advisory committee; members; duties

A. The doula community advisory committee is established consisting of at least nine doulas, including those who represent diverse and underrepresented communities, who are appointed by the director. The term for an advisory committee member is two years.

B. The director shall consult with the advisory committee regarding implementing this article and the rules adopted pursuant to this article. The advisory committee shall:

1. Develop a list of acceptable organizations that provide certification based on the minimum qualifications and core competencies prescribed in this article and rules adopted pursuant to this article.

2. Identify classes that address culturally relevant doula practices.

3. Review rules and advise the director of any necessary updates.

Article 8 Tobacco Tax Funds

§ 36-770 Tobacco products tax fund

(Caution: 1998 Prop. 105 applies)

A. The tobacco products tax fund is established consisting of revenues deposited in the fund pursuant to section 42-3251.01 and interest earned on those monies. The Arizona health care cost containment system administration shall administer the fund.

B. Forty-two cents of each dollar in the fund shall be deposited in the proposition 204 protection account established by section 36-778.

C. Five cents of each dollar in the fund shall be deposited in the health research fund established by section 36-275.

D. Twenty-seven cents of each dollar in the fund shall be deposited in the medically needy account established by section 36-774.

E. Twenty cents of each dollar in the fund shall be deposited in the emergency health services account established by section 36-776.

F. Four cents of each dollar in the fund shall be deposited in the health care adjustment account established by section 36-777.

G. Two cents of each dollar in the fund shall be deposited in the health education account established by section 36-772.

H. Except as provided in section 36-776, monies in the fund:

1. Are continuously appropriated.

2. Do not revert to the state general fund.

3. Are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

§ 36-771 Tobacco tax and health care fund

A. The tobacco tax and health care fund is established. The fund consists of all revenues deposited in the fund pursuant to sections 42-3252 and 42-3302 and interest earned on those monies. On notice from the department, the state treasurer shall invest and divest monies in the fund and in all accounts in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

B. The fund shall be deposited in four separate accounts and shall be administered pursuant to the provisions of and for the purposes prescribed by this article.

C. Except as provided by subsection F of this section, the fund and its accounts are not subject to appropriation. Expenditures from each account are not subject to additional approval, notwithstanding any statutory provision to the contrary.

D. Monies in the fund and its accounts:

1. Do not revert to the state general fund under any circumstances.

2. Are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

E. Monies in the fund:

1. Shall be spent only for purposes that are authorized by this article.

2. Shall not be used for expenditures on capital construction projects, lobbying activities involving elected officials or political campaigns for individuals or any ballot proposal.

F. Notwithstanding any other provision of this section, the legislature may appropriate monies from the fund to the department of revenue for the reasonable administration and enforcement costs of the department in administering the levy of taxes that are dedicated to the fund pursuant to section 42-3252. The appropriation shall be applied before monies are deposited in the fund accounts. Any unused monies at the end of the fiscal year revert to the fund.

§ 36-772 Health education account; audit; reports

(Caution: 1998 Prop. 105 applies)

A. In addition to the monies deposited pursuant to section 36-770, twenty-three cents of each dollar in the tobacco tax and health care fund shall be deposited in the health education account for programs for the prevention and reduction of tobacco use, through public health education programs, including community based education, cessation, evaluation and other programs to discourage tobacco use among the general population as well as minors and culturally diverse populations.

B. The department of health services shall administer the account.

C. Except as provided in subsection D of this section, monies that are deposited in the health education account:

1. Shall be used to supplement monies that are appropriated by the legislature for health education purposes and shall not be used to supplant those appropriated monies.

2. Shall be spent for the following purposes:

(a) Contracts with county health departments, qualifying community health centers as defined in section 36-2907.06, Indian tribes, accredited schools, nonprofit organizations, community colleges and universities for education programs related to preventing and reducing tobacco use.

(b) Administrative expenditures related to implementing and operating a program developed pursuant to subdivision (a) to award and oversee contracts for education programs including obtaining expert services to assist in evaluating requests for proposals and responses to those requests.

(c) Department of health services expenditures for developing and delivering education programs that are designed to prevent or reduce tobacco use including radio, television or print media costs. When contracting for the development and production of original advertising materials, the department shall require advertising, production and editorial firms to use their best efforts to employ or contract with residents of this state to manage, produce and edit the original advertising. The department shall report annually by December 1 to the governor, the president of the senate and the speaker of the house of representatives regarding instances when the department did not employ or contract with residents of this state, including the reasons for failing to do so.

(d) The evaluations required by subsection F of this section.

D. The department of health services shall use monies deposited in the account pursuant to section 36-770 for the prevention and early detection of the four leading disease related causes of death in this state, as periodically determined by the centers for disease control and prevention, or its successor agency. Initially, these are cancer, heart disease, stroke and pulmonary disease. The monies shall only be used to supplement monies that are appropriated by the legislature and shall not be used to supplant those appropriated monies.

E. Monies from the health education account shall not be spent for lobbying activities involving elected officials or political campaigns for individuals or any ballot measure.

F. The department of health services shall evaluate the programs established pursuant to subsection C, paragraph 2 of this section and shall biennially submit a written report of its findings to the governor, the president of the senate and the speaker of the house of representatives. The department of health services shall provide a copy of each report to the secretary of state and the director of the Arizona state library, archives and public records. The department of health services shall submit its first report on or before November 15, 2004. The first report shall include data beginning in fiscal year 2001-2002.

§ 36-773 Health research account

A. Five cents of each dollar in the tobacco tax and health care fund shall be deposited in the health research account for research on preventing and treating tobacco-related disease and addiction.

B. The department of health services shall administer the account.

C. Monies that are deposited in the health research account shall be used only to supplement monies that are appropriated by the legislature for Alzheimer's disease research and other health research purposes and shall not be used to supplant those appropriated monies.

§ 36-774 Medically needy account; definition

A. Seventy cents of each dollar in the tobacco tax and health care fund shall be deposited in the medically needy account to provide health care or behavioral health care services to persons who are determined to be eligible for services pursuant to section 36-2901 or 36-2901.01 as provided by the Arizona health care cost containment system pursuant to chapter 29, article 1 of this title, or any other statute, or any expansion of that program or any substantially equivalent or expanded successor program established by the legislature providing health care or behavioral health care services to persons who cannot afford those services and for whom there would otherwise be no coverage. These services shall include preventive care and the treatment of catastrophic illness or injury, as provided by the Arizona health care cost containment system.

B. The Arizona health care cost containment system administration or any successor shall administer the account.

C. Monies that are deposited in the medically needy account:

1. Shall only be used to supplement monies that are appropriated by the legislature for the purpose of providing levels of service that are established pursuant to chapter 29, article 1 of this title to eligible persons as defined in section 36-2901 or any expansion of those levels of service, or for any successor program established by the legislature providing levels of service that are substantially equivalent to, or expanding, those provided pursuant to chapter 29, article 1 of this title to eligible persons.

2. Shall not be used to supplant monies that are appropriated by the legislature for the purpose of providing levels of service established pursuant to chapter 29, article 1 of this title.

D. For purposes of this section, "levels of service" means the provider payment methodology, eligibility criteria and covered services established pursuant to chapter 29, article 1 of this title in effect on July 1, 1993.

§ 36-775 Adjustment account

A. Two cents of each dollar in the tobacco tax and health care fund shall be deposited in the adjustment account for transfer of appropriate amounts to the corrections fund established by section 41-1641 to compensate for decreases in the corrections fund resulting from lower tobacco tax revenues available under section 42-3104 as a result of the levy of luxury taxes that are dedicated to the tobacco tax and health care fund pursuant to section 42-3252. Any monies in the adjustment account in excess of the amount needed for the adjustment revert to the tobacco tax and health care fund for distribution in equal proportions to the accounts described under sections 36-772, 36-773 and 36-774.

B. The department of revenue shall administer the adjustment account.

§ 36-776 Emergency health services account

(Caution: 1998 Prop. 105 applies)

A. The emergency health services account is established consisting of monies deposited pursuant to section 36-770. The Arizona health care cost containment system administration shall administer the account. The administration shall use account monies solely for the reimbursement of uncompensated care, primary care services and trauma center readiness costs.

B. Monies in the account are subject to legislative appropriation. Any monies remaining unexpended and unencumbered on June 30 of each year in the account revert to the proposition 204 protection account established by section 36-778.

§ 36-777 Health care adjustment account

(Caution: 1998 Prop. 105 applies)

A. The health care adjustment account is established consisting of monies deposited pursuant to section 36-770. The department of revenue shall administer the account.

B. The department of revenue shall transfer appropriate amounts of account monies to the health education account established by section 36-772, the health research account established by section 36-773 and the medically needy account established by section 36-774 to compensate for decreases in these accounts due to lower tobacco tax revenues available under section 36-771 as a result of the levy of luxury taxes that are dedicated to the tobacco products tax fund pursuant to section 42-3251.01.

C. Any monies in the account in excess of the amount needed for the adjustments prescribed in this section revert to the tobacco products tax fund for distribution in equal amounts to the accounts described in section 36-770, subsections B, C, D and E.

§ 36-778 Proposition 204 protection account

(Caution: 1998 Prop. 105 applies)

A. The proposition 204 protection account is established consisting of monies deposited pursuant to section 36-770. The Arizona health care cost containment system administration shall administer the account.

B. The administration shall use account monies to implement and fund programs and services required as a result of the expanded definition of an eligible person prescribed in section 36-2901.01.

C. The administration shall spend the balance of monies in the account before it spends monies from the Arizona tobacco litigation settlement fund established by section 36-2901.02.

§ 36-779 Tobacco revenue use spending and tracking commission

A. The president of the senate and the speaker of the house of representatives shall establish a tobacco revenue use spending and tracking commission.

B. The president of the senate and the speaker of the house of representatives shall each appoint six members to the commission who have expertise in any of the following:

1. Public health services.

2. Programs relating to tobacco use cessation or tobacco addiction.

3. School-based tobacco education programs.

4. Marketing or public relations.

5. Research and evaluation of public health programs.

C. The speaker of the house of representatives and the president of the senate shall each appoint one member of the house of representatives and the senate respectively to serve as nonvoting advisory members of the commission whose presence is not counted for purposes of determining the presence of a quorum.

D. Commission members serve at the pleasure of their respective appointing officer.

E. Commission members are not eligible to receive compensation or reimbursement of expenses.

F. The commission shall advise and consult with the department of health services on the goals, objectives and activities of programs that receive monies pursuant to section 36-772.

G. The commission shall meet at least four times each calendar year.

H. At its first meeting the commission shall elect a chairperson and vice-chairperson from among its members and shall adopt bylaws to govern issues related to the conduct of commission business and conflicts of interest.

Article 9 Enhanced Surveillance Advisories and Public Health Emergencies

§ 36-781 Definitions

In this article, unless the context otherwise requires:

1. "Bioterrorism" means the intentional use of any microorganism, virus, infectious substance or biological product that may be engineered as a result of biotechnology or any naturally occurring or bioengineered component of any microorganism, virus, infectious substance or biological product, to cause or attempt to cause death, disease or other biological malfunction in humans.

2. "Director" means the director of the department of health services.

3. "Health care provider" has the same meaning prescribed in section 12-2291.

4. "Local health authority" means a county health department or public health services district or any person authorized to act on behalf of the county health department or public health services district.

5. "Public safety authority" means the department of public safety, a local law enforcement agency or a person authorized to act on behalf of the department of public safety or local law enforcement agency.

§ 36-782 Enhanced surveillance advisory

A. The governor, in consultation with the director, may issue an enhanced surveillance advisory if the governor has reasonable cause to believe that an illness, health condition or clinical syndrome caused by bioterrorism, epidemic or pandemic disease or a highly fatal and highly infectious agent or biological toxin has or may occur or that there is a public event that could reasonably be the object of a bioterrorism event. The illness or health condition may not include acquired immune deficiency syndrome or any other infection caused by the human immunodeficiency virus.

B. As determined by the governor after considering the least restrictive measures necessary that are consistent with public health and safety, the enhanced surveillance advisory shall direct the following in accordance with this article:

1. Those persons and entities required to report.

2. The clinical syndromes, any illness or health condition that may be associated with bioterrorism or a specific illness or health condition to be reported.

3. Patient tracking.

4. Information sharing.

5. Specimen testing coordination.

C. The director shall notify local health authorities before the governor issues an enhanced surveillance advisory. The department and local health authorities shall provide the enhanced surveillance advisory to those persons and entities required by the advisory to report pursuant to this article by using any available means of communication. This article does not alter the department's or a local health authority's ability to monitor community health status or implement control measures for the early detection of communicable and preventable diseases otherwise allowed by law.

D. Before the governor issues an enhanced surveillance advisory, the department and local health authorities must meet with representatives of persons or institutions who will be affected by the enhanced surveillance advisory pursuant to section 36-783, subsections A, B and C. If, because of an immediate threat to the public health, the department and local health authorities are not able to hold this meeting before the governor issues the advisory, the meeting must take place within seventy-two hours after the governor issues the advisory.

E. To the extent possible, the department and local health authorities shall share department and local health authority personnel, equipment, materials, supplies and other resources to assist persons and institutions affected to implement the terms of the advisory.

F. At the governor's direction, the department may use reasonable efforts to assist the persons and institutions to receive reimbursement of costs incurred because of the implementation of the advisory.

G. An enhanced surveillance advisory may be revised or terminated at any time by the director and automatically terminates after sixty days, unless renewed by the governor.

§ 36-783 Increased reporting during enhanced surveillance advisory

A. A health care provider or medical examiner shall report to the local health authority all cases of any illness, health condition or clinical syndrome specified in the enhanced surveillance advisory. The report shall provide additional information designated in the enhanced surveillance advisory.

B. The state veterinarian, a veterinarian, a veterinarian laboratory professional or a wildlife professional shall report any case of animal illness or death due to the disease or other health condition designated in the enhanced surveillance advisory to the department or local health authority. The report shall include the species and number of affected animals and the name and address of the reporting veterinarian, veterinarian laboratory professional or wildlife professional.

C. A pharmacist who identifies any unusual increase in prescriptions for antibiotics or any unusual increase in prescriptions or sales of over-the-counter pharmaceuticals to treat the illness, health condition or clinical syndrome identified in the enhanced surveillance advisory shall report this information to the local health authority. The report shall include the type of pharmaceutical and the name and address of the pharmaceutical provider.

D. The reports must be in writing or by any method directed by the department or local public health authority and must be submitted within twenty-four hours after identifying the reportable circumstance. All persons required to report under this section must cooperate with the department and local health authority in effecting the enhanced surveillance advisory. Failure to report pursuant to this section is an act of unprofessional conduct.

E. The department and local public health authority shall maintain as confidential:

1. Any information or a particular part of information provided under this section that, if made public, would divulge the trade secrets of a person or business.

2. Other information likely to cause substantial harm to the person's or business' competitive position.

F. The local health authority shall immediately notify the department of any reports received during the period of an enhanced surveillance advisory.

§ 36-784 Patient tracking during enhanced surveillance advisory

A. During an enhanced surveillance advisory, to identify, diagnose, treat and track persons who may have been exposed to an illness, health condition or clinical syndrome identified in an enhanced surveillance advisory, the department and local health authority may access confidential patient information, including medical records, wherever and by whomever held and whether or not patient identity is known.

B. The department or local health authority shall counsel and interview any person as necessary to assist it in the positive identification of exposed persons and to develop information relating to the source and spread of the illness or health condition. This information must include the names and addresses of any persons from whom the illness or health condition may have been contracted and to whom the illness or health condition may have spread.

C. Any medical information or other information from which a person might be identified that is received by the department or local health authority in the course of an enhanced surveillance advisory is confidential and is not available to the public.

§ 36-785 Information sharing during an enhanced surveillance advisory

A. During an enhanced surveillance advisory, when a public safety authority learns of a suspicious disease event, or it learns of a threatened bioterrorism act at any time, it shall immediately notify the department or the local health authority, and the agency that receives this information must immediately notify the other agency.

B. When the department or the local health authority identifies a reportable illness or health condition, unusual disease cluster or suspicious disease event that it reasonably believes may be caused by bioterrorism, the department or local health authority must immediately notify at any time the appropriate public safety authority and, if appropriate, tribal health authorities.

C. Sharing of information on reportable illnesses, health conditions, unusual disease clusters or suspicious disease events between public safety and local health authorities is limited to the information necessary to effect the enhanced surveillance advisory and does not include the release of medical records to public safety authorities. Information from which a person might be identified that is received by the department, local health authority or public safety authority in the course of an enhanced surveillance advisory is confidential and not available to the public.

§ 36-786 Laboratory testing during an enhanced surveillance advisory

A. The state laboratory shall coordinate specimen testing relating to enhanced surveillance advisory. If necessary and at state expense, the department may designate other laboratories to assist it in testing specimens.

B. The department shall determine the criteria necessary for private or public laboratories to conduct clinical or environmental testing associated with bioterrorism or any illness or health condition subject to the enhanced surveillance advisory.

C. During an enhanced surveillance advisory, a public safety authority, if requested by the department or local health authority, shall coordinate and provide transportation of clinical or environmental samples to the state laboratory or other testing laboratory designated by the department.

§ 36-787 Public health authority during state of emergency or state of war emergency; notices; appeals

(L21, Ch. 405, sec. 11)

A. During a state of emergency or state of war emergency proclaimed by the governor in which there is an occurrence or imminent threat of an illness or health condition that is caused by bioterrorism, an epidemic or pandemic disease or a highly fatal infectious agent or biological toxin and that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability, the department shall coordinate all matters pertaining to the public health emergency response of the state. The department has primary jurisdiction, responsibility and authority for:

1. Planning and executing public health emergency assessment, mitigation, preparedness response and recovery for this state.

2. Coordinating public health emergency response among state, local and tribal authorities.

3. Collaborating with relevant federal government authorities, elected officials of other states, private organizations and private sector companies.

4. Coordinating recovery operations and mitigation initiatives subsequent to public health emergencies.

5. Organizing public information activities regarding state public health emergency response operations.

6. Establishing, in conjunction with applicable professional licensing boards, a process to grant a temporary waiver of the professional licensure requirements necessary to implement any measures required to adequately address the state of emergency or state of war emergency.

7. Granting temporary waivers of health care institution licensure requirements necessary to implement any measures required to adequately address the state of emergency or state of war emergency.

B. In addition to the authority provided in subsection A of this section, during a state of emergency or state of war emergency, the governor, in consultation with the director of the department of health services, may issue orders that:

1. Mandate medical examinations for exposed persons.

2. Ration medicine and vaccines.

3. Provide for transportation of medical support personnel and ill and exposed persons.

4. Provide for procurement of medicines and vaccines.

C. In addition to the authority provided in subsections A and B of this section, during a state of emergency or state of war emergency in which there is an occurrence or the imminent threat of smallpox, plague, viral hemorrhagic fevers or a highly contagious and highly fatal disease with transmission characteristics similar to smallpox, the governor, in consultation with the director of the department of health services, may issue orders that:

1. Mandate treatment or vaccination of persons who are diagnosed with an illness resulting from exposure or who are reasonably believed to have been exposed or who may reasonably be expected to be exposed. A person may refuse a vaccination required by this paragraph based on the person's personal beliefs.

2. Isolate and quarantine persons.

D. Law enforcement officials of this state and the national guard shall enforce orders issued by the governor under this section.

E. Diseases subject to this section do not include acquired immune deficiency syndrome or any other infection caused by the human immunodeficiency virus.

F. If during a state of emergency or state of war emergency the public health is not endangered, this title does not authorize the department or any of its officers or representatives to impose on any person against the person's will any mode of treatment, provided that sanitary or preventive measures and quarantine laws are complied with by the person. This title does not authorize the department or any of its officers or representatives to impose on any person contrary to the person's religious concepts any mode of treatment, provided that sanitary or preventive measures and quarantine laws are complied with by the person.

G. At the governor's direction, the department may use reasonable efforts to assist the persons and institutions affected by the state of emergency or state of war emergency proclaimed pursuant to this section in seeking reimbursement of costs incurred as a result of providing services related to implementing isolation and quarantine under this article to the extent these services are not otherwise subject to reimbursement.

H. This section does not allow the department, any other state agency or a city, town or county to permanently revoke any license held by a business or used to operate a business for not complying with an order issued by the governor pursuant to this section unless the department, other state agency, city, town or county can demonstrate by clear and convincing evidence that the business caused the transmission of the disease that is the subject of the order due to the business's wilful misconduct or gross negligence.

I. Before a state agency, city, town or county suspends or permanently revokes, pursuant to subsection H of this section, a license held by a business or used to operate a business, the state agency, city, town or county shall provide the business with both of the following:

1. A written notice of noncompliance delivered by personal service or certified mail.

2. A written notice of intent to suspend or permanently revoke the license at least thirty days after the date of the notice of noncompliance provided pursuant to paragraph 1 of this subsection. The state agency, city, town or county shall present any new evidence of grounds for revocation in the written notice required by this paragraph. A business that receives a notice pursuant to this paragraph and disputes the claim shall respond to the state agency, city, town or county within twenty days after receiving the notice.

J. Any dispute relating to the suspension or permanent revocation of a license held by a business or used to operate a business shall be resolved by a court of competent jurisdiction in this state. A state agency, city, town or county may not suspend or permanently revoke a license held by a business or used to operate a business until the business has received both notices prescribed in subsection I of this section and all appeals have been exhausted. The court may award reasonable attorney fees and damages to a business in an action relating to the suspension or permanent revocation of a license held by a business or used to operate a business.

§ 36-788 Isolation and quarantine during a state of emergency or state of war emergency

A. During a state of emergency or state of war emergency as declared pursuant to section 36-787, the department or local health authority must initiate an investigation if that agency has reasonable cause to believe that a highly contagious and fatal disease exists within its jurisdiction. Subject to the provisions of this article, persons who have contracted the disease or who have been exposed to the disease may be subject to isolation and quarantine if the director determines that quarantine is the least restrictive means by which the public can be protected from transmission of the disease, due to the nature of the disease and available preventive measures, or refusal by an individual to accept less restrictive measures to prevent disease transmission. Diseases for which isolation and quarantine may be ordered do not include acquired immune deficiency syndrome or other infection caused by the human immunodeficiency virus.

B. The department or local health authority may, during the state of emergency or state of war emergency declared by the governor, do the following:

1. Establish and maintain places of isolation and quarantine, which may include the residence of the person quarantined.

2. Require isolation or quarantine of any person by the least restrictive means necessary to protect the public health. The department or local health authority shall use all reasonable means to prevent the transmission of disease among the isolated or quarantined persons.

C. The department, a county health department or a public health services district shall ensure, to the extent possible, that the premises in which a person is isolated or quarantined is maintained in a safe and hygienic manner and is designed to minimize the likelihood of further transmission of disease or other harm to a person subject to isolation or quarantine. Adequate food, clothing, medication and other necessities, competent medical care and means of communicating with those in and outside these settings shall be made available.

D. A person subject to isolation or quarantine shall comply with the department's or local health authority's rules and orders, shall not go beyond the isolation or quarantine premises and shall not come in contact with any person not subject to isolation or quarantine other than a physician or other health care provider, department or local health authority or person authorized to enter an isolation or quarantine premises by the department or local health authority.

E. Other than a person authorized by the department or local health authority, a person shall not enter an isolation or quarantine premises. If, by reason of an unauthorized entry into an isolation or quarantine premises, the person poses a danger to public health, the department, or local health authority may place the person in isolation or quarantine pursuant to this section or section 36-789.

F. The department, or local health authority must terminate isolation or quarantine of a person if it determines that the isolation or quarantine is no longer necessary to protect the public health.

§ 36-789 Due process for isolation and quarantine during a state of emergency or state of war emergency

A. The department, or local health authority may isolate or quarantine a person or group of persons through a written directive without first obtaining a written order from the court if any delay in the isolation or quarantine of the person would pose an immediate and serious threat to the public health. The directive shall:

1. Specify the identity of the person or persons subject to isolation or quarantine, the premises subject to isolation or quarantine, the date and time at which isolation or quarantine commences, the suspected highly contagious and fatal disease, if known, and that a state of emergency has been declared by the governor.

2. Be given to the person or persons to be isolated or quarantined. If the directive applies to groups of persons and it is impractical to provide individual copies, it may be posted in a conspicuous place in the isolation or quarantine premises.

B. Within ten days after issuing the written directive, or when any delay in the isolation or quarantine of a person or group of persons will not pose an immediate and serious threat to the public health, the department or local health authority shall file a petition for a court order authorizing the initial or continued isolation or quarantine of a person or group of persons. The petition shall specify the following:

1. The identity of the person or group of persons subject to isolation or quarantine.

2. The premises subject to isolation or quarantine.

3. The date and time at which isolation or quarantine commences.

4. The suspected contagious disease, if known.

5. A statement of compliance with the conditions and principles for isolation and quarantine.

6. A statement of the basis on which isolation or quarantine is justified pursuant to this article.

C. The petition must be accompanied by the sworn affidavit of the department or local health authority attesting to the facts asserted in the petition, together with any further information that may be relevant and material to the court's consideration.

D. Notice to a person or group of persons identified in a petition filed pursuant to subsection B of this section must be completed within twenty-four hours after filing the petition and in accordance with the rules of civil procedure.

E. A hearing must be held on a petition filed pursuant to this section within five days after filing of the petition. In extraordinary circumstances and for good cause shown, the department or local health authority may apply to continue the hearing date on a petition for not more than ten days. If the court grants a continuance it must give due regard to the rights of the affected persons, the protection of the public's health, the severity of the emergency and the availability of necessary witnesses and evidence.

F. The court shall grant the petition if, by a preponderance of the evidence, isolation or quarantine is shown to be reasonably necessary to protect the public health.

G. A court order authorizing isolation or quarantine may do so for a period not to exceed thirty days. The order must:

1. Identify the isolated or quarantined person or group of persons by name or shared or similar characteristics or circumstances.

2. Specify factual findings warranting isolation or quarantine pursuant to this article, including any conditions necessary to ensure that isolation or quarantine is carried out within the stated purposes and restrictions of this article.

3. Be served on an affected person or group of persons in accordance with the rules of civil procedure.

H. Before an isolation or quarantine order expires, the department or local health authority may move to continue the isolation or quarantine for an additional period not to exceed thirty days. The court shall grant the motion if, by a preponderance of the evidence, isolation or quarantine is shown to be reasonably necessary to protect the public health.

I. A person or group of persons isolated or quarantined pursuant to this section may apply to the court for an order to show cause why the person or group of persons should not be released. The court must rule on the application to show cause within forty-eight hours after it is filed. If the court grants the application, the court must schedule a hearing on the order to show cause within twenty-four hours after it issues the order to show cause. The issuance of an order to show cause does not stay or enjoin an isolation or quarantine order.

J. A person isolated or quarantined pursuant to this section may request a court hearing regarding the person's treatment and the conditions of the quarantine or isolation.

K. On receiving a request for a hearing pursuant to subsection J of this section, the court must set a date for a hearing. The hearing must take place within ten days after the court receives the request. The request for a hearing does not alter the order of isolation or quarantine. If the court finds that the isolation or quarantine of the person or group of persons does not comply with the requirements of this section or section 36-788, the court may provide remedies appropriate to the circumstances of the state of emergency, the rights of the individual and in keeping with the provisions of this article.

L. A record of the proceedings pursuant to this section shall be made and retained. If, because of a state of emergency or state of war emergency declared pursuant to section 36-787, parties cannot personally appear before the court, the proceedings may be conducted by the authorized representatives of the parties and held by any means that allows all parties to fully participate.

M. The court shall appoint counsel at state expense to represent a person or group of persons who is subject to isolation or quarantine pursuant to this article and who is not otherwise represented by counsel. Representation by appointed counsel continues throughout the duration of the isolation or quarantine of the person or group of persons. The department or local health authority must provide adequate means of communication between the isolated or quarantined persons and their counsel.

N. In any proceedings brought pursuant to this section, to promote the fair and efficient operation of justice and having given due regard to the rights of the affected persons, the protection of the public's health, the severity of the emergency and the availability of necessary witnesses and evidence, the court may order the consolidation of individual claims into groups of claims if:

1. The number of persons involved or to be affected is so large as to render individual participation impractical.

2. There are questions of law or fact common to the individual claims or rights to be determined.

3. The group claims or rights to be determined are typical of the affected person's claims or rights.

4. The entire group will be adequately represented in the consolidation.

§ 36-790 Privileges and immunities

A. The physician patient privilege does not prevent a person or health care provider from complying with the duty to report or provide personal information and medical information to the department or local health authority in accordance with this article. The department and local health authorities shall maintain the confidentiality of the medical information and personal identifiers received.

B. A person or health care provider undertaking any activity required by this article, including reporting, participating in quarantine or isolation procedures, is immune from civil or criminal liability if the person or health care provider acted in good faith. Actions required by this article are presumed to be in good faith.

C. The immunities prescribed in section 26-314 are applicable to sections 36-787, 36-788 and 36-789.

§ 36-791 Crisis standards of care plan; crisis guidelines or standards; requirements; modification of existing plan, guidelines or standards; definition

A. If the department of health services adopts or establishes a crisis standards of care plan or crisis guidelines or standards to address resource allocation when the demand for certain health care services exceeds the supply of necessary resources, the plan, guidelines or standards must include the following provisions:

1. The allocation of health care resource decisions shall be made on the basis of valuing all life.

2. A patient or the patient's health care decision maker has the right to make the patient's health care choices.

3. Decisions on the allocation of health care resources may not discriminate on the basis of disability, age, race, religion, sex, veteran status or income status.

4. Health care providers may consider only short-term survival when making decisions regarding the allocation of health care resources.

5. Treatment resources may not be allocated based on any of the following:

(a) Quality of life judgments.

(b) Consideration of long-term mortality and long-term life expectancy.

(c) Resource intensity and duration of need due to disability or age.

6. Each patient has the right to an individualized assessment on the basis of the best available objective medical evidence and not on assumptions about the patient's perceived health, preexisting conditions or medical diagnosis.

7. Persons with disabilities and the aged have the right to reasonable modifications to ensure that all patients have equal access to medical care, including reasonable modification in patient assessment, communication and support needs due to disability or age.

8. A patient or the patient's family or health care decision maker has the right to appeal any triage decision.

B. A health care provider or health care institution staff member may not require a patient or the patient's health care decision maker to do either of the following:

1. Sign a do-not-resuscitate order.

2. Make a particular health care treatment decision.

C. The department of health services shall modify any existing crisis standards of care plan or crisis guidelines or standards within sixty days after September 29, 2021 to comply with the requirements of this section.

D. Representatives of the state protection and advocacy agency and advocates for the aged shall be members of the state disaster medical advisory committee, which is responsible for developing the crisis standards of care and other incident-specific priorities and guidance for delivering health care and using scarce medical resources during a public health emergency.

E. For the purposes of this section, "short-term survival" means a near-term survival from the episode of care that directly resulted from the illness or injury that required hospitalization.

Article 10 Kratom Products

§ 36-795 Definitions

In this article, unless the context otherwise requires:

1. "Food" means a food as defined in section 36-901, food product, food ingredient, dietary ingredient, dietary supplement or beverage for human consumption.

2. "Kratom product" means a food product or dietary ingredient containing any part of the leaf of the plant mitragyna speciosa.

3. "Processor" means a person that sells, prepares, manufactures, distributes, wholesales or maintains kratom products or that advertises, represents or holds itself out as selling, preparing or maintaining kratom products.

4. "Retailer" means a person that sells or distributes kratom products or that advertises, represents or holds itself out as selling or maintaining kratom products.

§ 36-795.01 Kratom product disclosure; preparing, distributing, selling or exposing for sale without disclosure prohibited

A. A processor or a retailer that prepares, distributes, sells or exposes for sale a food that is represented to be a kratom product shall disclose on the product label the factual basis on which that representation is made.

B. A processor or retailer may not prepare, distribute, sell or expose for sale a food represented to be a kratom product that does not conform to the disclosure required by this section.

§ 36-795.02 Kratom products; adulteration; contamination; sales to minors prohibited

A. A processor or retailer may not prepare, distribute, sell or expose for sale any of the following:

1. A kratom product that is adulterated with a dangerous nonkratom substance. A kratom product is adulterated with a dangerous nonkratom substance if the kratom product is mixed or packed with a nonkratom substance and that substance affects the quality or strength of the kratom product to such a degree as to render the kratom product injurious to a consumer.

2. A kratom product that is contaminated with a dangerous nonkratom substance. A kratom product is contaminated with a dangerous nonkratom substance if the kratom product contains a poisonous or otherwise deleterious nonkratom substance, including any controlled substance prescribed by chapter 27 of this title or rules adopted pursuant to chapter 27 of this title.

3. A kratom product containing a level of 7-hydroxymitragynine in the alkaloid fraction that is greater than two percent of the alkaloid composition of the product.

4. A kratom product containing any synthetic alkaloid, including synthetic mitragynine, synthetic 7-hydroxymitragynine or any other synthetically derived compounds of the kratom plant.

5. Any kratom-containing product that does not include on its package or label the amount of mitragynine and 7-hydroxymitragynine contained in the product.

B. A processor or retailer may not distribute, sell or expose for sale a kratom product to an individual who is under eighteen years of age.

§ 36-795.03 Enforcement; violations; classification

A. In addition to the violations and remedies specified in this section, violations and enforcement of this article are governed by chapter 8 of this title.

B. A processor or retailer that violates section 36-795.01, subsection B or section 36-795.02 is guilty of a class 2 misdemeanor.

C. In addition to and distinct from any other remedy at law or equity, a person aggrieved by a violation of section 36-795.01, subsection B or section 36-795.02, subsection A may bring a private cause of action in a court of competent jurisdiction for damages resulting from that violation, including economic, noneconomic or consequential damages.

D. A processor or retailer does not violate section 36-795.01, subsection B or section 36-795.02, subsection A if the court finds by a preponderance of the evidence that the processor or retailer relied in good faith on the representation of a manufacturer, packer or distributor that the food was a kratom product.

Article 11 Bedding

§ 36-796 Definitions

In this article, unless the context otherwise requires:

1. "Bedding" includes upholstered furniture and means any mattress, box spring, upholstered chair, couch or other upholstered device or any quilted pad, packing pad, mattress pad, hammock pad, pad, comforter, bunk quilt, sleeping bag, pillow, cushion, hassock or other bag or container made of leather, cloth, plastic or any other material that is used as a covering or is stuffed or filled in whole or in part with concealed material in addition to the structural units, all of which may be used by any person for sleeping, resting or reclining purposes. Bedding does not include the upholstered portions of motor vehicles other than mobile homes, house trailers and camp trailers.

2. "Filling materials" means all or portions of materials, prefabricated forms or articles used as filling in the manufacture, repair or renovation of bedding and upholstered furniture.

3. "New" means any material or article that has not been previously used, except in the manufacturing process, for any purpose.

4. "Person" includes persons, partnerships, companies, corporations, associations and governmental agencies.

5. "Renovate" means to repair, make over, recover, restore or renew bedding or upholstered furniture and place it in a good state of repair.

6. "Secondhand" means any portion of any article or material of which prior use of any kind, except in the manufacturing process, has been made.

7. "Sell" means to offer or expose for sale, barter, trade, lend, deliver, give away, rent, consign, lease, possess with intent to sell or dispose of in any other commercial manner. The possession of any article of bedding or filling materials by any maker, remaker or dealer, in the course of business, is presumptive evidence of intent to sell.

8. "Sterilizer" means a person who sterilizes, disinfects, disinfests or fumigates any article of upholstered furniture or bedding or any filling material relating to these items.

§ 36-796.02 Labeling of bedding required

A. A person shall not manufacture, repair, renovate or sell, or have in the person's possession with intent to sell, any item of bedding, unless there is securely attached a clearly visible tag made of substantial cloth or a material of equal quality and attached at the factory.

B. Bedding manufactured in whole from all new material shall have securely attached a white tag not less than six square inches on which is plainly stamped or printed in black ink in English:

1. "All New Material" in lettering not less than one-eighth inch in height.

2. The name and address of the manufacturer or distributor.

3. The manufacturer's registration or license number if the manufacturer is registered or licensed in another state.

4. The kind and grade of each material used in filling, expressed in percentages by weight when mixed.

C. Bedding manufactured in whole or in part from secondhand material shall have securely attached a red tag not less than twelve square inches on which is plainly printed in black ink in English:

1. "Secondhand Material" in lettering not less than one-fourth inch in height.

2. The name and address of the manufacturer.

3. The manufacturer's registration or license number if the manufacturer is registered or licensed in another state.

D. Subsection C does not apply to bedding reworked, repaired or renovated for the owner for the owner's own use.

E. Bedding renovated, reworked or repaired for the owner, for the owner's use and from the owner's material, which is in whole or in part secondhand, shall have securely attached a green tag not less than six square inches on which is plainly printed in black ink in English:

1. "Not for Sale, Owner's Own Material that is Secondhand Material" in lettering not less than one-eighth inch in height.

2. The name and address of the renovator.

3. The name and address of the owner.

F. A person shall not make any false or misleading statements on the tag required by this section. A person shall not remove, deface, alter or cause to be removed, defaced or altered any tag or statement contained on the tag for the purpose of violating any provision of this article. The placing of material or marks over any lettering on the tag is a defacement of the tag.

§ 36-796.03 Prohibited use of certain materials

A person shall not use materials obtained from dump grounds, junkyards or hospitals within or outside this state to manufacture, repair, rework or renovate bedding or batting.

§ 36-796.04 Sterilization, disinfection and disinfestation of bedding and materials

A. A person shall not sell or include in a sale any item of secondhand bedding or any item of bedding of any type manufactured in whole or in part from secondhand material, including the component parts or wiping rags, unless the secondhand material has been treated, cleaned and disinfected.

B. A person shall not use in the manufacture, repair and renovation of bedding of any type any material that has been used by a person with an infectious or contagious disease or that is filthy or oily or harbors loathsome insects or pathogenic bacteria.

C. A person shall not sell or include in a sale any material or bedding that under the provisions of this article requires treatment unless there is securely attached a yellow tag not less than twelve square inches, made of substantial cloth or a material of equal quality and on which there is plainly printed, in black ink, in English the following information:

1. That the item or material has been treated and the method of treatment applied.

2. The lot number and the tag number of the item treated.

3. The license number of the person who applied the treatment.

4. The name and address of the person for whom the item was treated.

D. Every manufacturer, renovator, rebuilder, repairer or sanitizer of used bedding shall remove the outer fabric, the inner foam, the pad, and any other fabric and any other textile product, material or component and shall inspect each item for soiling, malodor and pest infestation prior to the sale or distribution of the bedding product. If any material or component of used bedding is soiled, malodorous or infested, that material or component cannot be reused, sold or distributed for use in any bedding product.

§ 36-796.07 Exceptions

The provisions of this article shall not apply to:

1. Bedding which has been manufactured, repaired or renovated prior to the effective date of this article.

2. Any articles of bedding sold under the order of any court.

3. The sale of bedding by a householder of bedding owned and used by such householder and his family, and which was not acquired for resale, except that the sale of any such bedding by a householder through an agent shall be within the provisions of this article.

§ 36-796.08 Violation; classification

A person who violates any provision of this article is guilty of a class 2 misdemeanor.

Article 12 HIV Action Program

§ 36-797 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department.

3. "HIV" means the human immunodeficiency virus.

§ 36-797.01 HIV action program; duties; report

A. The director shall establish and implement the HIV action program in the department to meet at least the following requirements:

1. On or before November 1, 2020, complete a statewide HIV prevention and care needs assessment of target populations, including people living with substance use issues.

2. Identify community-based agencies that serve the HIV population and that are outside the known HIV service system.

3. Conduct outreach to increase community involvement in HIV prevention, education and stigma reduction in this state.

4. Develop a social media initiative using new and traditional media to engage at-risk populations to be tested for HIV infection in this state.

5. Analyze data from the statewide HIV prevention and care needs assessment annually to develop and implement HIV training and education initiatives in this state.

B. On or before January 1, 2021, the department shall provide a report to the governor, the speaker of the house of representatives and the president of the senate regarding the outcomes of the statewide HIV prevention and care needs assessment and the program's action plan pursuant to subsection A of this section. The department shall provide a copy of the report to the secretary of state.

Article 13 Sickle Cell Anemia

§ 36-797.41 Declaration of policy; sickle cell anemia

A. It is the policy of this state to make every effort to detect, as early as possible, sickle cell anemia, an heritable disorder which leads to physical defects. The director has the responsibility of designating tests and regulations to be used in executing this policy. Such tests shall be in accordance with accepted medical practices.

B. In this article, "sickle cell anemia" includes all variants of sickle cell anemia.

§ 36-797.42 Testing by department; consent

A. Testing for sickle cell anemia may be conducted at the following times by the department of health services:

1. Upon first enrollment of a child in an elementary school in this state.

2. For any child not tested pursuant to paragraph 1, upon first enrollment at a junior high school or senior high school in this state, as the case may be.

3. Upon application of any person for a license to marry, the parties seeking to be married may be tested.

4. For any pregnant woman.

B. The department of health services may require that a test be given for sickle cell anemia to any identifiable segment of the population which the department determines is susceptible to sickle cell anemia at a disproportionately higher ratio than is the balance of the population.

C. Testing for sickle cell anemia may not be conducted without the consent of the:

1. Person upon whom the test is to be conducted.

2. Parent or guardian of a minor upon whom the test is to be conducted.

§ 36-797.43 Care and treatment of children with sickle cell anemia; reimbursement

A. Subject to the availability of monies, the department of health services, through the children's rehabilitative services, may develop and operate, either directly or by contracting with public or private providers, programs for the diagnosis, care and treatment of children suffering from sickle cell anemia.

B. The parent or other responsible person, agency or third-party payor shall reimburse the department for part or all of the costs of services rendered to a child pursuant to this section according to a scale of rates and charges established by the department and based on the cost of services provided and the ability of the parent or responsible person to pay for these services.

§ 36-797.44 Care and treatment of adults with sickle cell anemia; reimbursement

A. Subject to the availability of monies, the department of health services, through the children's rehabilitative services, may develop and operate, either directly or by contracting with public or private providers, programs for the diagnosis, care and treatment of adults suffering from sickle cell anemia.

B. The adult or other responsible person, agency or third-party payor shall reimburse the department for part or all of the costs of services rendered to an adult pursuant to this section according to a scale of rates and charges established by the department and based on the cost of services provided and the ability of the adult or other responsible person to pay for these services.

Article 14 Tobacco Sales

§ 36-798 Definitions

In this article, unless the context otherwise requires:

1. "Bar" means that portion of any premises licensed under section 4-209, subsection B, paragraph 6, 7, 11, 12 or 14 that is primarily used for the selling, consumption or serving of alcoholic beverages and that is not primarily used for the consumption of food on the premises.

2. "Beedies" or "bidis" means a product containing tobacco that is wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros exculpra), or any other product that is offered to, or purchased by, consumers as beedies or bidis.

3. "Cigar" means a roll of tobacco or any lawful substitute for tobacco that is wrapped in tobacco.

4. "Cigarette" means a roll of tobacco or any lawful substitute for tobacco that is wrapped in paper or in any substance other than tobacco.

5. "Minor" means a person who is under eighteen years of age.

6. "Retail tobacco vendor" means a person who possesses tobacco or tobacco products for the purpose of selling them for consumption and not for resale.

7. "Smokeless tobacco" includes shredded tobacco, snuff, cavendish and plug, twist and other tobacco products that are intended for oral use but not for smoking.

8. "Smoking tobacco" includes any tobacco or tobacco product, other than cigarettes and cigars, that is intended to be smoked.

9. "Tobacco products" includes cigarettes, cigarette papers, cigars, smokeless tobacco and smoking tobacco.

10. "Vending machine" means any mechanical, electrical or electronic device that, on insertion of money, tokens or any other form of payment, automatically dispenses tobacco products.

§ 36-798.01 Selling or giving beedies or bidis; violation; classification

A. It is unlawful for a retail tobacco vendor to sell, furnish, give or provide beedies or bidis to a person who is under twenty-one years of age in this state.

B. Any person who violates this section is guilty of a class 3 misdemeanor.

§ 36-798.02 Vending machine sales of tobacco and tobacco products; signage; violation; classification

A. A person shall not sell tobacco products through a vending machine unless the vending machine is located in either:

1. A bar.

2. An employee lounge area that is not open to the public and the business in which the lounge area is located does not employ minors.

B. A sign measuring at least eighty square inches shall be obviously affixed to the front of each vending machine. The sign shall state in block letters that it is illegal for a person who is under twenty-one years of age to purchase cigarettes or tobacco products and, on conviction, a fine of up to $300 may be imposed.

C. This article does not invalidate an ordinance of or prohibit the adoption of an ordinance by a county, city or town to further restrict the location of vending machines or specify different wording for the vending machine signs as required by subsection B of this section.

D. A person who violates this section is guilty of a petty offense.

§ 36-798.03 Tobacco products prohibition at schools and school-related areas; exception; violation; classification

A. Tobacco products are prohibited on school grounds, inside school buildings, in school parking lots or playing fields, in school buses or vehicles or at off-campus school sponsored events. For purposes of this subsection, "school" means any public, charter or private school where children attend classes in kindergarten programs or grades one through twelve.

B. Subsection A of this section does not apply to an adult who employs tobacco products as a necessary component of a school sanctioned tobacco prevention or cessation program established pursuant to section 15-712.

C. A person who violates this section is guilty of a petty offense.

§ 36-798.04 Unlawful manufacture, sale or distribution of cigarettes and roll-your-own tobacco; exception; violation; classification

A. Except as provided in subsection B or C of this section, it is unlawful to manufacture, sell or distribute in this state either:

1. A package or other container of cigarettes that contains fewer than twenty cigarettes.

2. A package of roll-your-own tobacco that contains less than 0.60 ounces of tobacco.

B. This section does not prohibit:

1. The manufacture of the products described in subsection A, paragraphs 1 and 2 of this section for sale or distribution outside of this state.

2. The manufacture of the products described in subsection A, paragraph 1 of this section for sale or distribution in compliance with subsection C of this section.

C. Products described in subsection A, paragraph 1 of this section may be distributed or sold within this state only at a facility that is licensed pursuant to section 4-209, subsection B, paragraph 6, and that admits only people who are at least twenty-one years of age.

D. A violation of this section is a class 3 misdemeanor.

§ 36-798.05 Unsolicited delivery of tobacco products; violation; classification; civil penalties; definitions

A. It is unlawful for a person to deliver or cause to be delivered to any residence in this state any tobacco products unsolicited by at least one adult who resides at that address.

B. A person who knowingly violates subsection A of this section is guilty of a class 2 misdemeanor.

C. A person who violates subsection A of this section is subject to a civil penalty in an amount of not to exceed five thousand dollars for each violation. Each delivery of a tobacco product shall constitute a separate violation.

D. The attorney general may bring an action to recover civil penalties and as determined by the court, taxable costs, such other fees and expenses reasonably incurred and reasonable attorney fees, in the name of the state for a violation of this section. All civil penalties recovered shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund and all other monies recovered shall be deposited, pursuant to sections 35-146 and 35-147, in the antitrust enforcement revolving fund established by section 41-191.02.

E. In this section, unless the context otherwise requires:

1. "Knowingly" has the same meaning prescribed in section 13-105.

2. "Person" means an individual, partnership, firm, association, corporation, limited liability company, limited liability partnership, joint venture, or other entity, other than an individual or entity engaged in the delivery of items for hire.

§ 36-798.06 Delivery sales prohibited; common carriers; penalties; forfeiture; unlawful practice; exceptions; violation; classification; definitions

A. A person shall not do either of the following:

1. Cause a tobacco product to be ordered or purchased by anyone other than a licensed person or a retailer who orders or purchases from a licensed person, including by ordering or purchasing a tobacco product.

2. Knowingly provide substantial assistance to a person who violates this section.

B. A common carrier shall not knowingly transport a tobacco product for a person who is in violation of this section.

C. Each order or purchase of a tobacco product in violation of subsection A, paragraph 1 of this section constitutes a separate violation under this section.

D. In addition to any other penalty, a person who violates this section is subject to all of the following:

1. A civil penalty in an amount not to exceed $5,000 for each violation.

2. An injunction to restrain a threatened or actual violation of this section.

3. Recovery by this state for:

(a) The costs of any investigation related to a violation of this section.

(b) The cost of expert witness fees in any action related to a violation of this section.

(c) The cost of the action related to a violation of this section.

(d) Reasonable attorney fees.

4. All state tobacco taxes due under title 42, chapter 3, except as prohibited under section 42-3402, and all transaction privilege or use taxes due under title 42, chapter 5, including any penalties and interest.

E. All tobacco products that are seized for a violation of this section shall be forfeited to the state and destroyed pursuant to section 42-1124.

F. A violation of this section is an unlawful practice under section 44-1522 and is in addition to all other causes of action, remedies and penalties that are available to this state. The attorney general may investigate and take appropriate action pursuant to title 44, chapter 10, article 7.

G. This section does not apply to any of the following:

1. The shipment of a tobacco product to a foreign trade zone that is established under 19 United States Code sections 81a through 81u and title 44, chapter 18 and that is located in this state if the tobacco product is from outside of this country, was ordered by a distributor in another state and is not distributed in this state.

2. A government employee who is acting in the course of the employee's official duties.

3. The shipment of a tobacco product to a university that is acquiring the tobacco product to use to conduct basic and applied research, if the tobacco product is exempt from federal excise tax under 26 United States Code section 5704(a).

H. A person who violates this section is guilty of a class 6 felony.

I. For the purposes of this section:

1. "Licensed person" means a person who is required to be licensed under section 42-3401.

2. "Order or purchase" means any of the following:

(a) By mail or delivery service.

(b) Through the internet or a computer network.

(c) By telephone.

(d) Through any other electronic method.

3. "Person" means an individual, partnership, firm, association, corporation, limited liability company or partnership, joint venture or other entity.

4. "Retailer" has the same meaning prescribed in section 42-5001.

5. "Tobacco product" means all luxuries included in section 42-3052, paragraphs 5, 6 and 7. Tobacco product does not include pipe tobacco or cigars.

§ 36-798.07 Possessing, accepting or receiving tobacco product, vapor product or tobacco or shisha instruments or paraphernalia; active military personnel under twenty-one years of age

A. A person who is at least eighteen years of age may possess, accept, receive or use a tobacco product, a vapor product or any instrument or paraphernalia that is solely designed for smoking or ingesting tobacco or shisha as defined in section 13-3622, including a hookah or waterpipe, only if all of the following apply:

1. The person is currently serving as a member of the national guard, the United States armed forces reserves or the active component of the United States armed forces.

2. The use or possession of the tobacco product, vapor product or any instrument or paraphernalia is allowed by the regulations and policies of the United States department of defense or the branch of the United States armed forces in which the person is serving.

3. The person holds a valid military identification card that is issued by the United States department of defense or the branch of the United States armed forces in which the person is serving.

B. This section does not apply to any person who is either:

1. No longer serving as a member of the national guard, the United States armed forces reserves or the active component of the United States armed forces.

2. Under eighteen years of age.

Article 15 Overdose and Disease Prevention

§ 36-798.51 Overdose and disease prevention programs; requirements; standards

A. A city, town, county or nongovernmental organization, including a local health department or an organization that promotes scientifically proven ways of mitigating health risks associated with drug use and other high-risk behaviors, or any combination of these entities, may establish and operate an overdose and disease prevention program. A program established pursuant to this section shall have all of the following objectives:

1. To reduce the spread of viral hepatitis, HIV and other bloodborne diseases in this state.

2. To reduce needle-stick injuries to law enforcement officers and other emergency personnel.

3. To encourage individuals who inject drugs to enroll in evidence-based treatment.

4. To increase proper disposal of used syringes.

5. To reduce the occurrence of skin and soft tissue wounds and infections related to injection drug use.

B. A program established pursuant to this section shall offer all of the following:

1. Disposal of used needles and hypodermic syringes.

2. Needles, hypodermic syringes and other injection supply items at no cost and in quantities sufficient to ensure that needles, hypodermic syringes and other injection supply items are not shared or reused.

3. Educational materials on all of the following:

(a) Overdose prevention.

(b) Peer support services.

(c) The prevention of HIV, viral hepatitis transmission and the incidence of skin and soft tissue wounds and infections.

(d) Treatment for mental illness, including treatment referrals.

(e) Treatment for substance use disorder, including referrals for substance use disorder treatment.

4. Access to kits that contain naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration to treat a drug overdose, or referrals to programs that provide access to naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration to treat a drug overdose.

5. For each individual who requests services, personal consultations from a program employee or volunteer concerning mental health or substance use disorder treatment or referrals for evidence-based substance use disorder treatment, as appropriate.

C. A program established pursuant to this section shall develop standards for distributing and disposing of needles and hypodermic syringes based on scientific evidence and best practices. The number of needles and hypodermic syringes disposed of through a program shall be at least equivalent to the number of needles and hypodermic syringes distributed through the program.

§ 36-798.52 Immunity

A. Notwithstanding title 13, chapter 34, an employee, volunteer or participant of a program established pursuant to section 36-798.51 may not be charged with or prosecuted for possession of any of the following:

1. A needle, hypodermic syringe or other injection supply item obtained from or returned to a program established pursuant to section 36-798.51.

2. A residual amount of a controlled substance contained in a used needle, used hypodermic syringe or used injection supply item obtained from or returned to a program established pursuant to section 36-798.51.

B. Subsection A of this section applies only if the person claiming immunity provides verification that a needle, hypodermic syringe or other injection supply item was obtained from an overdose and disease prevention program established pursuant to section 36-798.51.

Chapter 7 Disposition of Human Bodies

Article 1 Disposition of Certain Dead Human Bodies

§ 36-803 Power to require records and establish rules and regulations

The director of department of health services may require records and information and establish such rules, regulations and procedures in compliance with and in furtherance of this article as are convenient and proper for the discharge of its duties.

§ 36-804 Notice of bodies for burial at public expense; delivery

Every public officer, agent and servant of the state, and every county, city, town and public institution supported in whole or in part at public expense, having in his or its possession a dead human body for burial at public expense, shall notify the department within twenty-four hours after obtaining the body, and, upon instruction from the department, to deliver such body without fee or reward to the institution or person designated by the department.

§ 36-805 Disposal of body of person executed at state prison

The bodies, or portions thereof, of persons executed at the state prison not claimed by relatives or friends within twenty-four hours after death, may be disposed of for scientific purposes by the superintendent of the prison, with consent of the governor, upon instruction by the department as provided by section 36-804.

§ 36-806 Bodies not subject to disposition under this article

A. This article shall not apply:

1. To bodies of persons who have died with smallpox, diphtheria or scarlet fever.

2. If the deceased person during his last illness, without suggestion or solicitation, requested to be buried or cremated.

3. If within twenty-four hours after death or before actual delivery, whichever is longer, a person claiming to be and satisfying the officer in charge of the body that he is of kindred or is related by marriage to the deceased or a duly authorized representative thereof, shall claim the body for burial or cremation or request in writing that it be buried at public expense.

4. If within the time specified in paragraph 3 of this subsection a person claiming to be and satisfying the officer in charge of the body that he is a friend of the deceased, arranges to have the body properly buried or cremated without public expense.

B. Nothing in this article shall be construed to prevent any hospital, duly incorporated college or university or any duly licensed physician, surgeon or dentist from acquiring by gift or otherwise from persons having lawful authority to dispose thereof, the dead body of a human being for the purpose of post mortem examinations, dissection or other scientific use.

§ 36-807 Persons and institutions authorized to receive bodies; delivery expenses

A. The department or its agent may take and receive or direct the delivery of bodies reported to it as provided by section 36-804 to hospitals, colleges and universities, physicians, surgeons and dentists it deems entitled thereto which have requested in writing to receive them, preference being given to hospitals and institutions of higher learning.

B. All expenses of delivery as directed by the department shall be paid by those receiving the body.

§ 36-808 Violation; classification

A person who with criminal negligence refuses or fails to perform a duty imposed upon him by the provisions of this article or by rules and regulations of the director is guilty of a petty offense.

Article 2 Burial Responsibility

§ 36-831 Burial duties; notification requirements; failure to perform duty; veterans; immunity; definitions

A. Except as provided pursuant to subsection I or J of this section, the duty of burying the body of or providing other funeral and disposition arrangements for a dead person devolves in the following order:

1. If the dead person was married, on the surviving spouse unless:

(a) The dead person was legally separated from the person's spouse.

(b) A petition for divorce or for legal separation from the dead person's spouse was filed before the person's death and remains pending at the time of death.

2. On the person who is designated as having power of attorney for the decedent in the decedent's most recent health care power of attorney pursuant to chapter 32, article 2 of this title if that power of attorney specifically gives that person the authority to make decisions regarding the disposition of the decedent's remains or a durable power of attorney if that power of attorney specifically gives that person the authority to make decisions regarding the disposition of the decedent's remains.

3. If the dead person was a minor, on the parents.

4. On the adult children of the dead person.

5. On the dead person's parent.

6. On the dead person's adult sibling.

7. On the dead person's adult grandchild.

8. On the dead person's grandparent.

9. On an adult who exhibited special care and concern for the dead person.

10. On the person who was acting as the guardian of the person of the dead person at the time of death.

11. On any other person who has the authority to dispose of the dead person's body.

12. If none of the persons named in paragraphs 1 through 11 of this subsection is financially capable of providing for the burial or other funeral and disposition arrangements, or cannot be located on reasonable inquiry, on any person or fraternal, charitable or religious organization willing to assume responsibility.

13. If the dead person was a prisoner in the custody of the state department of corrections at the time of death and none of the persons named in paragraphs 1 through 11 of this subsection is willing to provide for the burial or other funeral and disposition arrangements, or cannot be located on reasonable inquiry, on the state department of corrections.

B. During a person's life, the person's family members that are listed in subsection A of this section may sign a waiver of decision making that waives their rights under this section relating to the disposition of the person's body when the person dies.

C. If none of the persons named in subsection A of this section is willing or financially able to bury or provide other funeral and disposition arrangements for a dead person, or if the person cannot be located after reasonable efforts have been made to do so, the county in which death occurs shall bury or place in a permanent care crypt the dead body or cremated remains of a dead body. The county officer who is responsible for determining financial eligibility or abandonment may conduct an investigation for that purpose. If the decedent is known to be an honorably discharged veteran or the surviving spouse of an honorably discharged veteran, the county shall notify the United States department of veterans affairs or a local veteran's organization, or both, of the death and give the department or that organization the opportunity to provide for the person's burial or for other funeral and disposition arrangements. If the department or organization is unable to provide for the burial of the veteran or the surviving spouse, the county shall ensure that the decedent is properly interred and that burial is made in a veterans' cemetery or a portion of a cemetery that is designated for the burial of veterans and spouses of veterans.

D. If there is more than one member of a category listed in subsection A, paragraph 3, 4, 5, 6, 7, 8 or 9 of this section entitled to serve as the authorizing agent, final arrangements may be made by any member of that category unless that member knows of any objection by another member of the category. If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.

E. If the county medical examiner or person performing the duties of the county medical examiner knows that the dead person is a member of a federally recognized Native American tribe located in this state, the county medical examiner or person performing the duties of the county medical examiner must notify the tribe and give the tribe the opportunity to provide for the person's burial or other funeral and disposition arrangements. If an autopsy is required by section 11-597, the county medical examiner or person performing the duties of the county medical examiner, if possible, shall complete the autopsy and return the remains to the federally recognized Native American tribe located in this state within four calendar days after the determined date of death.

F. A person on whom the duty prescribed in subsection A of this section is imposed who omits or is unwilling to perform that duty within a reasonable time or is prohibited from performing that duty under subsection I of this section is liable to the person performing the duty in an amount of two times the expenses the person incurred in providing for the burial or other funeral and disposition arrangements. The person who performs this duty may recover this amount in a civil action.

G. Notwithstanding the probate requirements of title 14, if a county is required to bury a person pursuant to subsection C of this section, the county may recover the burial costs from the decedent's estate. The county may record a lien on the decedent's estate and the lien takes priority over a beneficiary deed. A financial institution in possession of monies in an account in the decedent's name must reimburse the county for the burial costs on presentation by the county of an affidavit that certifies:

1. The date of the decedent's death.

2. That, pursuant to this section, the county performed the decedent's burial.

3. The total burial costs incurred by the county.

H. A person, a corporation or an agency of government that provides for the burial or other funeral and disposition arrangements on the instructions of a person described in subsection A of this section is immune from civil liability:

1. For failing to honor the wishes of the decedent or the wishes of a person who has a higher priority in subsection A or C of this section if the person, corporation or agency of government was not aware, after reasonable inquiry, of the contrary wishes.

2. For refusing to follow conflicting directions of persons who have the same priority in subsection A of this section.

3. For following directions of a personal representative that are consistent with the written testamentary instructions of the decedent.

I. The duty to bury or to provide other funeral and disposition arrangements devolves to the next person in the order prescribed pursuant to subsection A of this section if the person who is otherwise responsible for performing this duty is charged with the criminal death of the person to whom the duty is owed and the funeral director is aware of the charge. The person who performs this duty may recover costs as prescribed in subsection F of this section. If the charges against the person on whom this duty originally fell are subsequently dismissed or are resolved in that person's favor on the merits, the person is responsible for only the actual costs.

J. If the decedent died while serving in any branch of the United States armed forces, the United States reserve forces or the national guard, and completed a United States department of defense record of emergency data, DD form 93, or its successor form, the duty to bury the decedent or to provide other funeral and disposition arrangements for the decedent devolves on the person authorized by the decedent pursuant to that form.

K. A person that possesses unclaimed cremated remains may release to the United States department of veterans affairs or a veterans' service organization verification information associated with the remains to verify whether the remains are of a veteran or a veteran's dependent eligible to be interred in a veterans' cemetery if the person has possessed the cremated remains for at least one year, a person described in subsection A of this section has not claimed the cremated remains and the person made a reasonable effort to locate a relative of the decedent to claim the remains. If the person receives notice from the United States department of veterans affairs or a veterans' service organization that the unclaimed cremated remains are the remains of a veteran or a veteran's dependent eligible to be interred in a veterans' cemetery, the person may transfer the cremated remains to a veterans' service organization, which must ensure that the cremated remains are interred in a veterans' cemetery or transport the cremated remains to a veterans' cemetery for burial.

L. A person that releases verification information pursuant to subsection K of this section or that transfers cremated remains to a veterans' service organization or a veterans' cemetery pursuant to subsection K of this section is immune from civil liability for damages resulting from the release or transfer. A veterans' service organization that inters cremated remains in or transports cremated remains to a veterans' cemetery pursuant to subsection K of this section is immune from civil liability for damages arising from the interment.

M. For the purposes of this section:

1. "Person" includes a natural person, a corporation, a company, a partnership, a firm, an association, a society, the United States, this state, any territory, state or country, an Arizona federally recognized Native American tribe, any political subdivision of this state or a public or private corporation, a partnership or association or a veterans' service organization.

2. "Verification information" means data required by the United States department of veterans affairs to verify whether a person is a veteran or a veteran's dependent and is eligible for burial in a veterans' cemetery, including a copy of the person's death certificate and the person's name, service number, social security number, date of birth, date of death and place of birth.

3. "Veterans' service organization" means a veterans' organization that is chartered by the United States Congress, that is recognized by the United States department of veterans affairs or that qualifies as a charitable organization that is recognized under either section 501(c)(3) or 501(c)(19) of the internal revenue code and that is organized for the verification and burial of veterans and their dependents.

N. For the purposes of this article, "burial" includes cremation.

§ 36-831.01 Disposition of remains; duty to comply with decedent's wishes; exemption from liability

A. If the person on whom the duty of burial is imposed pursuant to section 36-831 is aware of the decedent's wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.

B. No funeral establishment or crematory licensed pursuant to title 32, chapter 12 or 20 or a cemetery certified under title 32, chapter 20, that relies in good faith upon the instructions for disposition of a body given by the person authorized pursuant to section 36-831 shall be subject to civil liability or subject to disciplinary action for disposition of the remains in accordance with the instructions.

§ 36-832 Authorization for post-mortem examination

A. In addition to the provisions set forth in section 11-597, whichever of the following assumes custody of the body for purposes of burial may give permission to a licensed physician to conduct a post-mortem examination:

1. Father.

2. Mother.

3. Husband.

4. Wife.

5. Adult child.

6. Guardian.

7. Next of kin.

B. In the absence of any of the persons named in subsection A of this section, a friend or one charged with the responsibility of burial may give permission to a licensed physician to conduct a post-mortem examination.

Article 3 Revised Uniform Anatomical Gift Act

§ 36-841 Definitions

In this article, unless the context otherwise requires:

1. "Adult" means an individual who is at least eighteen years of age.

2. "Agent" means an individual who is either:

(a) Authorized to make health care decisions on the principal's behalf pursuant to a health care power of attorney.

(b) Expressly authorized to make an anatomical gift on the principal's behalf pursuant to any other record signed by the principal.

3. "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research or education.

4. "Auxiliary aids and services" means all of the following:

(a) Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with a hearing impairment.

(b) Qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with a visual impairment.

(c) Information in a format that is readily accessible and understandable to individuals with a cognitive, neurological, developmental or intellectual disability.

(d) Acquisition or modification of equipment or devices.

(e) Supported decision-making services.

(f) Other services and actions similar to those described in subdivisions (a), (b), (c), (d) and (e) of this paragraph.

5. "Decedent" means a deceased individual whose body or part is or may be the source of an anatomical gift. Decedent includes a stillborn infant and, subject to restrictions imposed by any other law, a fetus.

6. "Disability" has the same meaning prescribed in section 3 of the Americans with disabilities act of 1990 (P.L. 101-336; 104 stat. 327; 42 United States Code section 12102).

7. "Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent or guardian of the individual who makes, amends, revokes or refuses to make an anatomical gift, or another adult who exhibited special care and concern for the individual. Disinterested witness does not include a person to which an anatomical gift could pass pursuant to section 36-850.

8. "Document of gift" means a donor card or other record that is used to make an anatomical gift. Document of gift includes a statement or symbol on a driver license, identification card or donor registry.

9. "Donor" means an individual whose body or part is the subject of an anatomical gift.

10. "Donor registry" means a database that contains records of anatomical gifts.

11. "Driver license" means a license or permit that is issued pursuant to title 28 to operate a vehicle, whether or not conditions are attached to the license or permit.

12. "Eye bank" means a person that is licensed or regulated under federal or state law or is accredited by a nationally recognized accrediting agency to engage in recovering, screening, testing, processing, storing or distributing human eyes or portions of human eyes.

13. "Guardian" means a person who is appointed by a court to make decisions regarding the support, care, education, health or welfare of an individual. Guardian does not include a guardian ad litem.

14. "Health care facility":

(a) Means a facility that is licensed, certified or otherwise authorized to provide health care in the ordinary course of business.

(b) Includes a hospital, nursing facility, laboratory, intermediate care facility, mental health facility, transplant center and any other facility for individuals with intellectual or developmental disabilities.

15. "Health care provider":

(a) Means an individual or facility that is licensed, certified or otherwise authorized to provide health care in the ordinary course of business or professional practice.

(b) Includes a physician, hospital, nursing facility, laboratory, intermediate care facility, mental health facility, transplant center and any other facility for individuals with intellectual or developmental disabilities.

16. "Hospital" means a facility that is licensed as a hospital under the laws of any state or that is operated as a hospital by the United States, a state or a subdivision of a state.

17. "Identification card" means a nonoperating identification license that is issued by the motor vehicle division of the department of transportation.

18. "Know" means to have actual knowledge.

19. "Minor" means an individual who is under eighteen years of age.

20. "Nontransplant anatomical donation organization" means a tissue bank or other organization that facilitates nontransplant anatomical donations, including facilitation through referrals, obtaining informed consent or authorization and assessing donor acceptability and through the acquisition, traceability, transporting, preparation, packaging, labeling, storage, release, evaluating intended use, distribution and final disposition of nontransplant anatomical donations.

21. "Organ procurement organization" means a qualified organ procurement organization under 42 United States Code section 273 that is currently certified or recertified in accordance with that federal law.

22. "Parent" means a parent whose parental rights have not been terminated.

23. "Part" means an organ, eye or tissue of a human being. Part does not include the whole body.

24. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

25. "Physician" means an individual who is licensed as a physician pursuant to title 32, chapter 13 or 17.

26. "Principal" means a person who is the subject of a health care power of attorney.

27. "Procurement organization" means any of the following:

(a) An organ procurement organization.

(b) A tissue bank.

(c) An eye bank.

(d) A storage facility that is licensed, accredited or approved under federal law or the laws of any state to engage in the recovery, screening, testing, processing or storage of human bodies or parts.

(e) A nontransplant anatomical donation organization.

28. "Prospective donor" means an individual who is dead or near death and who has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research or education. Prospective donor does not include an individual who has made a refusal.

29. "Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.

30. "Recipient" means an individual into whose body a decedent's part has been or is intended to be transplanted.

31. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

32. "Refusal" means a record created pursuant to section 36-846 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part.

33. "Sign", with respect to the present intent to authenticate or adopt a record, means either:

(a) To execute or adopt a tangible symbol.

(b) To attach to or logically associate with the record an electronic symbol, sound or process.

34. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

35. "Technician" means an individual who is determined to be qualified to remove or process parts by an appropriate organization that is licensed or regulated under federal or state law or is accredited by a nationally recognized accrediting agency. Technician includes an enucleator.

36. "Tissue" means all or a portion of the human body other than blood, an organ or an eye unless the blood, organ or eye is donated for the purpose of research or education.

37. "Tissue bank" means a person that is licensed or regulated under federal or state law or is accredited as a tissue bank by a nationally recognized accrediting agency to engage in the recovery, screening, testing, processing, storage or distribution of tissue.

38. "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.

§ 36-842 Applicability

This article applies to an anatomical gift or amendment to, revocation of or refusal to make an anatomical gift, whenever made.

§ 36-843 Who may make an anatomical gift before donor's death

Subject to the requirements of section 36-847, an anatomical gift may be made during the life of the donor for the purpose of transplantation, therapy, research or education in the manner provided in section 36-844 by:

1. The donor, if the donor is an adult or is a minor who is either:

(a) Emancipated.

(b) Authorized under state law to apply for a driver license because the donor is at least the youngest age at which an individual may apply for any type of driver license.

2. An agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift.

3. If the donor is an unemancipated minor, a parent of the donor.

4. The donor's guardian.

§ 36-844 Manner of making anatomical gift before donor's death

A. A donor may make an anatomical gift:

1. By registering to be a donor on the donor registry established by section 36-858.

2. In a will.

3. During a terminal illness or injury of the donor by any form of communication that is addressed to at least two adults, at least one of whom is a disinterested witness.

4. As provided in subsection B of this section.

B. A donor or other person authorized to make an anatomical gift pursuant to section 36-843 may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or the other person and must:

1. Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person.

2. State that it has been signed and witnessed as provided in paragraph 1 of this subsection.

C. Revocation, suspension, expiration or cancellation of a driver license or an identification card on which an anatomical gift is indicated does not invalidate the gift.

D. An anatomical gift made by will takes effect on the donor's death whether or not the will is probated. Invalidation of the will after the donor's death does not invalidate the gift.

§ 36-845 Amending or revoking anatomical gift before donor's death

A. Subject to the requirements of section 36-847, a donor or other person authorized to make an anatomical gift pursuant to section 36-843 may amend or revoke an anatomical gift by:

1. A record signed by either:

(a) The donor.

(b) The other person.

(c) Subject to the requirements of subsection B of this section, another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign.

2. A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.

B. A record signed pursuant to subsection A, paragraph 1, subdivision (c) must:

1. Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person.

2. State that it has been signed and witnessed as prescribed in paragraph 1 of this subsection.

C. Subject to the requirements of section 36-847, a donor or other person authorized to make an anatomical gift pursuant to section 36-843 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.

D. A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury that is addressed to at least two adults, at least one of whom is a disinterested witness.

E. A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as prescribed in subsection A of this section.

§ 36-846 Refusal to make anatomical gift; effect of refusal

A. An individual may refuse to make an anatomical gift of the individual's body or part by:

1. A record signed by either:

(a) The individual.

(b) Subject to the requirements of subsection B of this section, another individual acting at the direction of the individual if the individual is physically unable to sign.

2. The individual's will, whether or not the will is admitted to probate or invalidated after the individual's death.

3. Any form of communication made by the individual during the individual's terminal illness or injury that is addressed to at least two adults, at least one of whom is a disinterested witness.

B. A record signed pursuant to subsection A, paragraph 1, subdivision (b) of this section must:

1. Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual.

2. State that it has been signed and witnessed as prescribed in paragraph 1 of this subsection.

C. An individual who has made a refusal may amend or revoke the refusal:

1. In the manner prescribed in subsection A of this section for making a refusal.

2. By subsequently making an anatomical gift pursuant to section 36-844 that is inconsistent with the refusal.

3. By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.

D. Except as otherwise prescribed in section 36-847, subsection H, in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part.

§ 36-847 Preclusive effect of anatomical gift, amendment or revocation

A. Except as otherwise prescribed in subsections G and H of this section and subject to the requirements of subsection F of this section, in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending or revoking an anatomical gift if the donor made an anatomical gift pursuant to section 36-844 or an amendment to an anatomical gift pursuant to section 36-845.

B. A donor's revocation of an anatomical gift pursuant to section 36-845 is not a refusal and does not bar another person specified in section 36-843 or 36-848 from making an anatomical gift pursuant to section 36-844 or 36-849.

C. If a person other than the donor makes an unrevoked anatomical gift pursuant to section 36-844 or an amendment to an anatomical gift pursuant to section 36-845, another person may not make, amend or revoke the gift pursuant to section 36-849.

D. A revocation of an anatomical gift pursuant to section 36-845 by a person other than the donor does not bar another person from making an anatomical gift pursuant to section 36-844 or 36-849.

E. In the absence of an express contrary indication by the donor or other person authorized to make an anatomical gift pursuant to section 36-843, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.

F. In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift pursuant to section 36-843, an anatomical gift of a part for one or more of the purposes described in section 36-843 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person pursuant to section 36-844 or 36-849.

G. If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift.

H. If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal.

§ 36-848 Who may make anatomical gift of decedent's body or part

A. Subject to the requirements of subsections B and C of this section, and unless barred pursuant to section 36-846 or 36-847, an anatomical gift for transplantation, therapy, research or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:

1. An agent of the decedent at the time of death who could have made an anatomical gift pursuant to section 36-843 immediately before the decedent's death.

2. The decedent's spouse.

3. The decedent's adult children.

4. The decedent's parents.

5. If the decedent is unmarried, the decedent's domestic partner, if another person had not assumed financial responsibility for the decedent.

6. The decedent's adult siblings.

7. The decedent's adult grandchildren.

8. The decedent's grandparents.

9. An adult who exhibited special care and concern for the decedent.

10. The persons who were acting as the guardians of the person of the decedent at the time of death.

11. Any other person who has the authority to dispose of the decedent's body.

B. If there is more than one member of a class that is listed in subsection A, paragraph 1, 3, 4, 5, 6, 7, 8 or 10 of this section who is entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass pursuant to section 36-850 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.

C. A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class pursuant to subsection A of this section is reasonably available to make or to object to the making of an anatomical gift.

D. If the decedent's body is not within the custody of the county medical examiner, the county health officer may release and permit the removal of any part from the body in the county health officer's custody for transplantation, therapy, education or research if the requirements of section 36-860, subsection A, are met.

§ 36-849 Manner of making, amending or revoking anatomical gift of decedent's body or part

A. A person who is authorized to make an anatomical gift pursuant to section 36-848 may make an anatomical gift by a document of gift signed by the person making the gift or by that person's oral communication that is electronically recorded or that is contemporaneously reduced to a record and that is signed by the individual receiving the oral communication.

B. Subject to the requirements of subsection C of this section, an anatomical gift by a person who is authorized pursuant to section 36-848 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized pursuant to section 36-848 may be either:

1. Amended only if a majority of the reasonably available members agree to the amending of the gift.

2. Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift.

C. A revocation pursuant to subsection B of this section is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, physician or technician knows of the revocation.

§ 36-850 Persons who may receive anatomical gifts; purpose of anatomical gift

A. An anatomical gift may be made to the following named in the document of gift:

1. An organ procurement organization.

2. A hospital, accredited medical school, dental school, college, university, procurement organization or any other appropriate person, for research or education.

3. A search and rescue unit established or recognized by any federal, state, county or local governmental entity to train search and rescue canines.

4. Subject to the requirements of subsection B of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part.

5. An eye bank or a tissue bank.

B. If an anatomical gift to an individual pursuant to subsection A, paragraph 4 of this section cannot be transplanted into the individual, the part passes pursuant to subsection G of this section in the absence of an express contrary indication by the person making the anatomical gift.

C. If an anatomical gift of one or more specific parts or of all parts is made in a document of gift that does not name a person described in subsection A of this section but that identifies the purpose for which an anatomical gift may be used, the gift passes:

1. To the appropriate eye bank if the part is an eye and the gift is for the purpose of transplantation or therapy.

2. To the appropriate tissue bank if the part is tissue and the gift is for the purpose of transplantation or therapy.

3. To the organ procurement organization as custodian of the organ if the part is an organ and the gift is for the purpose of transplantation or therapy.

4. To the appropriate procurement organization if the part is an organ, an eye or tissue and the gift is for the purpose of research or education.

5. To the sheriff of the county in which the gift was made, who may transfer the gift to any canine search and rescue unit established or recognized by any federal, state, county or local governmental entity, and the gift is for the purpose of training search and rescue canines.

D. For the purposes of subsection C of this section, if there is more than one purpose of an anatomical gift stated in the document of gift but the purposes are not stated in any priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education or for training search and rescue canines.

E. If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in subsection A of this section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy and the gift passes pursuant to subsection G of this section.

F. If a document of gift specifies only a general intent to make an anatomical gift by words such as "donor", "organ donor" or "body donor", or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy and the gift passes pursuant to subsection G of this section.

G. For the purposes of subsections B, E and F of this section:

1. If the part is an eye, the gift passes to the appropriate eye bank.

2. If the part is tissue, the gift passes to the appropriate tissue bank.

3. If the part is an organ, the gift passes to the organ procurement organization as custodian of the organ.

H. An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift pursuant to subsection A, paragraph 4 of this section, passes to the organ procurement organization as custodian of the organ.

I. If an anatomical gift does not pass pursuant to subsection A, B, C, D, E, F, G or H of this section or the decedent's body or part is not used for transplantation, therapy, research or education or for training search and rescue canines, custody of the body or part passes to the person who is under an obligation to dispose of the body or part pursuant to section 36-831.

J. A person may not accept an anatomical gift if the person knows that the gift was not effectively made pursuant to section 36-844 or 36-849 or if the person knows that the decedent made a refusal pursuant to section 36-846 that was not revoked. For the purposes of this subsection, if a person knows that an anatomical gift was made in a document of gift, the person is deemed to know of any amendment of the gift, revocation of the gift or refusal to make an anatomical gift in the same document of gift.

K. Except as otherwise provided in subsection A, paragraph 4 of this section, this article does not affect the allocation of organs for transplantation or therapy.

§ 36-850.01 Organ transplant eligibility; individuals with disabilities; discrimination prohibited

A. A health care provider may not, solely on the basis of an individual's disability, do any of the following:

1. Determine that the individual is ineligible to receive an organ transplant.

2. Deny the individual medical or other services related to an organ transplant, including evaluation, surgery, counseling and postoperative treatment.

3. Refuse to refer the individual to a transplant hospital or other related specialist for evaluation or receipt of an organ transplant.

4. Refuse to place the individual on an organ transplant waiting list or place the individual at a position lower in priority on the list than the position the individual would be placed if not for the individual's disability.

5. Decline insurance coverage for the individual for any procedure associated with the receipt of an organ transplant or for related services if the procedure or services would be covered under such insurance for the individual if not for the individual's disability.

B. Notwithstanding subsection A of this section, a health care provider may consider an individual's disability when making a treatment recommendation or decision solely to the extent that a physician, following an individualized evaluation of the potential transplant recipient, determines that the disability is medically significant to the organ transplant. This subsection does not require a referral or recommendation for, or the performance of, a medically inappropriate organ transplant.

C. A health care provider may not consider an individual's inability to independently comply with posttransplant medical requirements as medically significant for the purposes of subsection B of this section if the individual has a known disability and the necessary support system to assist the individual in reasonably complying with the requirements.

D. A health care facility shall make reasonable modifications in its policies, practices or procedures as necessary to allow individuals with a disability access to organ transplant-related services, including transplant-related counseling, information or treatment, unless the health care facility can demonstrate that making the modifications would fundamentally alter the nature of the services or would impose an undue hardship on the health care facility. Reasonable modifications in policies, practices and procedures may include:

1. Communicating with persons supporting or assisting with the individual's postsurgical and posttransplant care, including medication.

2. Considering the support available to the individual in determining whether the individual is able to reasonably comply with posttransplant medical requirements, including support provided by any of the following:

(a) Family.

(b) Friends.

(c) Home and community-based services, including home and community-based services funded by any of the following:

(i) Medicaid.

(ii) Medicare.

(iii) A health plan in which the individual is enrolled.

(iv) Any other program or source of funding available to the individual.

E. A health care provider shall make reasonable efforts to comply with the policies, practices and procedures, as applicable, developed by a health care facility under subsection D of this section as necessary to allow an individual with a known disability access to organ transplant-related services, including transplant-related counseling, information or treatment, unless the health care provider can demonstrate that compliance would fundamentally alter the nature of the services or would impose an undue hardship on the health care provider.

F. A health care provider shall make reasonable efforts to provide auxiliary aids and services to an individual with a known disability seeking organ transplant-related services, including organ transplant-related counseling, information or treatment, as necessary to allow the individual access to those services, unless the health care provider can demonstrate that providing the transplant-related services with auxiliary aids and services would fundamentally alter the transplant-related services provided or would impose an undue hardship on the health care provider.

G. A health care provider shall comply with the requirements of the Americans with disabilities act of 1990 (42 United States Code sections 12101 through 12213) to the extent that act applies to the health care provider. This subsection does not require a health care provider to comply with that act if the act does not otherwise require compliance by the health care provider.

H. This section applies to each stage of the organ transplant process and related services to an organ transplant, including all of the following:

1. Evaluation.

2. Counseling.

3. Treatment, including postoperative treatment and care.

4. Providing information.

5. Any other service recommended or required by a physician.

I. A violation of this section by a health care provider is grounds for disciplinary action by the regulatory agency or board that issued the license, certificate or other authority to the health care provider. Before a regulatory agency or board may take disciplinary action against a health care provider for a violation, the applicable regulatory agency or board shall both:

1. Notify the health care provider of the agency's or board's finding that the health care provider violated or is violating this section or a rule adopted pursuant to this section.

2. Provide the health care provider with an opportunity to correct the violation without penalty or reprimand.

J. A physician who in good faith determines that an individual's disability is medically significant, as described in subsection B of this section, to the organ transplant does not violate this section.

K. A health care provider who in good faith makes a treatment recommendation or decision on the basis of a physician's determination that an individual's disability is medically significant, as described in subsection B of this section, to the organ transplant does not violate this section.

§ 36-850.02 Organ transplant; discrimination; violation; civil action

A. If an individual believes that a health care provider or health care facility has violated or is violating section 36-850.01, the affected individual may commence a civil action for injunctive and other equitable relief against the health care provider or health care facility for the purposes of enforcing compliance with that section. The action may be brought in the superior court in the county where the affected individual resides or resided or was denied the organ transplant or referral.

B. In an action brought under this section, the court shall give the action priority on its docket and expedited review, and may grant injunctive or other equitable relief, including any of the following:

1. Requiring auxiliary aids or services to be made available for a qualified recipient.

2. Requiring the modification of a policy, practice or procedure of the health care provider or health care facility.

3. Requiring that health care facilities be made readily accessible to and usable by a qualified recipient.

C. This section does not limit or replace available remedies under the Americans with disabilities act of 1990, as amended (42 United States Code sections 12101 through 12213), or any other applicable law.

D. This section does not create a right to compensatory or punitive damages against a health care provider or health care facility.

§ 36-851 Delivery of document of gift not required; right to examine

A. A document of gift need not be delivered during the donor's lifetime to be effective.

B. On or after an individual's death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass pursuant to section 36-850.

§ 36-851.01 Procurement organizations; licensure; renewal; fees; penalties; exceptions

A. A person may not act as a procurement organization in this state unless the person is licensed by the department of health services as a procurement organization. The person shall apply in writing to the director of the department on a form specified by the director, shall include all information requested in the application and shall pay the fees prescribed by the director.

B. The director shall grant a procurement organization license to a person if the organization either is accredited by a nationally recognized accrediting agency that is approved by the department of health services and maintains full accreditation with the accrediting agency or meets the requirements prescribed in section 36-851.03 and the rules adopted by the department.

C. A license under this section is valid for two years and must be renewed every two years. A person shall file an application for renewal at least thirty days before the expiration of the current license.

D. Each procurement organization applying for licensure or license renewal under this section shall pay all applicable fees as prescribed by the director. All fees collected pursuant to this section for the licensure and license renewal of procurement organizations shall be deposited in the health services licensing fund established by section 36-414.

E. The director may sanction, impose civil penalties on or, pursuant to title 41, chapter 6, article 10, suspend or revoke, in whole or in part, the license of any procurement organization if any person who is an owner, officer, agent or employee of the procurement organization is in or continues to be in violation of this article or the rules of the department of health services adopted pursuant to this article.

F. This section does not apply to any of the following:

1. An organ procurement organization as described by 42 United States Code section 273 that is designated for this state by the secretary of the United States department of health and human services pursuant to 42 United States Code section 1320b-8.

2. A procurement organization that is regulated by the United States food and drug administration in connection with the recovery of human tissue intended for transplantation pursuant to 21 Code of Federal Regulations part 1270.

3. A procurement organization as defined in section 36-841, paragraph 27, subdivision (d).

4. A procurement organization that is affiliated with an accredited educational institution in connection with the education of students enrolled in a degree-granting program for health professionals.

5. A procurement organization that recovers anatomical gifts for research or education, including for quality improvement or quality assurance, and that is affiliated with a hospital that is licensed pursuant to chapter 4 of this title.

6. A hospital that is licensed pursuant to chapter 4 of this title.

§ 36-851.02 Procurement organizations; deemed status; requirements; inspection

A procurement organization that is licensed pursuant to section 36-851.01 by virtue of its accreditation status:

1. Is deemed to meet health and safety requirements that are equivalent to those set forth in section 36-851.03 and is not required to meet the requirements prescribed in section 36-851.03 except as specified in paragraph 2 of this section if the procurement organization maintains its accredited status with the accrediting agency.

2. Shall comply with all of the following as adopted in rule by the department of health services:

(a) The proper use and maintenance of donor consent forms.

(b) The implementation and maintenance of proper identification systems for bodies and disarticulated items.

(c) The implementation and maintenance of protocols and materials for procedures used by the procurement organization to properly screen end users.

(d) The proper documentation and disclosure of the disease status of tissue specimens to end users.

(e) Labeling, packaging, transport and distribution policies and procedures.

(f) Final disposition procedures.

3. Shall provide a designated area for tissue recovery that does not operate in a funeral establishment for the recovery of whole bodies for medical research and education.

4. Is subject to inspection by the department of health services at any time with respect to compliance with the requirements of paragraph 2 of this section.

§ 36-851.03 Procurement organizations; requirements; records; rules; inspection

A. Except as provided in section 36-851.02, each procurement organization that is required to be licensed pursuant to section 36-851.01 shall do all of the following:

1. Designate a medical director who is a physician licensed pursuant to title 32, chapter 13 or 17 and who provides medical guidance to determine donor eligibility.

2. Employ a director who holds at least a bachelor's degree in a related science from an accredited university and who is responsible for all licensed activities of the organization.

3. Comply with all of the following as adopted in rule by the department of health services:

(a) The proper use and maintenance of donor consent forms.

(b) The implementation and maintenance of proper identification systems for bodies and disarticulated items.

(c) The implementation and maintenance of protocols and materials for procedures used by the procurement organization to properly screen end users.

(d) The proper documentation and disclosure of the disease status of tissue specimens to end users.

(e) Labeling, packaging, transport and distribution policies and procedures.

(f) Final disposition procedures.

4. Implement and maintain all of the following:

(a) Standard operating procedures for all licensed functions of the organization.

(b) A safety awareness and blood-borne pathogen training program that complies with state and federal law.

(c) A cleaning program that mitigates potential cross-contamination between donors.

5. Provide a designated area for tissue recovery that:

(a) Is open to inspection by the department of health services with or without notice.

(b) Does not operate in a funeral establishment for the recovery of whole bodies for medical research and education.

6. Properly track donors and label tissue by doing both of the following:

(a) Assigning a unique identifying number to each donor and using this number for all tissue from that donor that is recovered and distributed.

(b) Affixing labels with the following information on all nontransplant tissue specimens:

(i) A statement that universal precautions will be used.

(ii) A statement that the specimen is not for transplant or clinical use.

(iii) Any condition or limitation regarding the use of the specimen.

(iv) Contact information for the procurement organization.

7. Maintain the following records for ten years after the last date of tissue distribution:

(a) A copy or recorded consent of the donation authorization.

(b) A copy of the donor's death certificate and transit permit issued by the state where the death occurred.

(c) A copy of the donor's physical assessment and risk assessment questionnaire.

(d) A copy of the donor's serological results, when applicable.

(e) A copy of all documentation relating to tissue recovery, storage and distribution activities.

B. The department of health services shall adopt rules that follow, as nearly as practicable, the requirements on equivalent subjects specified in subsection A of this section that are set forth in the accreditation requirements of a nationally recognized accrediting agency that is approved by the department.

C. A procurement organization that is subject to the requirements of this section is subject to inspection by the department of health services at any time to evaluate the compliance by the procurement organization with the requirements of this article and the rules adopted by the department.

§ 36-852 Rights and duties of procurement organizations and others

A. When a hospital refers an individual at or near death to an organ procurement organization, the organization shall make a reasonable search of the records of any donor registry that it knows exists for the geographical area in which the individual resides to determine if the individual has made an anatomical gift.

B. A procurement organization must be allowed reasonable access to information in the records of the donor registry to determine if an individual at or near death is a donor.

C. When a hospital refers an individual at or near death to an organ procurement organization, the organ procurement organization or the appropriate eye bank or tissue bank may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent.

D. Unless otherwise prohibited by law, at any time after a donor's death, the person to which a part passes pursuant to section 36-850 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.

E. Unless otherwise prohibited by law, an examination pursuant to subsection C or D of this section may include an examination of all medical and dental records of the donor or prospective donor.

F. On the death of a minor who was a donor or who had signed a refusal, unless a procurement organization knows the minor is emancipated, the appropriate procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.

G. On referral by a hospital pursuant to subsection A of this section, the appropriate procurement organization must make a reasonable search for any person listed in section 36-848 who has priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended or revoked, it shall promptly advise the other person of all relevant information.

H. Subject to the requirements of section 36-850, subsection I and section 36-861, the rights of the person to which a part passes pursuant to section 36-850 are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and this article, a person who accepts an anatomical gift of an entire body may allow embalming, burial or cremation and use of remains in a funeral service. If the gift is of a part, the person to which the part passes pursuant to section 36-850, on the death of the donor and before embalming, burial or cremation, shall cause the part to be removed without unnecessary mutilation.

I. The physician who attends the decedent at death and the physician who determines the time of the decedent's death may not participate in the procedures for removing or transplanting a part from the decedent.

J. A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.

§ 36-853 Coordination of procurement and use

A. Each hospital in this state shall enter into one or more agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.

B. If there has been an anatomical gift, the institution where the removal of any donated parts occurs shall notify the funeral director or the person acting in that capacity who first assumes custody of the body about the removal of the body parts.

§ 36-854 Sale or purchase of parts; classification

A. Except as otherwise provided in subsection B, a person who for valuable consideration knowingly purchases or sells a part for transplantation or therapy, if removal of a part from an individual is intended to occur after the individual's death, is guilty of a class 3 felony.

B. This section does not prevent a person from charging a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation or disposal of a part.

§ 36-855 Prohibited acts; classification

A person who, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces or obliterates a document of gift, an amendment or revocation of a document of gift or a refusal of gift is guilty of a class 6 felony.

§ 36-856 Immunity

A. A person is not subject to civil liability, criminal prosecution or administrative proceedings for good faith acts or omissions related to procurement of parts in compliance with this article. All acts and omissions are presumed to be in good faith unless the acts or omissions are done with intent to maliciously cause injury.

B. A person who makes an anatomical gift and the donor's estate are not subject to civil or criminal liability for any injury or damage that results from the making or use of the gift.

C. In determining whether an anatomical gift has been made, amended or revoked pursuant to this article, a person may rely on representations of an individual listed pursuant to section 36-848, subsection A, paragraph 2, 3, 4, 5, 6, 7 or 8 relating to the individual's relationship to the donor or prospective donor unless the person knows that the representation is untrue.

§ 36-857 Choice of law; presumption of validity

A. A document of gift is valid if executed in accordance with:

1. This article.

2. The laws of the state or country where it was executed.

3. The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence or was a national at the time the document of gift was executed.

B. If a document of gift is valid under this section, the laws of this state govern the interpretation of the document of gift.

C. A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.

§ 36-858 Donor registry

A. An organ procurement organization shall establish a donor registry in this state.

B. The motor vehicle division of the department of transportation shall cooperate with the organ procurement organization that administers a donor registry to transfer to the donor registry all relevant information regarding a donor's making of an anatomical gift.

C. A donor registry must:

1. Allow a donor or other person authorized pursuant to section 36-843 to include on the donor registry a statement or symbol that the anatomical gift was made by the donor.

2. Be accessible to a procurement organization to allow it to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made an anatomical gift.

3. Be accessible seven days a week on a twenty-four hour basis for purposes of paragraphs 1 and 2.

D. Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor or person who made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, if the donor or prospective donor has made, amended or revoked an anatomical gift.

E. This section does not prohibit any person from establishing or maintaining a donor registry that is not established by or under contract with this state. Any such registry must comply with the requirements of subsections C and D of this section.

§ 36-859 Effect of anatomical gift on health care directive; definitions

A. If the terms of a prospective donor's living will or health care directive and the express or implied terms of an anatomical gift made by the prospective donor, or made by any other person, appear to be in conflict with regard to the administration of measures necessary to ensure the medical suitability of a part for transplantation or therapy, appropriate consultation shall occur to determine the prospective donor's actual or likely intent in resolving that conflict. Resolution of the conflict shall occur as expeditiously as possible. If the prospective donor is unable to resolve the conflict, another person authorized by law to make health care decisions on behalf of the prospective donor shall resolve the conflict. Before resolution of the conflict, measures necessary to ensure the medical suitability of the part may not be withheld or withdrawn from the prospective donor if withholding or withdrawing of the measures is not contraindicated by appropriate end of life care.

B. For the purposes of subsection A of this section, appropriate consultation must include the prospective donor's attending physician, the hospital’s ethics committee or, if none, a designated representative of the hospital, and the agent acting under the prospective donor's health care directive or, if none, any other individual authorized by law to make health care decisions on behalf of the prospective donor and may include the appropriate procurement organization and any other person authorized to make an anatomical gift pursuant to section 36-848. If the appropriate consultation does not resolve the conflict, the agent acting under the prospective donor's health care directive or, if none, any other individual authorized by law to make health care decisions on behalf of the prospective donor, or the majority of such individuals, is empowered to make the final decision of how to proceed.

C. For the purposes of this section:

1. "Health care decision" means any decision made regarding the health care of the prospective donor.

2. "Health care directive" has the same meaning prescribed in section 36-3201.

3. "Living will" has the same meaning prescribed in section 36-3201.

§ 36-860 County medical examiners; authorization

A. The medical examiner or individual legally delegated that authority may release and permit the removal of a part from or all of a body within the custody of that official for transplantation, therapy, research or education pursuant to title 11, chapter 3, article 12 if the part is the subject of an anatomical gift and:

1. A request has been received from a procurement organization.

2. The organ procurement organization has made a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent's medical records and, if the decedent has not executed a document of gift or has not refused to make an anatomical gift, inform persons listed in section 36-848, subsection A, of the person's option to make or object to making an anatomical gift.

3. The official does not know of a refusal by the decedent or an objection by a person having priority to act as listed in section 36-848, subsection A.

4. The removal will be by a physician, surgeon or trained technician.

5. The removal will be in accordance with accepted medical standards.

6. The removal will not interfere with any death investigation.

7. Cosmetic restoration will be done, if appropriate.

B. An official who releases and permits the removal of a part shall maintain a permanent record of the name of the decedent, the person making the request, the date and purpose of the request, the part requested and the person to whom it was released.

§ 36-861 Medical examiner; release of information

A. The county medical examiner or individual legally delegated that authority shall release the name, contact information and available medical and social history of a decedent whose body is under the jurisdiction of the medical examiner to:

1. The designated procurement organization, hospital, accredited medical school, dental school, college or university of an anatomical gift executed pursuant to section 36-844.

2. Any procurement organization under procedures adopted by the medical examiner for coordination of the procurement of anatomical gifts.

B. If the decedent's body or part is medically suitable for transplantation, therapy, research or education, the medical examiner, or individual legally delegated that authority, shall release postmortem examination results to a procurement organization. The procurement organization may make a subsequent disclosure of the postmortem examination results or other information received from the medical examiner only if relevant to transplantation or therapy.

§ 36-862 Uniformity of application and construction

In applying and construing this article, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§ 36-863 Relation to electronic signatures in global and national commerce act

This act modifies, limits and supersedes the electronic signatures in global and national commerce act, but does not modify, limit or supersede section 101(a) of that act (15 United States Code section 7001) or authorize electronic delivery of any of the notices described in section 103(b) of that act (15 United States Code section 7003(b)).

§ 36-864 Document of gift; transfer by department of transportation; requirements

Each executed document of gift transferred by the department of transportation to an organ procurement organization is presumed to be a valid document of gift that establishes an anatomical gift for transplantation or therapy if all of the following apply:

1. The organ procurement organization that maintains an anatomical gift registry established pursuant to this article contacted each person who executed the document of gift before that person's death or incapacity.

2. The person had not amended or revoked the anatomical gift before death.

3. The organ procurement organization provided the person with notice of:

(a) The inclusion of the person's name in an anatomical gift registry established pursuant to this article.

(b) The opportunity to amend or revoke the anatomical gift.

(c) Instructions about how to amend or revoke the anatomical gift.

Chapter 7.1 Child Care Programs

Article 1 Day Care Centers

§ 36-881 Definitions

In this article, unless the context otherwise requires:

1. "Child" means any person through the age of fourteen years. Child also means a person who is under eighteen years of age if the child has a developmental disability as defined in section 36-551 or has at least one of the disabilities listed in section 15-761, paragraph 2 and requires special education as defined in section 15-761.

2. "Child care" means the care, supervision and guidance of a child or children, unaccompanied by a parent, guardian or custodian, on a regular basis, for periods of less than twenty-four hours per day, in a place other than the child's or the children's own home or homes.

3. "Child care facility" means any facility in which child care is regularly provided for compensation for five or more children not related to the proprietor.

4. "Controlling person" means a person who:

(a) Through ownership, has the power to vote at least ten per cent of the outstanding voting securities.

(b) If the applicant or licensee is a partnership, is the general partner or a limited partner who holds at least ten per cent of the voting rights of the partnership.

(c) If the applicant or licensee is a corporation, an association or a limited liability company, is the president, the chief executive officer, the incorporator, an agent or any person who owns or controls at least ten per cent of the voting securities.

(d) Holds a beneficial interest in ten per cent or more of the liabilities of the applicant or the licensee.

5. "Department" means the department of health services.

6. "Director" means the director of the department of health services.

7. "Person" means an individual, partnership, corporation, limited liability company, association, day nursery, nursery school, day camp, kindergarten, child care agency, school governing board, charter school or child care center that operates a child care facility.

8. "Substantial compliance" means that the nature or number of violations revealed by any type of inspection or investigation of an applicant for licensure or a licensed child care facility does not pose a direct risk to the life, health or safety of children.

§ 36-882 License; posting; transfer prohibited; fees; provisional license; renewal; exemption from rule making

A. A child care facility shall not receive any child for care, supervision or training unless the facility is licensed by the department of health services.

B. An application for a license shall be made on a written or electronic form prescribed by the department and shall include:

1. Information required by the department for the proper administration of this chapter and rules adopted pursuant to this chapter.

2. The name and business or residential address of each controlling person.

3. An affirmation by the applicant that no controlling person has been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or another state or has had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children.

C. An application for an initial license shall include:

1. The form that is required pursuant to section 36-883.02, subsection C and that is completed by the applicant.

2. A copy of a valid fingerprint clearance card issued to the applicant pursuant to section 41-1758.07.

3. If the applicant's facility is located within one-fourth mile of any agricultural land, the names and addresses of the owners and lessees of the agricultural land and a copy of the agreement required pursuant to subsection D of this section.

D. The department shall deny any license that affects agricultural land regulated pursuant to section 3-365, except that the owner of the agricultural land may agree to comply with the buffer zone requirements of section 3-365. If the owner agrees in writing to comply with the buffer zone requirements and records the agreement in the office of the county recorder as a restrictive covenant running with the title to the land, the department may license the child care facility to be located within the affected buffer zone. The agreement may include any stipulations regarding the child care facility, including conditions for future expansion of the facility and changes in the operational status of the facility that will result in a breach of the agreement. This subsection shall not apply to the issuance or renewal of a license for a child care facility located in the same location for which a child care facility license was previously issued.

E. On receipt of an application for an initial license, the department shall inspect the applicant's physical space, activities and standards of care. If the department determines that the applicant and the applicant's facility are in substantial compliance with this chapter and rules adopted pursuant to this chapter and the applicant agrees to carry out a plan acceptable to the department to eliminate any deficiencies, the department shall issue an initial license to the applicant.

F. Beginning January 1, 2010, subject to the availability of monies, the department may establish a discount program for licensing fees paid by child care facilities, including a public health discount.

G. The director, by rule, may establish and collect fees for child care facilities and a fee for late filing of applications. Beginning January 1, 2010, ninety per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the health services licensing fund established by section 36-414 and ten per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

H. Pursuant to available funding, the department shall collect annual fees.

I. A license is valid from the date of issuance unless it is subsequently revoked or suspended or the licensee does not pay the licensure fee and shall specify the following:

1. The name of the applicant.

2. The exact address where the applicant will locate the facility.

3. The maximum number and age limitations of children that shall be cared for at any one time.

4. The classification of services that the facility is licensed to provide.

J. The department may issue a provisional license, not to exceed six months, to an applicant or a licensed child care facility if:

1. The facility changes director.

2. The department determines that an applicant for an initial license or a licensed child care facility is not in substantial compliance with this chapter and rules adopted pursuant to this chapter and the immediate interests of children, families and the general public are best served if the child care facility or the applicant is given an opportunity to correct deficiencies.

K. A provisional license shall state the reason for the provisional status.

L. On the expiration of a provisional license, the department shall issue a regular license if the department determines that the licensee and the child care facility are in substantial compliance with this chapter and rules adopted pursuant to this chapter and the applicant agrees to carry out a plan acceptable to the department to eliminate any deficiencies.

M. The licensee shall notify the department in writing within ten days of any change in the child care facility's director.

N. The license is not transferable from person to person and is valid only for the quarters occupied at the time of issuance.

O. The license shall be conspicuously posted in the child care facility.

P. The licensee shall conspicuously post a schedule of fees charged for services and the established policy for a refund of fees for services not rendered.

Q. The licensee shall keep current department inspection reports at the child care facility and shall make them available to parents on request. The licensee shall conspicuously post a notice that identifies the location where these inspection reports are available for review.

R. The department of health services shall notify the department of public safety if the department of health services receives credible evidence that a licensee who possesses a valid fingerprint clearance card either:

1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B.

2. Falsified information on any form required by section 36-883.02.

S. Licensees may pay licensure fees by installment payments based on procedures established by the department.

T. The department shall review its actual costs to administer this article at least once every two years. If the department determines that its administrative costs are lower than the fees it has collected pursuant to this section, it shall adjust fees.

U. If the department lowers fees, the department may refund or credit fees to licensees.

V. Fee reductions are exempt from the rule making requirements of title 41, chapter 6.

§ 36-883 Standards of care; rules; classifications

A. The director of the department of health services shall prescribe reasonable rules regarding the health, safety and well-being of the children to be cared for in a child care facility. These rules shall include standards for the following:

1. Adequate physical facilities for the care of children, such as building construction, fire protection, sanitation, sleeping facilities, isolation facilities, toilet facilities, heating, ventilation, indoor and outdoor activity areas and, if provided by the facility, transportation safely to and from the premises.

2. Adequate staffing per number and age groups of children by persons who are qualified by education or experience to meet their respective responsibilities in the care of children.

3. Activities, toys and equipment to enhance the development of each child.

4. Nutritious and well-balanced food.

5. Encouragement of parental participation.

6. Exclusion of any person from the facility whose presence may be detrimental to the welfare of children.

B. The department shall adopt rules pursuant to title 41, chapter 6 and section 36-115.

C. Any rule that relates to educational activities, physical examination, medical treatment or immunization shall include appropriate exemptions for children whose parents object on the ground that it conflicts with the tenets and practices of a recognized church or religious denomination of which the parent or child is an adherent or member.

D. The department of health services shall conduct a comprehensive review of its rules at least once every two years. Before conducting this review, the department shall consult with agencies and organizations that are knowledgeable about the provision of child care facilities to children, including:

1. The department of economic security.

2. The department of education.

3. The office of the state fire marshal.

4. The league of Arizona cities and towns.

5. Citizen groups.

6. Licensed child care facility representatives.

7. The department of child safety.

E. The department shall designate appropriate classifications and establish corresponding standards pertaining to the type of care offered. These classifications shall include:

1. Facilities offering infant care.

2. Facilities offering specific educational programs.

3. Facilities offering evening and nighttime care.

F. Rules for the operation of child care facilities shall be stated in a way that clearly states the purpose of each rule.

§ 36-883.01 Statement of services

Each child care facility shall annually furnish to the department, and make available to parents on request, an explicit and up-to-date written statement of the services it offers.

§ 36-883.02 Child care personnel; fingerprints; exemptions; definition

A. Except as provided in subsection B of this section, child care personnel, including volunteers, shall submit the form prescribed in subsection C of this section to the employer and shall have valid fingerprint clearance cards issued pursuant to section 41-1758.07 before starting employment or volunteer work.

B. Exempt from the fingerprinting requirements of subsection A of this section are parents, including foster parents and guardians, who are not employees of the child care facility and who participate in activities with their children under the supervision of and in the presence of child care personnel.

C. Applicants, licensees and child care personnel shall attest on forms that are provided by the department that:

1. They are not awaiting trial on or have never been convicted of or admitted in open court or pursuant to a plea agreement committing any of the offenses listed in section 41-1758.07, subsection B in this state or similar offenses in another state or jurisdiction.

2. They are not parents or guardians of a child adjudicated to be a dependent child as defined in section 8-201.

3. They have not been denied or had revoked a certificate to operate a child care group home or a license to operate a child care facility in this or any other state or that they have not been denied or had revoked a certification to work in a child care facility or child care group home.

D. Employers of child care personnel shall make documented, good faith efforts to contact previous employers of child care personnel to obtain information or recommendations that may be relevant to an individual's fitness for employment in a child care facility.

E. The forms required by subsection C of this section are confidential.

F. A child care facility shall not allow a person to be employed or volunteer in the facility in any capacity if the person has been denied a fingerprint clearance card pursuant to section 41-1758.07 or has not received an interim approval from the board of fingerprinting pursuant to section 41-619.55, subsection I.

G. The employer shall notify the department of public safety if the employer receives credible evidence that any child care personnel either:

1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B.

2. Falsified information on the form required by subsection C of this section.

H. For the purposes of this section, "child care personnel" means any employee or volunteer working at a child care facility.

§ 36-883.03 Employer-subsidized child care; immunity from liability

A. An employer that subsidizes child care on a nondiscriminatory basis to its employees through a child care facility licensed pursuant to this article or through a person or facility exempt from licensure pursuant to this article but screened pursuant to section 41-1964 or 46-321 is not liable for damages as a result of an act or omission by the child care facility, person or exempt facility unless the employer is guilty of gross negligence in recommending the child care facility, person or facility or unless the employer is acting as the owner or has an ownership interest in or is an operator of the child care facility or exempt facility.

B. For purposes of this section, an employer is deemed to be subsidizing an employee's child care costs if the employer pays, either directly or indirectly, at least twenty-five per cent of the cost of the child care service rendered to the employee by the child care facility, person or exempt facility described in subsection A of this section.

§ 36-883.04 Standards of care; rules; enforcement

The director shall prescribe reasonable rules and standards regarding the health, safety and well-being of children cared for in any public school child care program. These rules shall be comparable to the rules and standards prescribed pursuant to section 36-883. The director shall also prescribe rules regarding the enforcement of the standards of care including penalties for noncompliance with these standards. These enforcement and penalty provisions shall be comparable to those existing for private child care facilities.

§ 36-883.05 Child care facilities; infants; floor bedding; requirements; emergency evacuation; notice; definitions

A. A child care facility that provides child care services utilizing the practice of a documented educational philosophy including least restrictive environment for infants and meets the requirements of this section may use floor bedding in the facility instead of cribs.

B. Floor bedding pursuant to subsection A of this section must meet all of the following requirements:

1. Be a mat that meets the following dimensions:

(a) Is not less than two inches and not more than three inches thick.

(b) Is not less than three feet and not more than four feet long.

(c) Is not less than two feet and not more than three feet wide.

2. Not be elevated or raised in any way.

3. Be covered with a waterproof and washable mattress pad, a washable zip cover and an individually assigned sheet.

4. Be assigned to an individual infant and not shared with another infant.

5. Be turned over at least once a week.

6. Be placed at least eighteen inches apart, eighteen inches from any wall and two feet from any other object.

7. Be placed on a floor that is vacuumed and sanitized every day and, if the floor is carpeted, is shampooed at least twice a month.

C. The ratio of staff members to resting infants in the resting area must be at least one staff member to every four infants. A staff member in the resting area must be supervised for the first ninety days of employment to ensure the staff member's proper use of the floor bedding pursuant to this section. Any staff member in the resting area shall have current certification in cardiopulmonary resuscitation and first aid.

D. If an emergency requiring evacuation occurs, the infant nursery staff shall place the infants in an evacuation crib and move the infants in the crib to a designated evacuation assembly area. Evacuation cribs must be stored not more than ten feet from the exterior exit. If stored on the outside of the building, an evacuation crib must be protected from weather. On arrival at the designated evacuation assembly area, all infants must be physically accounted for against the sign-in log and the results reported to the director of the child care facility immediately. The infant nursery supervisor is responsible for bringing all attendance sheets, child rosters and information sheets to the evacuation assembly area. The child care facility staff shall take appropriate supplies during the evacuation to protect the children, if possible, during inclement weather.

E. A facility shall provide the department written notice thirty days before implementing the use of floor bedding pursuant to this section.

F. If a licensed facility does not comply with the requirements of this section, the department may require the installation of cribs.

G. For the purposes of this section:

1. "Infant" means either:

(a) A child who is twelve months or younger.

(b) A child who is eighteen months or younger if not walking.

2. "Resting area" means a space within the classroom that is separate from the activity area and that contains only the floor bedding, infants and staff members.

§ 36-884 Exemptions

This article does not apply to the care given to children by or in:

1. The homes of parents or blood relatives.

2. A religious institution conducting a nursery in conjunction with its religious services or conducting parent-supervised occasional drop-in care.

3. A unit of the public school system, including specialized professional services provided by school districts for the sole purpose of meeting mandated requirements to address the physical and mental impairments prescribed in section 15-771. If a public school provides child care other than during the school's regular hours or for children who are not regularly enrolled in kindergarten programs or grades one through twelve, that portion of the school that provides child care is subject to standards of care prescribed pursuant to section 36-883.04.

4. A regularly organized private school engaged in an educational program that may be attended in substitution for public school pursuant to section 15-802. If the school provides child care beyond regular public school hours or for children who are not regularly enrolled in kindergarten programs or grades one through twelve, that portion of the school providing such care shall be considered a child care facility and is subject to this article.

5. Any facility that provides training only in specific subjects, including dancing, drama, music, self-defense or religion and tutoring provided by public schools solely to improve school performance.

6. Any facility that provides only recreational or instructional activities to school age children who may enter into and depart from the facility at their own volition. The facility may require the children to document their entrance into and departure from the facility. This documentation does not affect the exemption under this paragraph. The facility shall post a notice stating it is not a licensed child care facility under section 36-882.

7. Any of the Arizona state schools for the deaf and the blind.

8. A facility that provides only educational instruction for children who are at least three and not older than six years of age if all the following are true:

(a) The facility instructs only in the core subjects of math, reading and science.

(b) The facility does not accept state-subsidized tuition for the children.

(c) A child is present at the facility for not more than two and one-quarter hours a day and not more than three days a week.

(d) The instruction is not provided in place of care ordinarily provided by a parent or guardian.

(e) The facility posts a notice that the facility is not licensed under this article.

(f) The facility requires fingerprint cards of all personnel pursuant to section 36-883.02.

9. A facility that operates a day camp that provides recreational programs to children if all of the following are true:

(a) The day camp is accredited by a nationally recognized accrediting organization for day camps as approved by the department.

(b) The day camp operates for less than twenty-four hours a day and less than ten weeks each calendar year.

(c) The day camp posts a notice at the facility and on its website that it is not licensed under the laws of this state as a child care facility.

(d) The day camp provides programs only to children who are at least five years of age.

(e) The day camp requires fingerprint cards of all personnel pursuant to section 36-883.02.

§ 36-885 Inspection of child care facilities

A. The department or designated local health departments or its agents may at any time visit during hours of operation and inspect a child care facility to determine if it complies with this article and rules adopted under this article.

B. The department shall visit each child care facility as often as necessary to assure continued compliance with this article and department rules. The department shall make at least one unannounced visit annually.

§ 36-886 Operation without a license; classification

A. If it appears that any person is maintaining or operating a child care facility without a license, the department shall notify the facility's operator either by mail, by certified mail with return receipt requested or by delivery in person. The person affected by the notice shall, within ten days from its receipt, cease and desist operation or show proof of having a valid license. The person may, within ten days, request in writing a hearing before the director.

B. On application of the department, a magistrate shall issue a warrant to the department authorizing inspection of a child care facility if there is probable cause to believe that a person is operating the facility without a license.

C. If a person does not comply with this section the department shall notify the county attorney of the county in which the child care facility is being operated of the violation and request that criminal prosecution be commenced against the violator. The department may request the attorney general to apply for injunctive relief.

D. Any person who continues to maintain or operate a child care facility without a license ten days after receipt of notice from the department is guilty of a class 1 misdemeanor.

§ 36-886.01 Injunctions

If the department believes that a child care facility is operating under conditions that present possibilities of serious harm to children, the department shall notify the county attorney or the attorney general who shall immediately seek a restraining order and injunction against the facility.

§ 36-887 Procedure for inspection of records

A. Records maintained by the department for child care facilities are available to the public for review and copying.

B. Personally identifiable information that relates to a child, parent or guardian is confidential. The department shall disclose this information only as follows:

1. Pursuant to a court order.

2. Pursuant to a written consent signed by the parent or guardian.

3. To a law enforcement officer who requires it for official purposes.

4. To an official of a governmental agency who requires it for official purposes.

C. The department shall enter into the child care facility's case file, contiguous to the form containing the reported violation, those documents that verify correction of reported violations.

§ 36-888 Denial, revocation or suspension of license

A. The department may deny, suspend or revoke a license for a violation of this article or department rules. At least thirty days before the department denies, revokes or suspends a license it shall mail the applicant or licensee a notice of that person's right to a hearing. The department shall issue this notice by registered mail with return receipt requested. The notice shall state the hearing date and the facts constituting the reasons for the department's action and shall cite the specific statute or rule that the person is not conforming to.

B. If the person does not respond to the written notice the department, at the expiration of the time fixed in the notice, shall take the action prescribed in the notice. If the person, within the period fixed in the notice, conforms the application or the operation of the child care facility to the applicable statute or rule, the department may grant the license or withdraw the notice of suspension or revocation.

§ 36-889 Licensees; applicants; residency; controlling persons; requirements

A. Each licensee, other than a corporation, a limited liability company, an association or a partnership, shall be a citizen of the United States who is a resident of this state, or a legal resident alien who is a resident of this state. A corporation, association or limited liability company shall be a domestic entity or a foreign entity that is qualified to do business in this state. A partnership shall have at least one partner who is a citizen of the United States and who is a resident of this state, or who is a legal resident alien and who is a resident of this state.

B. The department shall not issue or renew a license unless a list of each of the applicant's or licensee's controlling persons is on file with the department and no controlling person has been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or other state or has had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children.

C. The applicant or licensee shall notify the department within thirty days after the election of any new officer or director or of any change in the controlling persons and shall provide the department the name and business or residential address of each controlling person and an affirmation by the applicant that no controlling person has been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or another state or has had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children.

D. Each applicant or licensee shall designate an agent who is authorized to receive communications from the department, including legal service of process, and to file and sign documents for the applicant or licensee. The designated agent shall be all of the following:

1. A controlling person.

2. A citizen of the United States or a legal resident alien.

3. A resident of this state.

§ 36-890 Decisions

All decisions rendered by the director, pursuant to the applicable law and regulations, shall be in writing and filed of record in the office of the department. Notice of such decisions shall be given to the affected person or licensee. If no appeal is taken by any such person or licensee within the time provided by law, the decision of the director shall be final and conclusive.

§ 36-891 Civil penalty; inspection of centers; training program

A. The director may impose a civil penalty on a person who violates this article or rules adopted pursuant to this article in an amount of not more than one hundred dollars for each violation. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days on which the violation has been documented by the department.

B. In determining the civil penalty pursuant to subsection A, the department shall consider the following:

1. Repeated violations of statutes or rules.

2. Patterns of noncompliance.

3. Types of violations.

4. Severity of violations.

5. Potential for and occurrences of actual harm.

6. Threats to health and safety.

7. Number of children affected by the violations.

8. Number of violations.

9. Size of the facility.

10. Length of time during which violations have been occurring.

C. If a civil penalty imposed pursuant to subsection A is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred.

D. Unless a license is revoked or suspended, the director shall place the license of a child care facility subject to a civil penalty pursuant to subsection A on provisional license status for a period of time not to exceed six months in addition to other penalties imposed pursuant to this article.

E. Civil penalties collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

F. The department shall develop an instrument that documents compliance and noncompliance of child care facilities according to the criteria prescribed in its rules governing child care facility licensure. Blank copies of the instrument, which shall be in standardized form, shall be made available to the public.

G. The director shall establish a child care facility training program to provide training for child care facilities and users of child care services, technical assistance materials for child care facilities and information to enhance consumer awareness.

§ 36-891.01 Intermediate sanctions; notification of compliance; hearing

A. If the director has reasonable cause to believe that a licensee is violating this article or rules adopted pursuant to this article and that the health or safety of the children is endangered, the director may impose, on written notice to the licensee, one or more of the following intermediate sanctions until the licensee is in substantial compliance with this article:

1. Immediate restrictions on new admissions to the child care facility.

2. Termination of specific services that the facility may offer.

3. Reduction of the facility's capacity.

B. A child care facility sanctioned pursuant to this section shall notify the department in writing when it is in substantial compliance. On receipt of notification the department shall conduct an inspection. If the department determines that the facility is in substantial compliance the director shall immediately rescind the sanctions. If the department determines that the facility is not in substantial compliance the sanctions remain in effect. The facility may then notify the department of substantial compliance not sooner than fourteen days after the date of that inspection. If the department determines on the return inspection that the facility is still not in substantial compliance the sanctions remain in effect. Thereafter, a facility may notify the department of substantial compliance not sooner than thirty days after the date of the last inspection. A facility shall make all notifications of substantial compliance by certified mail. The department shall conduct all inspections required pursuant to this subsection within fourteen days after receipt of notification of substantial compliance. If the department does not conduct an inspection within this time period, the sanctions have no further effect.

C. A person who has been ordered by the director to restrict admission, reduce capacity or terminate specific services may request a hearing to review the director's action. The person shall make this request in writing within ten days after the person receives notice of the director's action. The office of administrative hearings shall conduct an administrative hearing within seven business days after the notice of appeal has been filed with the office of administrative hearings.

D. A hearing conducted pursuant to this section shall comply with the requirements of title 41, chapter 6, article 10.

§ 36-892 Violation; classification

Any person violating the provisions of the applicable law, or regulations, is guilty of a class 2 misdemeanor unless another classification is specifically prescribed in this article.

§ 36-893 Legal action or sale; effect on licensure

A. The department shall not act on an application for licensure of a currently licensed child care facility while any enforcement or court action related to child care facility licensure is pending against that facility's current licensee.

B. The director may continue to pursue any court, administrative or enforcement action against the licensee even though the facility is in the process of being sold or transferred to a new owner.

C. The department shall not approve a change in facility ownership unless it determines that there has been a transfer of all legal and equitable interests, control and authority in the facility so that persons other than the transferring licensee, that licensee's agent or other parties exercising authority or supervision over the facility's daily operations or staff are responsible for and have control over the facility.

§ 36-894 Medical marijuana; child care facilities; prohibition

(Added with a 1998 Prop. 105 clause pursuant to L12, Ch. 159)

A person, including a cardholder as defined in section 36-2801, may not lawfully possess or use marijuana in any child care facility in this state.

§ 36-894.01 Use of sunscreen in child care facilities

A school-age child who attends a child care facility in this state may possess and use a topical sunscreen product without a note or prescription from a licensed health care professional.

§ 36-894.02 Out-of-school time program providers; roster requirements; school-age children

An out-of-school time program provider that opts to be licensed as a child care facility pursuant to this article is not required to keep a roster of school-age children for each room or activity area within the child care facility if both of the following apply:

1. The program provider keeps a roster of school-age children who are present at the child care facility on entry to and exit from the child care facility.

2. The school-age children are supervised by designated staff as required by department rule when moving from one activity area to another activity area with their respective cohort.

Article 3 Placement of Children by Department of Economic Security

§ 36-895 Licensing and monitoring of child care facilities; financial agreements

A. The department of health services shall license child care facilities and monitor their operation to ensure that the level of care being provided is adequate. The department of economic security shall not duplicate the monitoring functions of the department of health services and shall accept the decisions of the department of health services concerning compliance with licensing standards.

B. The department of economic security may prepare and enter into financial agreements with child care providers as defined in section 46-801.

Article 4 Child Care Group Homes

§ 36-897 Definitions

In this article, unless the context otherwise requires:

1. "Child care group home" means a residential facility in which child care is regularly provided for compensation for periods of less than twenty-four hours per day for not less than five children but no more than ten children through the age of twelve years.

2. "Department" means the department of health services.

3. "Provider" means the certificate holder or a person the certificate holder designates in writing who, pursuant to applicable statutes and rules, is to be responsible for direct daily supervision, operation and maintenance of the child care group home.

4. "Substantial compliance" means that the nature or number of violations revealed by any type of inspection or investigation of an applicant for certification as a child care group home or a certified child care group home does not pose a direct risk to the life, health or safety of children.

§ 36-897.01 Certification; application; fees; rules; fingerprinting; renewal; exemption from rule making

A. A child care group home shall be certified by the department. An application for a certificate shall be made on a written or electronic form prescribed by the department and shall contain all information required by the department.

B. If a child care group home is within one-fourth mile of agriculture land, the application shall include the names and addresses of the owners and lessees of any agricultural land within one-fourth mile of the facility. Within ten days after receipt of an application for a certificate, the department shall notify the owners and lessees of agricultural land as listed on the application. The department shall deny a certificate that affects agricultural land regulated pursuant to section 3-365, except that the owner of the agricultural land may agree to comply with the buffer zone requirements of section 3-365. If the owner agrees in writing to comply with the buffer zone requirements and records the agreement in the office of the county recorder as a restrictive covenant running with the title to the land, the department may issue a certificate to the child care group home to be located within the affected buffer zone. The agreement may include any stipulations regarding the child care group home, including conditions for future expansion of the facility and changes in the operational status of the facility that will result in a breach of the agreement. This subsection applies to the renewal of a certificate for a child care group home located in the same location if the child care group home certificate was not previously issued under this subsection.

C. The director, by rule, may establish and collect fees for child care group homes and a late filing fee. Beginning January 1, 2010, ninety per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the health services licensing fund established by section 36-414 and ten per cent of the fees collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

D. Pursuant to available funding the department shall collect annual fees.

E. Beginning January 1, 2010, subject to the availability of monies, the department may establish a discount program for certification fees paid by child care group homes, including a public health discount program.

F. The department shall issue an initial certificate if the department determines that the applicant and the applicant's child care group home are in substantial compliance with the requirements of this article and department rules and the facility agrees to carry out a plan acceptable to the director to eliminate any deficiencies.

G. A certificate is valid unless it is revoked or suspended or the licensee does not pay the licensure fee and may be renewed by submitting the certification fee as prescribed by the department pursuant to subsection C of this section.

H. In order to ensure that the equipment and services of a child care group home and the good character of an applicant are conducive to the welfare of children, the department by rule shall establish the criteria for granting, denying, suspending and revoking a certificate.

I. The director shall adopt rules and prescribe forms as may be necessary for the proper administration and enforcement of this article.

J. The certificate shall be conspicuously posted in the child care group home for viewing by parents and the public.

K. Current department inspection reports shall be kept at the child care group home and shall be made available to parents on request.

L. A certificate is not transferable and is valid only for the location occupied at the time it is issued.

M. An application for an initial certificate shall include:

1. The form that is required pursuant to section 36-897.03, subsection B and that is completed by the applicant.

2. A copy of a valid fingerprint clearance card issued to the applicant pursuant to section 41-1758.07.

N. The department of health services shall notify the department of public safety if the department of health services receives credible evidence that a person who possesses a valid fingerprint clearance card either:

1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B.

2. Falsified information on any form required by section 36-897.03.

O. Certificate holders may pay fees by installment payments based on procedures established by the department.

P. The department shall review its actual costs to administer this article at least once every two years. If the department determines that its administrative costs are lower than the fees it has collected pursuant to this section, it shall adjust fees.

Q. If the department lowers fees, the department may refund or credit fees to licensees.

R. Fee reductions are exempt from the rule making requirements of title 41, chapter 6.

§ 36-897.02 Standards of care; monitoring

A. The department by rule shall establish standards of care for child care group homes. These rules shall include minimum programmatic, personnel, supervision of children, training, physical environment and financial stability standards.

B. At least two adults shall be present in the child care group home when six to ten children are cared for in the home.

C. For purposes of certification of the child care group home, the provider's own children shall not be counted.

D. The total number of children present in a child care group home at any given time for whom compensation is received shall not exceed ten.

E. The total number of children present in a child care group home at any given time, including children related to the provider, shall not exceed fifteen.

F. The department shall monitor the operation of a child care group home at least two times each year to ensure that the child care group home is meeting department standards of care.

§ 36-897.03 Child care group homes; child care personnel; fingerprints; definition

A. Child care personnel, including volunteers, shall submit the form prescribed in subsection B of this section to the employer and shall have valid fingerprint clearance cards issued pursuant to section 41-1758.07 before starting employment or volunteer work.

B. Applicants, certificate holders and child care personnel shall attest on forms that are provided by the department that:

1. They are not awaiting trial on or have never been convicted of or admitted in open court or pursuant to a plea agreement committing any of the offenses listed in section 41-1758.07, subsection B or C in this state or similar offenses in another state or jurisdiction.

2. They are not parents or guardians of a child adjudicated to be a dependent child as defined in section 8-201.

3. They have not been denied a certificate to operate a child care group home or a license to operate a child care facility for the care of children in this state or another state or had a license to operate a child care facility or a certificate to operate a child care group home revoked for reasons that relate to the endangerment of the health and safety of children.

C. The provider shall make documented, good faith efforts to contact previous employers of child care personnel to obtain information or recommendations that may be relevant to an individual's fitness to work in a certified child care group home.

D. The director may adopt rules prescribing the exclusion from child care group homes of individuals whose presence may be detrimental to the welfare of children.

E. The forms required by subsection B of this section are confidential.

F. A person who is awaiting trial on or who has been convicted of or who has admitted in open court or pursuant to a plea agreement to committing a criminal offense listed in section 41-1758.07, subsection B or subsection B, paragraph 2 or 3 of this section is prohibited from being employed in any capacity in a child care group home.

G. A person who is awaiting trial on or who has been convicted of or who has admitted in open court or pursuant to a plea agreement to committing a criminal offense listed in section 41-1758.07, subsection C shall not work in a child care group home without direct visual supervision unless the person has applied for and received the required fingerprint clearance card pursuant to section 41-1758 and is registered as child care personnel. A person who is subject to this subsection shall not be employed in any capacity in a child care group home if that person is denied the required fingerprint clearance card.

H. The employer shall notify the department of public safety if the employer receives credible evidence that any child care personnel either:

1. Is arrested for or charged with an offense listed in section 41-1758.07, subsection B.

2. Falsified information on the form required by subsection B of this section.

I. For the purposes of this section, "child care personnel" means all employees of and persons who are eighteen years of age or older and who reside in a child care group home that is certified by the department.

§ 36-897.04 Exemptions

A. This article does not apply to the care given to children by or in:

1. The homes of their own parents.

2. A religious institution conducting a nursery in conjunction with its religious services.

3. A unit of the public school system.

4. A regularly organized private school engaged in an educational program which may be attended in substitution for public school pursuant to section 15-802.

5. Any facility that provides training only in specific subjects, including dancing, drama, music, self-defense or religion.

6. Any facility that provides only recreational or instructional activity to school age children who may come to and go from that facility at their own volition.

B. If regularly organized private schools exempt under subsection A, paragraph 4 of this section provide child care beyond public school hours or for children who are not regularly enrolled in kindergarten programs or grades one through twelve, that portion of the school providing this care shall be considered a child care group home and is subject to this article.

§ 36-897.05 Inspection of child care group homes

A. The department or designated local health departments or its agents may at any time visit, during hours of operation, and inspect a child care group home in order to determine whether it is certified and is being conducted in compliance with applicable law, this article and rules adopted pursuant to this article.

B. The department shall visit each child care group home as often as necessary to assure continued compliance with this article and the rules adopted pursuant to this article. At least one unannounced visit shall be made annually.

§ 36-897.06 Civil penalty; collection

A. The director may impose a civil penalty on a person who violates this article or rules adopted pursuant to this article in an amount of not more than one hundred dollars for each violation. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. A person may appeal the assessment by requesting an administrative hearing. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days on which the violation has been documented by the department.

B. In determining the civil penalty pursuant to subsection A, the department shall consider the following:

1. Repeated violations of statutes or rules.

2. Patterns of noncompliance.

3. Types of violations.

4. Severity of violations.

5. Potential for and occurrences of actual harm.

6. Threats to health and safety.

7. Number of children affected by the violations.

8. Number of violations.

9. Size of the facility.

10. Length of time during which violations have been occurring.

C. If a civil penalty imposed pursuant to subsection A of this section is not paid, the attorney general or a county attorney shall file an action to collect the civil penalty in a justice court or the superior court in the county in which the violation occurred.

D. Civil penalties collected pursuant to subsection A of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

E. The department shall develop an instrument that documents compliance and noncompliance of child care group homes according to the criteria prescribed in its rules governing child care group home certification. Blank copies of the instrument, which shall be in standardized form, shall be made available to the public.

§ 36-897.07 Training program

The director shall establish a training program to provide training for child care group homes and users of child care group home services, technical assistance materials for child care group homes and information to enhance consumer awareness.

§ 36-897.08 Intermediate sanctions; notification of compliance; hearing

A. If the director has reasonable cause to believe that a child care group home is in violation of this article or a rule adopted pursuant to this article and that the health or safety of the children is endangered, on written notice to the child care group home the director may impose one or more of the following intermediate sanctions until the child care group home is in substantial compliance:

1. Immediately restrict admissions to the child care group home.

2. Terminate specific services that the child care group home may offer.

3. Reduce the child care group home's capacity.

B. A child care group home sanctioned pursuant to this section shall notify the department in writing when it is in substantial compliance. On receipt of notification the department shall conduct an inspection. If the department determines that the child care group home is in substantial compliance the director shall immediately rescind the sanctions. If the department determines that the child care group home is not in substantial compliance the sanctions remain in effect. The child care group home may then notify the department of substantial compliance not sooner than fourteen days after the date of that inspection. If the department determines on the return inspection that the child care group home is still not in substantial compliance the sanctions remain in effect. Thereafter, a child care group home may notify the department of substantial compliance not sooner than thirty days after the date of the last inspection. A child care group home shall make all notifications of substantial compliance by certified mail. The department shall conduct all inspections required pursuant to this subsection within fourteen days after receipt of notification of substantial compliance. If the department does not conduct an inspection within this time period, the sanctions have no further effect.

C. On written request by a person who has been sanctioned pursuant to this section the director or the director's designee shall conduct a hearing to review the sanctions. A request for a hearing shall be made by certified mail within ten days after receipt of notice of the sanctions. The office of administrative hearings shall conduct an administrative hearing within seven business days after the notice of appeal has been filed with the office of administrative hearings.

D. A hearing conducted pursuant to this section shall comply with the requirements of title 41, chapter 6, article 10.

§ 36-897.09 Operating without a certificate; notice; hearing; violation; classification

A. If the department has reasonable cause to believe that a person is operating a child care group home without a certificate, it shall notify that person to cease operation within ten days of receiving the notice. The department shall give notice either by certified mail or by personal service. The notice shall state that the person may make a written request for a hearing before the director or the director's designee pursuant to title 41, chapter 6, article 10.

B. If a person fails to cease operation, the department may request that the county attorney of the county in which the home is located enforce this article. The department may also notify the attorney general who shall immediately seek a restraining order and an injunction against the home.

C. A person who continues to operate a child care group home without certification ten days after receiving notice pursuant to this section is guilty of a class 1 misdemeanor.

§ 36-897.10 Pending action or sale; effect on licensure

A. The department shall not act on an application for certification of a currently certified child care group home while any enforcement or court action related to child care group home certification is pending against that group home's current certificate holder.

B. The director may continue to pursue any court, administrative or enforcement action against the certificate holder even if the group home is in the process of being sold or transferred to a new owner.

C. The department shall not approve a change in group home ownership unless it determines that there has been a transfer of legal and equitable interests, control and authority in the group home so that persons other than the transferring certificate holder, that certificate holder's agent or other parties exercising authority or supervision over the group home's daily operations or staff are responsible for and have control over the group home.

§ 36-897.11 Injunctions; definition

A. If the department believes that a child care group home is operating under conditions that may cause serious harm to children, the department shall notify the attorney general or the county attorney of the county in which the child care group home is located who shall immediately seek a restraining order and injunction against the home.

B. For the purposes of this section, "serious harm" means a substantial physical injury.

§ 36-897.12 Inspection of records

A. Records maintained by the department for child care group homes are available to the public for review and copying.

B. Personally identifiable information that relates to a child, parent or guardian is confidential. The department shall disclose this information only as follows:

1. Pursuant to a court order.

2. Pursuant to a written consent signed by the parent or guardian.

3. To a law enforcement officer who requires it for official purposes.

4. To an official of a governmental agency who requires it for official purposes.

C. The department shall enter into the child care group home's case file, contiguous to the form containing the reported violations, those documents that verify correction of reported violations.

§ 36-897.13 Use of sunscreen in child care group homes

A school-age child who attends a child care group home in this state may possess and use a topical sunscreen product without a note or prescription from a licensed health care professional.

Article 5 Notification of Pesticide Application

§ 36-898 Licensees; pesticide application; notice; definitions

A. The director, in consultation with licensees, personnel of licensees, parents, guardians, administrators, members of the public, a qualifying party and at least one health professional, shall develop and adopt a policy to provide parents, guardians, children and personnel with at least forty-eight hours' notice before pesticides are applied on licensee property.

B. The policy shall include at least the following:

1. Procedures for providing the notification, including:

(a) Procedures for written notification to parents, guardians or an individual authorized by a parent or guardian during a regular child care session.

(b) Procedures for requiring the licensee to post signs to identify pesticide application areas.

2. Procedures for requiring any contracted pest control applicator to provide detailed and sufficient information to licensees for the purpose of completing the posting materials.

C. The policy shall include exemptions for the following pesticide applications:

1. Nonresidual pesticide applications performed or contracted by public health agencies for adult vector control.

2. Emergency pesticide applications of a pesticide that has a toxicity category of III or IV pursuant to 40 Code of Federal Regulations section 156.62 to control harmful pests that pose an immediate threat to the public health.

3. Disinfectants or swimming pool chemicals.

4. Block, gel or paste-type bait that is a toxicity category III or IV formulation of insecticide pursuant to 40 Code of Federal Regulations section 156.62 and that is either of the following:

(a) Secured in an enclosed, tamper-resistant bait station and placed in an area that is inaccessible to children.

(b) Applied to a crack or crevice inaccessible to children.

5. Block-type bait that is a toxicity level III or IV formulation of rodenticide pursuant to 40 Code of Federal Regulations section 156.62 and that is secured in an enclosed, tamper-resistant bait station placed in an area inaccessible to children.

6. Personal repellants.

7. Any pesticide exempt from regulation by the United States environmental protection agency pursuant to the federal insecticide, fungicide and rodenticide act (7 United States Code section 136w).

D. Each licensee shall maintain written records of pesticide application notifications for a period of at least three years after the application. The licensee may delegate to the pest control applicator the duty to fill out and post notices required by department policy. A licensee is not required to maintain records of pesticides that are exempt pursuant to subsection C of this section.

E. For the purposes of this section:

1. "Child care" has the same meaning prescribed in section 36-881.

2. "Department" means the department of health services.

3. "Licensee" means a person who is regulated pursuant to this chapter.

4. "Pesticides" includes pesticides regulated under the federal insecticide, fungicide and rodenticide act (P.L. 100-532; 102 Stat. 2654; 7 United States Code section 136) except for nonrestricted use disinfectants, sanitizers or deodorizers regulated by the federal insecticide, fungicide and rodenticide act.

5. "Qualifying party" has the same meaning prescribed in section 3-3601.

Chapter 7.2 Child Hearing Evaluation and Vision Screening Programs

Article 1 Program of Hearing Evaluation Services

§ 36-899 Definitions

In this chapter, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

3. "Hearing evaluation services" means services which include the identification, testing, evaluation and initiation of follow-up services as defined in the rules and regulations of the department, as provided by section 36-899.03.

4. "Hearing screening evaluation" means the evaluation of the ability to hear certain frequencies at a consistent loudness.

5. "Private education program" means all programs of private education offering courses of study for grades, kindergarten through the twelfth grade of high school.

6. "Public education program" means all kindergarten, primary and secondary programs of education within the public school system, including but not beyond the twelfth grade of common or high school.

§ 36-899.01 Program for all school children; administration

A. A program of hearing evaluation services is established by the department. Such services shall be administered to all children as early as possible, but in no event later than the first year of attendance in any public or private education program, or residential facility for children with disabilities, and thereafter as circumstances permit until the child has attained the age of sixteen years or is no longer enrolled in a public or private education program.

B. The program of hearing evaluation services for children in a public education program shall be administered by the department with the aid of the department of education.

§ 36-899.02 Powers of the department; limitations

A. The department may, in administering the program of hearing evaluation services:

1. Provide consulting services, establish or supplement hearing evaluation services in local health departments, public or private education programs or other community agencies.

2. Provide for the training of personnel to administer hearing screening evaluations.

3. Delegate powers and duties to other state agencies, county and local health departments, county and local boards of education or boards of trustees of private education programs or other community agencies to develop and maintain periodic hearing evaluation services.

4. Provide services by contractual arrangement for the development and maintenance of periodic hearing evaluation services.

5. Accept reports of hearing evaluation from qualified medical or other professional specialists employed by parents or guardians for hearing evaluation when such reports are submitted to the department.

B. The department shall not replace any qualified existing service.

§ 36-899.03 Rules and regulations

The director shall develop rules and regulations governing standards, procedures, techniques and criteria for conducting and administering hearing evaluation services.

§ 36-899.04 Parent, guardian may refuse test

No child shall be required to submit to any test required by this chapter if a parent or guardian of the child objects and submits a statement of such objection to the agency administering such hearing evaluation services.

Article 2 Vision Screening for Children

§ 36-899.10 Vision screening; administration; rules; notification; definitions

A. Each school shall provide vision screening services to the following:

1. Students upon initial entry to school and for not more than two additional grade levels as prescribed by the department by rule. A school, at the school's discretion, may provide vision screening services to students who are in grade levels that are not prescribed by rule.

2. Students who receive or are being considered for special education services and who have not been screened in the last year pursuant to this section.

3. Students for whom a teacher has requested a screening and who have not been screened in the last year pursuant to this section.

4. Students who are not reading at grade level by the third grade pursuant to the state assessment required in section 15-741, if the rules adopted by the department do not require screening in the third grade.

B. A school nurse, a volunteer or other school personnel who have undergone training developed or approved by the department shall administer the vision screenings except that those individuals who are trained to administer vision screenings before August 27, 2019 are not required to retrain pursuant to this subsection.

C. A vision screening conducted pursuant to this section does not satisfy a requirement for a medical professional to complete a vision screening of a child according to established guidelines for pediatric care.

D. The school district governing board or charter school governing body shall provide the vision screening results to the parent or guardian of each student who did not pass the vision screening within forty-five days after the vision screening and shall comply with all applicable privacy laws. The results shall identify that the student did not pass the vision screening and the need for a comprehensive eye and vision examination. The results shall state that a vision screening is not equivalent to a comprehensive eye and vision examination.

E. A school district governing board or charter school governing body providing vision screening services shall provide to the department annual data submissions in a department-approved format that complies with student privacy laws.

F. A student is not required to submit to any vision screening required by this section if a parent or guardian of the student objects and submits a statement of the objection to the school for any reason including that the student received a comprehensive eye and vision examination in the last year or if the student has a current diagnosis of permanent vision loss.

G. For the purposes of assisting and implementing the vision screening requirements established by this section, the department or its delegate, subject to available monies, may:

1. Develop and provide vision screening training to screeners designated in subsection B of this section.

2. Provide schools with materials the department determines by rule to be necessary for conducting vision screenings.

3. Compile any school vision screening data, with all individual identifying information removed, for review and analysis by researchers, public agencies or any foundation, nonprofit organization or other organization that provides free approved vision screening services or training, grants for vision screening services, eyeglasses or examinations.

H. The department of health services shall adopt rules pursuant to title 41, chapter 6 to carry out this section. The rules may not require materials and equipment specific to any one provider and shall include, where consistent with the requirements of this section, feedback from the public education programs required to implement the vision screenings. Rules adopted to carry out subsection A of this section shall be done in consultation with the department of education, recognized nonprofit organizations that provide free vision screening services, training, grants for vision screening services, eyeglasses or examinations and ophthalmologists, optometrists, school nurses, pediatricians and school administrators.

I. The department may accept gifts, grants, donations, bequests and other forms of voluntary contributions for the purposes of this section.

J. For the purposes of this section:

1. "Comprehensive eye and vision examination" means a vision examination performed by an optometrist or ophthalmologist.

2. "Department" means the department of health services.

3. "School" means a school district or charter school that provides instruction in preschool or kindergarten programs and grades one through twelve, or any combination of those programs or grades.

4. "Vision screening" means using a vision screening methodology approved or prescribed by rules adopted by the department pursuant to this section that, as age appropriate, include the evaluation of visual acuity, depth perception and color vision and that may include refraction.

5. "Vision screening services" means services that include identifying, testing and evaluating a child's vision and identifying the need for follow-up services, as prescribed by rules adopted by the department pursuant to this section.

6. "Volunteer" includes any individual or member of a foundation, nonprofit organization or other organization that provides vision screenings and is invited to provide vision screenings by the school.

Chapter 8 Pure Food Control

Article 1 Adulteration and Misbranding

§ 36-901 Definitions

In this article, unless the context otherwise requires:

1. "Advertisement" means all representations disseminated in any manner or by any means other than by labeling for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of food.

2. "Color additive" means a material that both:

(a) Is a dye, pigment, or other substance made by a process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity from a vegetable, animal, mineral, or other source.

(b) When added or applied to a food is capable, alone or through reaction with other substance, of imparting color to that food, except that color additive does not include any material that has been exempted under the federal act. The term "color" includes, but is not limited to, black, white and intermediate grays. This paragraph shall not be construed to apply to any pesticide chemical, soil or plant nutrient, or other agricultural chemical solely because of its effect in aiding, retarding or otherwise affecting, directly or indirectly, the growth or other natural physiological process of produce of the soil, and thereby affecting its color, whether before or after harvest.

3. "Contaminated with filth" applies to any food not securely protected from dust, from dirt, and, as far as may be necessary by all reasonable means, from all foreign or injurious contaminations.

4. "Director" means the director of the department of health services.

5. "Federal act" means the federal food, drug and cosmetic act, as amended (21 United States Code section 301 et seq.).

6. "Food" or "article" means:

(a) Articles used for food or drink for man or animals.

(b) Chewing gum.

(c) Articles used for components of any such article.

7. "Food additive" means any substance, the intended use of which results or may be reasonably expected to result, directly or indirectly, in its becoming a component of or otherwise affecting the characteristics of any food, including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting or holding food, and including any source of radiation intended for any use if the substance is not generally recognized among experts qualified by scientific training and experience to evaluate its safety as having been adequately shown through scientific procedures, or in the case of a substance used in a food prior to January 1, 1958 through either scientific procedures or experience based on common use in food, to be safe under the conditions of its intended use. Food additive does not include:

(a) A pesticide chemical in or on a raw agricultural commodity.

(b) A pesticide chemical to the extent that it is intended for use or is used in the production, storage or transportation of any raw agricultural commodity.

(c) A color additive.

(d) Any substance used in accordance with a sanction or approval granted pursuant to laws or regulations administered by the federal food and drug administration.

8. "Immediate container" does not include package liners.

9. "Label" or "labeling" means a display of written, printed or graphic matter upon the immediate container or wrapper of an article or accompanying that article.

10. "Perishable food" means any food that may spoil or otherwise become unfit for human consumption because of its nature, type or physical condition, including fresh and processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits and vegetables and foods that have been packaged, refrigerated or frozen.

11. "Pesticide chemical" means any substance that alone, in chemical combination or in formulation with one or more other substances is an "economic poison" within the meaning of the federal insecticide, fungicide and rodenticide act (7 United States Code sections 135-135k) and that is used in the production, storage or transportation of raw agricultural commodities.

12. "Prepared food" means any food commercially processed and prepared for human consumption.

13. "Raw agricultural commodity" means any food in its raw or natural state, including, but not limited to, all fruits that are washed, colored or otherwise treated in their unpeeled natural form prior to marketing.

14. "Special inspection warrant" means an order in writing issued in the name of the state of Arizona, signed by a magistrate and directed to the director or his designee, authorizing him to enter into or upon any public or private property to make an inspection authorized by law.

§ 36-902 Prohibited acts

The following acts and the causing thereof within the state of Arizona are prohibited:

1. The manufacture, sale, delivery, holding or offering for sale of any food that is known to be adulterated or misbranded.

2. The adulteration or misbranding of any food.

3. The receipt in commerce of any food that is known to be adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise.

4. The dissemination of any false advertisement with respect to a food.

5. The giving of a guaranty or undertaking as provided for in section 36-914 which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by and containing the name and address of the person residing in the state of Arizona from whom he received the food in good faith.

6. The removal or disposal of a detained or embargoed food in violation of section 36-910.

7. The intentional alteration, mutilation, destruction, obliteration or removal of the whole or any part of the labeling of a food, or the doing of any other act with respect to a food, if such act is done while such food is held for sale and results in such food being adulterated or misbranded.

8. Forging, counterfeiting, simulating or falsely representing, or without proper authority using, any mark, stamp, tag, label or other identification device authorized or required by regulations promulgated under the provisions of this article or of the federal act.

§ 36-903 Food standards

When the director determines that such action will promote honesty and fair dealing in the interest of consumers, the director shall promulgate regulations establishing for any food or class of food a reasonable definition and standard of identity, or reasonable standard of quality or fill of container or any combination thereof. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the director may designate the optional ingredients which shall be named on the label. The definitions and standards so promulgated shall conform so far as practicable to the definitions and standards promulgated under authority of the federal act. The director shall not establish standards for any food or class of food regulated for any other state agency.

§ 36-904 Food adulteration

A. A food is adulterated if one or more of the following conditions exist:

1. It bears or contains any poisonous or deleterious substance which may render it injurious to health, but if the substance is not an added substance such food shall not be considered adulterated under this paragraph if the quantity of such substance in such food does not ordinarily render it injurious to health.

2. It is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of section 36-905, subsection A.

3. It is, or it bears or contains, any food additive which is unsafe within the meaning of section 36-905, provided that where a pesticide chemical has been used in or on a raw agricultural commodity in conformity with an exemption granted or a tolerance prescribed under section 36-905 and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating or milling, the residue of such pesticide chemical remaining in or on such processed food shall, notwithstanding the provisions of section 36-905, not be deemed unsafe if such residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice and the concentration of such residue in the processed food when ready-to-eat is not greater than the tolerance prescribed for the raw agricultural commodity.

4. It consists in whole or in part of a diseased, contaminated, filthy, putrid or decomposed substance, or it is otherwise unfit for food.

5. It has been produced, prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome or injurious to health.

6. It is the product of a diseased animal or an animal, other than wildlife, which has died other than by slaughter, or which has been fed uncooked garbage, except bakery and creamery products, commercial vegetables and all fruits, or offal from a slaughterhouse, with the exception of paunch wastes.

7. Its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health.

8. Any required constituent has been omitted or abstracted in whole or in part.

9. Any substance has been substituted in whole or in part for a substance normally found in the food or required to be present in the food by rules adopted under section 36-903.

10. Damage or inferiority has been concealed in any manner.

11. Any substance has been added to the food or mixed or packed with the food so as to increase its bulk or weight or reduce its quality or strength or make it appear better or of greater value than it is.

12. It is confectionery and it bears or contains any alcohol or nonnutritive article or substance except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one per cent, harmless natural wax not in excess of four-tenths of one per cent, harmless natural gum, and pectin. This paragraph shall not apply to any confectionery by reason of its containing less than five per cent by weight of alcohol or to any chewing gum by reason of its containing harmless nonnutritive masticatory substances.

13. It is or bears or contains any color additive which is unsafe within the meaning of section 36-905, subsection A.

B. Commercial feed and whole cottonseed which contain the levels of aflatoxin prescribed by section 3-2611.01 shall not be deemed adulterated.

C. Notwithstanding this section, whole cottonseed or cottonseed products deemed unadulterated pursuant to section 3-2611.01 and food additives and resulting substances used in accordance with a sanction or approval granted pursuant to laws or regulations administered by the federal food and drug administration are not deemed adulterated for purposes of this section.

§ 36-905 Tolerances for added poisonous ingredients

A. Any added poisonous or deleterious substance, any food additive, any pesticide chemical in or on a raw agricultural commodity or any color additive shall be deemed unsafe for the purpose of paragraphs 2, 3 and 13 of section 36-904, unless there is in effect a regulation pursuant to subsection B of this section limiting the quantity of such substance, and the use or intended use of such substance conforms to the terms prescribed by such regulation. A food shall not, by reason of bearing or containing such substance in accordance with such regulation, be considered adulterated within the meaning of paragraph 1 of section 36-904.

B. The director may adopt, amend or repeal regulations, whether or not in accordance with regulations promulgated under the federal act, prescribing tolerances, including zero tolerances, for any added poisonous or deleterious substances, for food additives, for pesticide chemicals in or on raw agricultural commodities or for color additives and prescribing the conditions under which a food additive or a color additive may be safely used and exemptions where such food additive or color additive is to be used solely for investigational or experimental purposes. In prescribing tolerances in the case of pesticide chemicals in or on raw agricultural commodities consideration shall be given to the persistence of background count due to prior applications of the pesticide chemical, and such rules and regulations may allow for any background count and consideration shall be given to restrictions, or lack of restrictions, on pesticide chemical use established pursuant to law. In prescribing tolerances in the case of pesticide chemicals, such tolerances shall not be more restrictive than those established pursuant to the federal act. The director may take action under this subsection upon his own motion or upon the petition of any interested party requesting that such action be taken. The petitioner, if any, shall establish by data submitted to the director that a necessity exists for such action and that its effect will not be detrimental to the public health. If the data furnished by the petitioner is not sufficient for the director to determine whether such action should be taken, the director may require additional data to be submitted and failure to comply shall be sufficient grounds to deny the request. In adopting, amending or repealing regulations relating to such substances the director shall consider among other relevant factors the following, which the petitioner, if any, shall furnish:

1. The name and all pertinent information concerning such substance, including where available its chemical identity and composition, a statement of the conditions of the proposed use, including directions, recommendations, suggestions and specimens of proposed labeling, all relevant data bearing on the physical or other technical effect, and the quantity required to produce such effect.

2. The probable composition of any substance formed in or on a food resulting from the use of such substance.

3. The probable consumption of any such substance in the diet of man and animals, considering any chemically or pharmacologically related substance in such diet.

4. Safety factors which, in the opinion of experts qualified by scientific training and experience to evaluate the safety of such substances for the use for which they are proposed, are generally recognized as appropriate for the use of animal experimentation data.

5. The availability of any needed practicable methods of analysis for determining the identity and quantity of:

(a) Such added substance in or on a food.

(b) Any other substance formed in or on a food because of the use of such added substance.

(c) The added substance and all its intermediates and impurities.

6. Facts supporting a contention that the proposed use of such substance will serve a useful purpose.

§ 36-906 Food misbranding

A food is misbranded if one or more of the following conditions exists:

1. Its labeling is false or misleading.

2. It is offered for sale under the name of another food with or without other descriptive words, or under any name which is likely to be misleading.

3. Its container is so made, formed or filled as to be misleading.

4. It is in package form unless it bears a label containing:

(a) The name and place of business of the manufacturer, packer or distributor.

(b) An accurate statement of the quantity of the contents in terms of weight, measure or numerical count, except that reasonable variations may be permitted and exemptions as to small packages may be established by regulations prescribed by the director.

5. Any word, statement or other information required by or under authority of this article to appear on the label does not appear in the labeling prominently and conspicuously as compared with other words, statements, designs or devices and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

6. Any word, statement or other information required by or under authority of this article to appear on the label does not also appear on the outside container or wrapper, if any, of the retail package of the food, or is not easily legible through the outside container or wrapper.

7. It purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by section 36-903, unless:

(a) It conforms to such definition and standard, and

(b) Its label bears the name of the food specified in the definition and standard, and, insofar as may be required by such regulations, the common names of optional ingredients present in such food, other than spices, flavoring and coloring.

8. It purports to be or is represented as:

(a) A food for which a standard of quality has been prescribed by regulations as provided by section 36-903 and its quality falls below such standard, unless its label bears in such manner and form as such regulations specify a statement that it falls below such standard, or

(b) A food for which a standard of fill of container has been prescribed by regulations as provided by section 36-903 and it falls below the applicable standard of fill, unless its label bears in such manner and form as such regulations specify a statement that it falls below such standard.

9. It is a food not subject to the provisions of paragraph 7 of this section, unless it bears labeling clearly stating:

(a) The common or usual name of the food, if any, and

(b) If made from two or more ingredients, the common or usual name of each ingredient; Except that spices, flavorings and colorings, other than those sold as such, may be designated as spices, flavorings and colorings without naming each, provided that to the extent compliance with the requirements of subdivision (b) of this paragraph is impracticable or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the director, and that the requirements of subdivision (b) of this paragraph shall not apply to food products which are packaged at the direction of purchasers at retail at the time of sale, the ingredients of which are disclosed to the purchasers by other means in accordance with regulations promulgated by the director.

10. It purports to be or is represented for special dietary uses unless its label bears such information concerning its vitamin, mineral and other dietary properties as the director prescribes by regulation as necessary to fully inform purchasers as to its value for such uses.

11. It bears or contains any artificial flavoring, artificial coloring or chemical preservative unless it bears labeling stating that fact, provided that to the extent that compliance with the requirements of this paragraph is impracticable, exemptions shall be established by regulations promulgated by the director.

12. It is intended as an ingredient of another food and when used according to directions will result in the final food product being adulterated or misbranded.

13. It is a color additive unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal act.

14. It contains vegetable fat or oil unless its label prominently and conspicuously specifies such vegetable fat or oil by common name and the percentage such fat or oil constitutes of the whole food product. If a vegetable fat blend is used the label shall state the percentage the fat blend represents of the whole food product, followed by the words "vegetable fat consisting of a blend of" and a listing of each vegetable fat or oil by its common name.

§ 36-907 Misleading labeling and advertisements; considerations

When a food is alleged to be misbranded because the labeling is misleading, or when an advertisement of a food is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall be considered, among other things and in addition to representations made or suggested in the labeling or advertising, the extent to which the labeling or advertisement fails to reveal facts material in light of such representations or material with respect to consequences which may result from use of the food under the conditions of use prescribed in the labeling or advertisement or under such conditions of use as are customary or usual.

§ 36-908 Special inspection warrant; violation; classification

A. The director and his designees having powers and duties under this article or the rules and regulations adopted pursuant to this article involving inspection of real or personal property, including any factory, warehouse, vehicle or establishment in which foods are manufactured, processed, packed, transported or held for introduction into commerce, for the purpose of pure food control may appear before a magistrate and apply for, obtain and execute special inspection warrants in accordance with the requirements of this section.

B. Upon showing by the affidavit of the director or his designee that consent to entry for inspection purposes has been refused or circumstances justify the failure to seek such consent, special inspection warrants may be issued by a magistrate for inspection of any public or private real and personal properties.

C. The warrant shall be in substantially the following form:

"County of _______________, state of Arizona

To the director of the department of health

services or any designee in the state of Arizona,

Proof by affidavit having been this day made before me by (person or persons whose affidavit has been taken) that in and upon certain premises in the (city, town or county) of _______________ and more particularly described as follows:

(describe the premises within reasonable particularity)

there now exists a reasonable governmental interest to determine if upon such premises there exists a violation of (section __________ of the Arizona Revised Statutes) and/or (section __________ of regulation or ordinance) you are therefore commanded in the daytime (or during reasonable business hours), to make an inspection of said premises as soon as practicable.

Date, signature and title of office."

The endorsement on the warrant shall be in substantially the following form: "Received by me _______, 19, at __________ o'clock __________.

(Name of director or designee)."

The return of officer shall be in substantially the following form: "I hereby certify that by virtue of the within warrant I searched the named premises and found the following things (describe findings).

Dated this __________ day of ____________, 19.

(Name of director or designee)."

D. The warrant may be served by the director or his designee mentioned in its directions, but by no other person except in aid of the director or his designee on his requiring it, the director or his designee being present and acting in its execution.

E. A warrant shall be executed and returned to the magistrate who issued it within ten days after its date. After the expiration of that time, the warrant shall unless executed be void.

F. Any person who knowingly fails or refuses to permit an inspection lawfully authorized by warrant issued pursuant to this article is guilty of a class 2 misdemeanor.

§ 36-909 Samples or specimens

The director may obtain such samples or specimens as he requires for the purpose of pure food control. The chief of the state laboratory shall make or cause to be made examinations of samples secured to determine whether any provision of this article is being violated.

§ 36-910 Seizure

A. When the director finds or has probable cause to believe that any food is adulterated or misbranded within the meaning of this article as to be dangerous or fraudulent, he shall affix to such food or its container a tag or other appropriate marking, giving notice that such food is, or is suspected of being, adulterated or misbranded and has been detained or embargoed, and warning all persons not to remove or dispose of such food by sale or otherwise until permission for removal or disposal is given by the director or the court. It is unlawful for any person to remove or dispose of such detained or embargoed food by sale or otherwise without such permission.

B. When a food detained or embargoed under subsection A has been found by the director to be adulterated or misbranded, he shall, with the assistance of the attorney general or of the county attorney of the county in which such food is found, petition the superior court in the county in which the food is detained or embargoed for an order condemning such food. When the director has found that a food so detained or embargoed is not adulterated or misbranded, he shall remove or cancel the tag or other marking.

C. If the court finds that a detained or embargoed food is adulterated or misbranded and that such adulteration or misbranding cannot be corrected by proper processing or labeling, the court shall by order direct that such food be destroyed at the expense of the claimant of the food under the supervision of the director, and all court costs and fees, storage and other proper expenses shall be taxed against the claimant. If the court finds that a detained or embargoed food is adulterated or misbranded, but that such adulteration or misbranding can be corrected by proper processing or labeling, the court may by order direct that, after court costs and fees, storage and other expenses have been paid by the claimant and a good and sufficient bond, guaranteeing that such food shall be so processed or labeled, has been executed, such food shall be returned to the claimant for such processing or labeling under the supervision of the director. Upon representation to the court by the director that the food is no longer in violation of this article, the food shall be released from the supervision and control of the director and the bond shall be exonerated.

D. When the director finds in any room, building, vehicle of transportation or other structure any meat, sea food, poultry, vegetable, fruit or other perishable foods which are unsound or contain any filthy, decomposed or putrid substances, or which may be poisonous or presents an imminent endangerment to health, the director shall forthwith seize them and, unless within five days of such seizure the claimant serves a written protest to such action upon the director, destroy them. If such a written protest is timely served on the director, he may petition the court as in subsection B of this section for an order condemning the food. An action brought under this subsection shall be given a calendar preference by the court.

§ 36-911 Enforcement regulations; decisions; appeal

A. The director may make regulations to enforce the provisions of this article which shall conform insofar as practicable with those promulgated under the federal act. The director may adopt a manual of procedures governing his operation.

B. All decisions rendered by the director, pursuant to the applicable law and regulations, shall be in writing and filed in the office of the department of health services. Notice of such decisions shall be given to the affected person by registered mail with return receipt requested. If no appeal is taken within the time provided by law, the decision of the director shall be final.

§ 36-912 Prosecution

The attorney general or the county attorney of the county in which the violation occurs to whom the director reports any violation of this article shall cause appropriate proceedings to be instituted in the proper court. Before any violation of this article is reported to any such attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views before the director or his designated agent, either orally or in writing, in person or by attorney, with regard to such contemplated proceeding.

§ 36-913 Injunction proceedings

In addition to the remedies provided in this article, the director, with the assistance of the attorney general or of the county attorney of the county in which the violation occurs, may apply to the superior court for injunctive relief.

§ 36-914 Violation; classification; guaranty

A. Any person who violates any of the provisions of section 36-902 is guilty of a class 2 misdemeanor. In the instance of a continuing violation, each day constitutes a separate offense.

B. No person shall be subject to the penalties of subsection A of this section for having violated paragraph 1 or 3 of section 36-902 if he establishes a guaranty or undertaking, designating this article, and signed by and containing the name and address of the person residing in the state of Arizona, from whom he received the article in good faith, to the effect that such article is not adulterated or misbranded within the meaning of this article.

C. No publisher, broadcast or telecast licensee or agency or medium for the dissemination of an advertisement shall be liable under this section by reason of the dissemination by him of such false advertisement, unless one or more of the following exists:

1. He knew or had reason to know that the advertisement was false.

2. He is also the manufacturer, packer, distributor or seller of the food to which the false advertisement relates.

3. He has refused a request of the director to furnish the director the name and post-office address of the manufacturer, packer, distributor, seller or advertising agency who caused him to disseminate such advertisement.

§ 36-915 Enrichment, fortification and labeling of flour, cereals and related foods; penalty

A. The director shall adopt enrichment standards governing the identity and quantity of vitamins and minerals to be added to flour produced from small grain, corn and soybeans, and for any food products containing twenty five per cent or more of flour produced from small grain, corn or soybeans.

B. The director shall adopt fortification standards governing the identity and quantity of vitamins and minerals to be added to processed cereal.

C. Such standards shall not exceed those necessary for the protection of the public health and safety. In adopting standards the director shall consider the current enrichment and fortification standards established by the secretary of health, education and welfare under authority of federal law.

D. The director shall adopt rules and regulations governing labeling of enriched or fortified products which rules and regulations shall contain standards for listing of added ingredients and a statement of the quantity of each within stated limits.

E. It shall be unlawful for any person to manufacture, sell or offer for sale for human consumption any foods or food products not enriched, fortified or labeled in accordance with the requirements of this section or the standards adopted by the director pursuant to this section. The provisions of this subsection shall not apply to any person who sells or offers to sell such foods or food products in an isolated transaction or transactions which are not conducted as a primary or regular business operation for such person.

§ 36-916 Donation of food items; exemption from civil liability; definitions

A. A person who makes a good faith donation of an apparently wholesome food item or an apparently fit nonfood grocery product to a charitable or nonprofit organization or to any other person is not liable for damages in any civil action for any injury or death due to the condition of the apparently wholesome food item or apparently fit nonfood grocery product unless the injury or death is a direct result of the intentional misconduct or gross negligence of the donor.

B. A person who harvests an apparently wholesome food item and makes a good faith donation of the apparently wholesome food item to a charitable or nonprofit organization or to any other person is entitled to the same exemption from civil liability as prescribed in subsection A.

C. A charitable or nonprofit organization or an officer, employee or volunteer of the organization that in good faith receives and distributes, without charge or any other person who in good faith receives and distributes, without charge, to an immediate family member, a donation of an apparently wholesome food item or an apparently fit nonfood grocery product is not liable for damages in any civil action for any injury or death due to the condition of the apparently wholesome food item or apparently fit nonfood grocery product unless the injury or death is a direct result of the intentional misconduct or gross negligence of the donating person or organization or its officers, employees or volunteer workers.

D. If the owner or manager of property allows a person to glean food on that property for gratuitous distribution by that person or a charitable or nonprofit organization, the owner and manager are not liable for damages in any civil action for the injury or death of the person making the collection unless the injury or death is the direct result of the intentional misconduct or gross negligence of the owner or manager.

E. A person who makes a good faith donation to a charitable or nonprofit organization of a food item or a nonfood grocery product that does not meet all quality and labeling standards imposed by federal, state and local laws and regulations is entitled to the same exemption from civil liability as prescribed in subsection A if the person making the donation informs the charitable or nonprofit organization that the food item or nonfood grocery product does not meet those quality and labeling standards and the organization agrees to recondition the donation to comply with all applicable quality and labeling standards before its distribution.

F. A charitable or nonprofit organization or an officer, employee or volunteer of the organization that in good faith receives and distributes, without charge to the recipient, a donation of a food item or a nonfood grocery product that it knows or has reason to know does not meet all quality and labeling standards imposed by federal, state and local laws and regulations is entitled to the same exemption from civil liability as prescribed in subsection C if the organization or its officers, employees or volunteers recondition the food item or nonfood grocery product in accordance with all applicable quality and labeling standards.

G. The director may enforce the provisions of this section in any manner not specifically prohibited by this article.

H. For the purposes of this section:

1. "Donation" means an item that is given for a fee significantly less than the value of the item or without requiring anything of monetary value from the charitable or nonprofit organization or any other person if the item is ultimately intended for gratuitous distribution.

2. "Fit nonfood grocery product" means a nonfood grocery product that meets all quality and labeling standards imposed by federal, state and local laws and regulations including a product not readily marketable due to any condition such as packaging, appearance, age, surplus or size and includes any household or industrial cleaning product, disposable paper or plastic product, personal hygiene product, cleaning equipment or cooking utensil.

3. "Glean" means to gather or collect an agricultural crop that is donated by an owner or manager of property.

4. "Wholesome food item" means a raw, cooked, processed or prepared edible substance or beverage that is intended for human consumption and that meets all quality and labeling standards imposed by federal, state and local laws and regulations, including food not readily marketable due to any condition such as packaging, appearance, age, freshness, grade, surplus or size.

Article 2 Cottage Food Products

§ 36-931 Definitions

In this article, unless the context otherwise requires:

1. "Cottage food product":

(a) Means a food that is prepared in a home kitchen by or under the direct supervision of an individual who is registered with the department and that either, as defined by the department in rule:

(i) Is not potentially hazardous or does not require time or temperature control for safety.

(ii) Is potentially hazardous or requires time or temperature control for safety.

(b) Does not include alcoholic beverages, unpasteurized milk or foods that are or that contain alcoholic beverages, fish and shellfish products, meat, meat by-products, poultry or poultry by-products unless the sale of those items is allowed by federal law, including all of the following:

(i) Poultry, poultry by-products or poultry food products if the registered food preparer raised the poultry pursuant to the one thousand bird exemption set forth in 9 Code of Federal Regulations section 381.10(c).

(ii) Poultry, poultry by-products or poultry food products if the poultry is from an inspected source pursuant to 9 Code of Federal Regulations section 381.10(d).

(iii) Meat, meat by-products or meat food products if the meat is from an inspected source pursuant to 9 Code of Federal Regulations section 303.1(d).

2. "Department" means the department of health services.

3. "Home kitchen" means a kitchen in either, as applicable:

(a) The residential home or dwelling of the individual who is registered with the department to prepare cottage food products, of a type that is normally found in a residential home and that does not exceed one thousand square feet.

(b) A facility for individuals with developmental disabilities and of a type normally found in a facility for individuals with developmental disabilities.

4. "Potentially hazardous" means that a cottage food product does not meet the requirements of the food code published by the United States food and drug administration, as modified and incorporated by reference by the department by rule.

5. "Third-party food delivery platform" means an online business that acts as an intermediary between consumers and multiple food facilities to submit food orders from a consumer to a participating food facility and to arrange for the delivery of the order from the food facility to the consumer.

§ 36-932 Labeling; food handler certification; sale and delivery requirements

A. Cottage food products must be packaged at home with an attached label in a clear and legible printed or handwritten font that does all of the following:

1. Clearly states the name and registration number of the food preparer.

2. Lists all the ingredients in the cottage food product and the cottage food product's production date.

3. Includes the following statement: "This product was produced in a home kitchen that may come in contact with common food allergens and pet allergens and is not subject to public health inspection."

4. If the cottage food product was made in a facility for individuals with developmental disabilities, discloses that fact.

5. Includes a website address provided by the department that includes all of the following:

(a) Contact information for consumers to report foodborne illnesses.

(b) Information on how to verify a food preparer's active registration status.

(c) Contact information for reporting issues regarding a food preparer's registration status.

B. If a cottage food product is offered for sale online, the food preparer must provide a prominent notification that includes all of the following:

1. The name and registration number of the food preparer.

2. A list of all ingredients in the cottage food product and the cottage food product's production date.

3. The following statement: "This product was produced in a home kitchen that may come in contact with common food allergens and pet allergens and is not subject to public health inspection."

4. A website address provided by the department that includes all of the following:

(a) Contact information for consumers to report foodborne illnesses.

(b) Information on how to verify a food preparer's active registration status.

(c) Contact information for reporting issues regarding a food preparer's registration status.

C. The person preparing the cottage food product or directly supervising the food preparation must complete a food handler training course from an accredited program and maintain active certification. The food preparer must register with the online registry established by the department pursuant to section 36-136, subsection I, paragraph 13. The food preparer must display the preparer's certificate of registration when operating as a temporary food establishment.

D. A food preparer:

1. Except as otherwise provided in this article, may sell cottage food products to the maximum extent allowed by federal law.

2. May not store cottage food products or food preparation equipment outside of the food preparer's home.

E. Cottage food products may be sold and delivered only under the following conditions:

1. Cottage food products that do not contain dairy, meat or poultry must be sold by the food preparer of the cottage food product or an agent of the food preparer, including a third-party vendor, and delivered to the consumer by the food preparer, the agent of the food preparer, the third-party vendor or a third-party carrier.

2. Cottage food products that are dairy products or that contain meat or poultry must be sold by the food preparer of the cottage food product in person or remotely, including over the internet but excluding third-party food delivery platforms, and delivered to the consumer in person.

3. If a cottage food product is potentially hazardous or requires time or temperature control for safety and is transported before final delivery to consumers, the cottage food product must be maintained at an appropriate temperature during transport, cannot be transported more than once and cannot be transported for longer than two hours.

4. If a cottage food product is sold by a third-party vendor, the cottage food product must be sold in a separate section of the store or on a separate display case from nonhomemade food items and the vendor must display a sign that indicates that the cottage food products are homemade and exempt from state licensing and inspection.

F. A cottage food product may not:

1. Be used as an ingredient in food products sold at a permitted retail food establishment.

2. Include marijuana or marijuana by-products.

G. A cottage food product shall contain only ingredients that are from sources that are approved by law.

H. A home kitchen that is used to prepare cottage food products may not operate as a commissary for the purposes of section 36-1761.

§ 36-933 Applicability of article; rules; enforcement

A. This article:

1. Is not more restrictive than the applicable federal laws.

2. Does not impede the department from investigating any reported foodborne illness.

3. Does not change the requirements for brand inspections, animal health inspections or any food inspections required by state or federal law, or change the requirements for the sale of milk, milk products, raw milk or raw milk products pursuant to section 3-606.

4. Does not affect any county or municipal building code, zoning code or ordinance or other land use regulation.

B. The department shall adopt rules relating to cottage food products that are consistent with this article and section 36-136, subsection I and that include both of the following:

1. A provision requiring recertification as a food handler or suspension or revocation of an individual's registration for failing to comply with the requirements of this article or impeding in the investigation of a reported foodborne illness.

2. Guidance relating to approved ingredient sources.

C. The department may enforce this article.

D. A county may not be required to enforce this article.

E. This article does not prevent the department and a local health agency, environmental agency or public health services agency from entering into a delegation agreement to enforce this article.

Article 3 Kosher Foods

§ 36-941 Definitions

In this article, unless the context otherwise requires:

1. "Kosher" means sanctioned by and prepared under the traditional Hebrew rules and requirements or dietary laws. The word "kosher" as used in this article shall not be construed to include the words "kosher style."

2. "Place of business" means grocery store, market, hotel, inn, restaurant, boarding house, eating house, lunch room, cafeteria, caterer or other establishment or place in which meat, meat products, food or food products are sold for human consumption.

§ 36-942 Sale of kosher food

A. It is unlawful, with intent to defraud:

1. To sell, offer or expose for sale, by any method or in any form, any meat or meat product, food or food product, whether raw or prepared for human consumption, which in any manner or by any device is falsely represented or held out to be kosher or composed exclusively of kosher products.

2. To sell, offer or expose for sale in the same place of business, both kosher and nonkosher meat, meat products, food or food products, unless there is prominently displayed in the show window of the place of business a sign bearing the words, in block letters not less than four inches in height, "kosher and nonkosher food sold here," and over each kind of meat, meat product, food or food product exposed or offered for sale a sign stating in block letters not less than two inches in height whether it is kosher or nonkosher.

3. To display in a place of business or in a window or door thereof, or in hand bills or other printed matter exhibited or distributed in or outside a place of business, words or letters in Hebrew, or any character, sign, emblem, insignia or symbol in simulation thereof, without displaying in conjunction therewith in English letters of at least equal size as such characters a statement whether kosher only, nonkosher only, or both kosher and nonkosher meat, meat products, food or food products are sold therein.

B. Possession of nonkosher meat, meat products, food or food products by a person advertising the sale of kosher meat, meat products, food or food products only, is prima facie evidence of intent to defraud.

§ 36-943 Violation; classification

A person violating a provision of this article is guilty of a class 1 misdemeanor.

Article 5 Bulk Food Sales

§ 36-971 Definitions

In this article, unless the context otherwise requires:

1. "Bulk food" means unpackaged and unwrapped food in aggregate containers from which quantities are withdrawn by the consumer, excluding fresh fruits, fresh vegetables, nuts in the shell, rice, beans, food in salad bars and potentially hazardous food.

2. "Potentially hazardous food" means food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea or other ingredients in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms except clean, whole, uncracked, odor free shell eggs or food that has a pH level of 4.6 or below or a water activity value of 0.85 or less measured at twenty-five degrees centigrade.

3. "Product module" means a multi-use or single service food contact container designed for customer self-service of bulk food by either direct or indirect means.

§ 36-972 Applicability of article

This article applies to any person who displays, sells or offers for sale at retail any bulk food.

§ 36-973 Labeling; exception

A. Bulk food product modules shall be conspicuously labeled with the common name of the product, a list of ingredients in order of predominance and a declaration of artificial color or flavor and any chemical preservatives contained in the product.

B. This section does not apply to bulk food manufactured on the premises or manufactured by the seller.

§ 36-974 Protection from contamination

A. Bulk food and product modules shall be protected from contamination during display, customer self-service, refilling and storage.

B. Each product module shall have a tight fitting lid that is kept in a closed position at all times except during stocking and customer service.

C. Containers supplied by customers shall not be used in a manner that contaminates bulk food. Take-home containers, including bags, cups and lids, provided for customer use shall be stored and dispensed in a sanitary manner.

D. Pet food and nonfood items shall be separated by a barrier or open space from product modules and bulk food.

E. Potentially hazardous food shall not be provided as bulk food for customer self-service.

F. Bulk food removed from a product module by a consumer but not ultimately purchased shall not be returned to the product module or offered for resale by the retailer.

§ 36-975 Dispensing

A. Bulk food may be dispensed by either:

1. Mechanical dispensing devices including gravity dispensers, pumps, extruders and augers.

2. Manual dispensing from lidded product modules using utensils including tongs, scoops, ladles and spatulas.

B. A manual dispensing utensil shall have a handle long enough to avoid consumer contact with the bulk food. When dispensing utensils are not in use, they shall be stored in the food with the handle extended out of the food, in a sleeve or protective housing attached or adjacent to the display unit or on a tether made of easily cleanable material and short enough to prevent contact with the floor.

§ 36-976 Construction; materials

A. Product modules and utensils shall be constructed of safe materials and shall be corrosion resistant, nonabsorbent, smooth, easily cleanable and durable under conditions of normal use. Product modules and utensils shall not impart odors, color, taste or contamination to the food.

B. Product modules shall be easily removable from the display unit for servicing unless they can be effectively cleaned and sanitized without removal by a procedure that will not contaminate bulk food or related equipment.

C. Surfaces of product module display units and all display equipment not intended for food contact, but exposed to food debris or other soiling, shall be nonabsorbent, smooth, easily cleanable, durable under conditions of normal use and free of unnecessary ledges, projections and crevices. Tethers, if used, shall be easily removable for cleaning.

§ 36-977 Cleaning frequency

A. Manual dispensing utensils shall be cleaned and sanitized at least daily, or at more frequent intervals based on the type of food and the amount of food particle accumulation or soiling.

B. Product modules, lids and other equipment shall be cleaned before restocking, if soiled or at intervals on a schedule based on the type of food and the amount of food particle accumulation or soiling. Food contact surfaces shall be cleaned and sanitized immediately if contamination is observed or suspected.

C. Any bulk food remaining in a soiled product module shall be discarded before the product module is refilled.

§ 36-978 Signs

A sign at least ten inches by fourteen inches shall be conspicuously posted within the immediate display area directing customers for health reasons to use the utensils provided when serving themselves, not to handle the food directly and not to consume food on the premises.

§ 36-979 Disease control

If the director of the department of health services finds that a disease or foreign matter is actually transmitted by a method of dispensing bulk foods that is permitted under section 36-975, the director may adopt rules which prohibit the dispensing of bulk foods in a manner authorized by the provisions of section 36-975 to ensure the public health and safety. The rules shall address the specific relationship between the disease or foreign matter being transmitted and the dispensing methods permitted under section 36-975.

§ 36-980 Local standards

Local governments shall not adopt standards governing persons, facilities or activities covered by this article which conflict with this article.

Chapter 9 Regulation of Alkalies, Acids, Human Blood and Its Derivatives and Poisons

Article 4 Caustic Alkalies and Acids

§ 36-1101 Definitions

As used in this article unless the context otherwise requires:

1. "Dangerous, caustic or corrosive substance" means:

(a) Hydrochloric acid or any preparation containing free or chemically unneutralized hydrochloric acid (HCl) in a concentration of ten per cent or more.

(b) Sulphuric acid or any preparation containing free or chemically unneutralized sulphuric acid (H2 SO4) in a concentration of ten per cent or more.

(c) Nitric acid or any preparation containing free or chemically unneutralized nitric acid (HNO3) in a concentration of five per cent or more.

(d) Carbolic acid (C6 H5 OH), otherwise known as phenol, or any preparation containing carbolic acid in a concentration of five per cent or more.

(e) Oxalic acid or any preparation containing free or chemically unneutralized oxalic acid (C2 H2 O4) in a concentration of ten per cent or more.

(f) Any oxalic salt in a concentration of ten per cent or more.

(g) Acetic acid (HO2 H3 O2) in a concentration of twenty per cent or more.

(h) Hypochlorous acid, either free or combined, or any preparation containing hypochlorous acid in a concentration so as to yield ten per cent or more by weight, of available chloride, excluding calx chlorinate, bleaching powder, and chlorine of lime.

(i) Potassium hydroxide or any preparation containing free or chemically unneutralized potassium hydroxide (KOH), including caustic potash and Vienna paste, in a concentration of ten per cent or more.

(j) Sodium hydroxide or any preparation containing free or chemically unneutralized sodium hydroxide (NaOH), including caustic soda and lye, in a concentration of ten per cent or more.

(k) Silver nitrate, sometimes known as lunar caustic, or any preparation containing silver nitrate (AgNO3) in a concentration of five per cent or more.

(l) Ammonia water or any preparation yielding free or chemically uncombined ammonia (NH3), including ammonium hydroxide and "hartshorn" in a concentration of five per cent or more.

2. "Misbranded parcel, package or container" means a retail parcel, package or container of any dangerous, caustic or corrosive substance for household use, not bearing a conspicuous, easily legible label or sticker which bears:

(a) The name of the article.

(b) The name and place of business of the manufacturer, packer, seller or distributor.

(c) The word "poison," running parallel with the main body of reading matter on the label or sticker, on a clear, plain background of a distinctly contrasting color, in uncondensed gothic capital letters not smaller than 24 point size, unless there is on the label or sticker no other type so large, in which case the type shall be not smaller than the largest type on the label or sticker.

(d) Directions for treatment in case of accidental personal injury by the dangerous, caustic or corrosive substance.

§ 36-1102 Misbranding of package prohibited

No person shall sell, barter or exchange, receive, hold, pack, display, or offer for sale, barter or exchange, in this state any dangerous, caustic or corrosive substance in a misbranded parcel, package or container designed for or suitable to household use.

§ 36-1103 Condemnation and disposal of misbranded articles

A. All substances and containers which are misbranded as defined by this article shall, by order of the court, be condemned and ordered destroyed, sold or disposed of as the court directs.

B. Proceeds from such sale less the actual costs, charges and expenses of seizure, holding and sale, as fixed by the court, shall be paid to the county treasurer of the county in which the articles were seized, but no such articles shall be sold contrary to the laws of the state.

C. Upon payment of the costs and expenses fixed by the court and execution and delivery to the court by the owner of the articles of a bond in an amount and with sureties approved by the court, conditioned that the articles will not be unlawfully sold or otherwise disposed of, the court may by order direct that the substances and articles be redelivered to the owner.

§ 36-1104 Enforcement; registration of brands and labels

A. The department of health services shall enforce the provisions of this article. The department may approve and register such brands and labels intended for use under the provisions of this article as are submitted which in its judgment conform to the requirements of this article.

B. In any prosecution under this article, the fact that a brand or label involved in the prosecution has not been submitted to the department for approval, or if submitted, has not been approved by it, is immaterial.

§ 36-1105 Violation; classification

A person violating the provisions of this article is guilty of a class 3 misdemeanor.

Article 5 Human Blood, Its Products and Derivatives

§ 36-1151 Definition of blood services

The procurement, processing, distribution, or use of whole human blood, plasma, blood products and blood derivatives for the purpose of injecting or transfusing them into the human body shall be construed as to the transmission of serum hepatitis to be the rendition of a service by every person participating therein and shall not be construed to be a sale.

Article 6 Arizona Poison Control System

§ 36-1161 Poison and drug information centers and Arizona poison control system established; staff; functions

A. The department of health services shall establish the Arizona poison control system consisting of the following two poison control centers:

1. The Arizona poison and drug information center. This center shall be located at and affiliated with the university of Arizona college of pharmacy, shall serve the needs of citizens in all counties outside of Maricopa county and shall be affiliated with the toxicology training programs of the Arizona health sciences center.

2. A poison and drug information center that shall serve the needs of citizens of Maricopa county and that shall be located in Maricopa county. This center shall be separate from the center specified in paragraph 1 of this subsection, shall be privately operated and shall be affiliated with an accredited medical toxicology fellowship postgraduate training program for physicians.

B. The Arizona poison control system shall provide comprehensive poison and drug information and management of poisoned persons.

C. Each poison control center shall employ a full-time staff, including a clinical or medical toxicologist and poison and drug information specialists and treatment consultants.

D. Each poison control center shall assume responsibility for the following functions in its respective region:

1. Poison prevention.

2. Data collection.

3. Education.

4. Management of poisoned persons.

5. Drug information services.

E. The Arizona poison control system may provide opioid assistance and referral resources through a toll-free telephone service for all communities in this state.

§ 36-1162 Powers and functions of Arizona poison control system

The Arizona poison control system shall:

1. Maintain a comprehensive list of poison and drug information resources.

2. Furnish advisory services to health professionals on the toxicity of poisons, drugs and household chemical products and effective and safe treatment of poisoning.

3. Provide information to the public on preventing accidental poisonings and first aid treatment of poisoning.

4. Provide a toll-free telephone service for all communities in this state, including all treatment facilities in this state.

5. Provide expert capability for the rapid identification of toxic agents.

6. Conduct and promote educational programs for professionals and the public on poisoning.

7. Establish, in consultation with the department of health services, physicians and hospitals, procedures for reporting the incidence of poisoning.

8. Procure grants to engage in research to enhance delivery of specialized emergency services in treating poisoning.

9. Establish a teratogen information program. The program shall establish a statewide toll-free telephone number to provide health care providers and the public with up-to-date information and referrals on possible teratogen exposure and shall develop educational programs and materials. For the purposes of this paragraph, "teratogen" means a physical, infectious or chemical agent that causes a change in the normal development of a human embryo or fetus.

10. Assist the department of health services in coordinating public health information regarding a chemical or other toxic fire event, including providing information regarding possible toxic exposures and appropriate health care facility referrals for those exposures.

§ 36-1163 Funding

The department of health services shall allocate to the poison and drug information center any monies appropriated to the department of health services for the center or the Arizona poison control system.

Chapter 10 Group Homes for Juveniles

Article 1 General Provisions

§ 36-1201 Juvenile group homes; service contracts; registry; definitions

A. State agencies that contract directly with group homes or regional behavioral health authorities that, as part of their contracts with the department of health services, subcontract with group homes shall require in each contract awarded, renewed or amended the following minimum provisions:

1. The group home shall provide a safe, clean and humane environment for the residents.

2. The group home is responsible for supervising the residents while in the group home environment or while residents are engaged in any off-site activities organized or sponsored by and under the direct supervision and control of the group home or affiliated with the group home.

3. All group home contractors shall be licensed by either the department of health services, the department of child safety or the department of economic security.

4. The award of a group home contract from an appropriate contracting authority is not a guarantee that children will be placed at the group home.

5. A licensing violation by the group home that is not corrected pursuant to this section may also be considered a contract violation.

6. State agencies and regional behavioral health authorities may share information regarding group home contractors. The shared information shall not include information that personally identifies residents of group homes.

7. The following contract remedies:

(a) A schedule of financial sanctions in an amount of up to $500 per violation that the contracting authority, after completing an investigation, may assess against the group home contractor for a substantiated contract violation relating to the health, care or safety of a resident or the safety of a neighbor. A financial sanction may be imposed for a contract violation related to the safety of a neighbor only if the conduct that constitutes the violation would be sufficient to form the basis for a civil cause of action for damages on the part of the neighbor whether or not such a civil action has been filed. These sanctions may be imposed by either deducting the amount of the sanction from any payment due or withholding future payments. The deduction or withholding may occur after any hearing available to the contractor.

(b) The contracting authority's right to remove residents from the group home or suspend new placements to the group home until the contract violation is corrected.

(c) The contracting authority's right to cancel the contract.

8. Within ten business days after the contracting authority receives a complaint relating to a group home, the contracting authority shall notify the group home provider and either initiate an investigation or refer the investigation to the licensing authority. If any complaint concerns an immediate threat to the health and safety of a child, the complaint shall be immediately referred to the licensing authority. If the contracting authority determines that a violation has occurred, it shall:

(a) Notify all other contracting authorities of the violation.

(b) Coordinate a corrective action plan consistent with the severity of the violation.

(c) Require the corrective action plan to be implemented within ninety days.

9. If a licensing deficiency is not corrected in a timely manner to the satisfaction of the licensing authority, the contracting authority may cancel the contract immediately on notice to the group home and may remove the residents.

10. A person may bring a complaint against any state agency that violates this section pursuant to title 41, chapter 6, article 6 or 10, as applicable. In addition to any costs or fees awarded to a person resulting from a complaint of a violation of this section, the agency shall revert the sum of $5,000 from its general fund operating appropriation to the state treasurer for deposit in the state general fund for each violation that is upheld by an administrative law judge or hearing officer. The legislature shall appropriate monies that revert under this section to a similar program that provides direct services to children.

B. When a licensing authority has determined that a licensing violation has occurred or is occurring, the licensing authority shall notify the appropriate contracting authority of the licensing violation.

C. A group home's record of contract violations and licensing violations may be considered by any contracting authority when it evaluates any request for proposals.

D. The department of health services shall establish a central registry of juvenile group homes licensed by this state. Each agency that is subject to the requirements of this section shall provide updated information for the registry to the department of health services every six months. The registry shall include the following information regarding each group home:

1. The location of the group home, including satellite facilities.

2. The number of residents at the group home and its satellite facilities.

3. The current, updated emergency contacts for the group home and its satellite facilities.

4. The current, updated contacts for the group home's licensing authority.

E. If the municipality in which a group home is located requests the department of health services to provide information from the registry, the department shall provide the information every six months to the municipality.

F. For the purposes of this article:

1. "Contract violation" means a licensing violation or a failure of the group home to comply with those provisions of its contract relating to subsection A, paragraphs 1, 2 and 3 of this section.

2. "Contracting authority" means a regional behavioral health authority or the state agency or its division, office, section, bureau or program that is responsible for administering and monitoring contracts with group homes.

3. "Group home":

(a) Means a residential facility that is licensed to serve more than four minors at any one time, that is licensed by the department of health services pursuant to chapter 4 of this title or section 36-591, subsection A or by the department of child safety pursuant to title 8, chapter 4, article 4 and that provides services pursuant to a contract for minors determined to be dependent as defined in section 8-201 or delinquent or incorrigible pursuant to section 8-341, or for minors with developmental disabilities, mental health or substance abuse needs.

(b) Does not include hospitals, nursing homes, child crisis and domestic violence shelters, adult homes, foster homes, facilities subject to any transient occupancy tax or behavioral health service agencies that provide twenty-four hour or continuous physician availability.

4. "Licensing authority" means the state agency or its division, office, section, bureau or program that is responsible for licensing group homes.

5. "Licensing violation" means a determination by the licensing authority that the group home is not in compliance with licensing requirements as prescribed in statute or rule.

6. "Neighbor" means a person residing within a one-quarter mile radius of the group home.

7. "Resident" means any person who is placed in a group home pursuant to a contract with a contracting authority.

Chapter 11 Health Care Services Freedom of Choice

Article 1 General Provisions

§ 36-1301 Health care services; constitutional freedom of choice; public policy; definitions

A. The power to require or regulate a person's choice in the mode of securing lawful health care services, or to impose a penalty related to that choice, is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the tenth amendment. This state exercises its sovereign power to declare the public policy of this state regarding the right of all persons residing in this state in choosing the mode of securing lawful health care services.

B. It is the public policy of this state, consistent with all constitutionally enumerated rights, as well as those rights otherwise retained by the people, that every person in this state may choose or decline to choose any mode of securing lawful health care services without penalty or threat of penalty.

C. The public policy stated in this section does not apply to impair any right of contract related to the provision of lawful health care services to any person or group.

D. The public policy stated in this section does not prohibit or limit care provided pursuant to article XVIII, section 8, Constitution of Arizona, or any statutes enacted by the legislature relating to workers' compensation.

E. A public official or an employee or agent of this state or any political subdivision of this state shall not act to impose, collect, enforce or effectuate any penalty in this state that violates the public policy prescribed in this section.

F. For the purposes of this section:

1. "Lawful health care services" means any health related service or treatment that is permitted or not prohibited by law or regulation and that may be provided by persons or businesses otherwise permitted to offer that service.

2. "Mode of securing" means to purchase directly, on credit or by trade, to contract for third-party payment by insurance or other legal means authorized by this state or to apply for or accept employer or government sponsored health care benefits under any conditions that may legally be required as a condition of those benefits, or any combination of these modes of purchase.

3. "Penalty" means a civil or criminal penalty or fine, a tax, salary or wage withholding or surcharge, or any named fee with a similar effect that is established by law or rule by a government established, created or controlled agency and that is used to punish or discourage the exercise of rights protected pursuant to this section.

Chapter 11.1 Terminal Patients' Right to Try Act

Article 1 General Provisions

§ 36-1311 Definitions

(Caution: 1998 Prop. 105 applies)

In this article, unless the context otherwise requires:

1. "Eligible patient" means a person to whom all of the following apply:

(a) The person has a terminal illness as determined by the person's physician and a consulting physician.

(b) The person's physician has determined that the person has no comparable or satisfactory United States food and drug administration approved treatment options available to diagnose, monitor or treat the disease or condition involved and that the probable risk to the person from the investigational drug, biological product or device is not greater than the probable risk from the disease or condition.

(c) The person has received a prescription or recommendation from the person's physician for an investigational drug, biological product or device.

(d) The person has given written informed consent for the use of the investigational drug, biological product or device or, if the patient is a minor or lacks the mental capacity to provide informed consent, a parent or legal guardian has given written informed consent on the patient's behalf.

(e) The person has documentation from the person's physician that the person has met the requirements of this paragraph.

2. "Investigational drug, biological product or device" means a drug, biological product or device that has successfully completed phase one of a clinical trial, but has not been approved for general use by the United States food and drug administration and remains under investigation in a clinical trial.

3. "Physician" means the physician who is providing medical care or treatment to the eligible patient for the terminal illness but does not include a primary care physician.

4. "Terminal illness" means a disease that, without life-sustaining procedures, will result in death in the near future or a state of permanent unconsciousness from which recovery is unlikely.

§ 36-1312 Availability of investigational drugs, biological products or devices; costs; insurance coverage

(Caution: 1998 Prop. 105 applies)

A. A manufacturer of an investigational drug, biological product or device may make available the manufacturer's investigational drug, biological product or device to eligible patients pursuant to this article. This article does not require that a manufacturer make available an investigational drug, biological product or device to an eligible patient.

B. A manufacturer may:

1. Provide an investigational drug, biological product or device to an eligible patient without receiving compensation.

2. Require an eligible patient to pay the costs of or associated with the manufacture of the investigational drug, biological product or device.

3. Require an eligible patient to participate in data collection relating to the use of the investigational drug, biological product or device.

C. This article does not require a health care insurer or any state agency to provide coverage for the cost of any investigational drug, biological product or device. A health care insurer may provide coverage for an investigational drug, biological product or device.

§ 36-1313 Action against physician license or health care institution license; prohibition

(Caution: 1998 Prop. 105 applies)

A. Notwithstanding any other law, a state regulatory board may not revoke, fail to renew or take any other action against a physician's license issued pursuant to title 32, chapter 13 or 17 based solely on a physician's recommendation to an eligible patient regarding or prescription for or treatment with an investigational drug, biological product or device.

B. Notwithstanding any other law, a state agency may not take any action against a health care institution's license based solely on the institution's participation in the treatment or use of an investigational drug, biological product or device under this chapter.

§ 36-1314 Violation; classification

(Caution: 1998 Prop. 105 applies)

An official, employee or agent of this state who blocks or attempts to block access of an eligible patient to an investigational drug, biological product or device is guilty of a class 1 misdemeanor.

Chapter 11.2 Prohibition on Discrimination Against Health Care Entities

Article 1 General Provisions

§ 36-1321 Definitions

In this article, unless the context otherwise requires:

1. "Discriminate" means taking or threatening any adverse action, including any of the following:

(a) Termination of employment.

(b) Transfer from current position.

(c) Demotion from current position.

(d) Adverse administrative action.

(e) Reassignment to a different shift or job title.

(f) Increased administrative duties.

(g) Refusal of staff privileges.

(h) Refusal of board certification.

(i) Reduction of wages, benefits or privileges.

(j) Refusal to award a grant, contract or other benefit.

(k) Refusal to provide residency training opportunities.

(l) Denial, suspension or revocation of a license.

(m) Impediments to creating, expanding or improving a health care entity.

(n) Impediments to acquiring or associating or merging with any other health care entity.

(o) Any other penalty or disciplinary or retaliatory action.

2. "Health care entity" means any of the following or an employee of any of the following:

(a) A health care institution as defined in section 36-401.

(b) A health professional as defined in section 32-3201.

(c) A health care services organization as defined in section 20-1051.

(d) A hospital service corporation or medical service corporation as defined in section 20-822.

(e) An accountable health plan as defined in section 20-2301.

3. "Person" includes this state and any agency or political subdivision of this state.

§ 36-1322 Discrimination prohibited; immunity

A. A person may not discriminate against a health care entity on the basis that the health care entity does not provide, assist in providing or facilitate in providing any health care item or service for the purpose of causing or assisting in causing the death of any individual, such as by assisted suicide, euthanasia or mercy killing.

B. A health care entity is not liable in any civil, criminal or administrative action for declining to provide any health care item or service for the purpose of causing or assisting in causing the death of any individual as specified in subsection A of this section.

C. This section does not apply to the withholding of cardiopulmonary resuscitation for a patient with a valid prehospital medical directive as provided in section 36-3251 or a similar medical order to withhold cardiopulmonary resuscitation issued by a licensed health care provider.

§ 36-1323 Civil action; damages; injunctive relief; attorney fees

A. A health care entity may bring a civil action in superior court for a violation of section 36-1322.

B. An additional burden or expense on another health care entity arising from the exercise of rights pursuant to section 36-1322 is not a defense in any civil action under this section.

C. If the superior court finds that discrimination in violation of section 36-1322 occurred, the court may award any of the following:

1. Actual and compensatory damages, including damages for emotional distress.

2. Court costs and attorney fees.

3. Preventive relief, including a permanent or temporary injunction, a restraining order or any other order against the person responsible for a violation of section 36-1322.

Chapter 11.3 Individualized Investigational Treatment

Article 1 General Provisions

§ 36-1331 Definitions

In this chapter, unless the context otherwise requires:

1. "Eligible facility" means a health care institution that operates under a federalwide assurance for the protection of human subjects pursuant to 45 Code of Federal Regulations part 46 and that is subject to the federal federalwide assurance regulations, policies and guidelines, including renewals or updates.

2. "Eligible patient" means a patient who meets all of the following conditions:

(a) Has a life-threatening disease or condition or a severely debilitating illness, attested to by the patient's physician.

(b) Has considered all other treatment options currently approved by the United States food and drug administration.

(c) Has received a recommendation from the patient's physician for an individualized investigational treatment based on an analysis of the patient's genomic sequence, human chromosomes, deoxyribonucleic acid, ribonucleic acid, genes, gene products, such as enzymes and other types of proteins, or metabolites.

(d) Has given written informed consent for the use of the individualized investigational drug, biological product or device.

(e) Has documentation from the patient's physician that the patient meets the requirements of this paragraph.

3. "Individualized investigational treatment":

(a) Means a drug, biological product or device that is unique to and produced exclusively for use by an individual patient based on the patient's own genetic profile.

(b) Includes individualized gene therapy, antisense oligonucleotides and individualized neoantigen vaccines.

4. "Life-threatening disease or condition" means a disease or condition that both:

(a) Has a high likelihood of death unless the course of the disease or condition is interrupted.

(b) Has a potentially fatal outcome and for which the end point of clinical trial analysis is survival.

5. "Severely debilitating illness" means a disease or condition that causes major irreversible morbidity.

6. "Written informed consent" means a written document that is signed by a patient, the patient's parent if the patient is a minor, the patient's legal guardian or the patient's advocate designated by the patient, that is attested to by the patient's physician and a witness and that, at a minimum, includes all of the following:

(a) An explanation of the currently approved products and treatments for the disease or condition from which the patient suffers.

(b) An attestation that the patient concurs with the patient's physician in believing that all currently approved and conventionally recognized treatments are unlikely to prolong the patient's life.

(c) Clear identification of the specific proposed individualized investigational drug, biological product or device that the patient is seeking to use.

(d) A description of the potentially best and worst outcomes of using the individualized investigational drug, biological product or device and a realistic description of the most likely outcome, including the possibility that new, unanticipated, different or worse symptoms might result and that death could be hastened by the proposed treatment. The description shall be based on the physician's knowledge of the proposed treatment in conjunction with an awareness of the patient's condition.

(e) A statement that the patient's health plan or a third-party administrator and provider are not obligated to pay for any care or treatment consequent to the use of the individualized investigational drug, biological product or device unless specifically required to do so by law or contract.

(f) A statement that the patient's eligibility for hospice care may be withdrawn if the patient begins curative treatment with the individualized investigational drug, biological product or device and that care may be reinstated if this treatment ends and the patient meets hospice eligibility requirements.

(g) A statement that the patient understands that the patient is liable for all expenses consequent to the use of the individualized investigational drug, biological product or device and that this liability extends to the patient's estate unless a contract between the patient and the manufacturer of the drug, biological product or device states otherwise.

§ 36-1332 Individualized investigational treatment; availability

A. A manufacturer operating within an eligible facility and pursuant to all applicable federalwide assurance regulations may make available to an eligible patient an individualized investigational treatment. An eligible patient's physician may request an individualized investigational drug, biological product or device from an eligible facility or manufacturer operating within the eligible facility. This article does not require that a manufacturer make available an individualized investigational drug, biological product or device to an eligible patient.

B. An eligible facility or manufacturer operating within an eligible facility may do both of the following:

1. Provide an individualized investigational drug, biological product or device to an eligible patient without receiving compensation.

2. Require an eligible patient to pay the costs of, or the costs associated with, the manufacture of the individualized investigational drug, biological product or device.

§ 36-1333 Insurance providers; third-party payors; coverage or payment not required

A. A health plan, third-party administrator or other third-party payor may, but is not required to, provide coverage for the cost of an individualized investigational drug, biological product or device or the cost of services related to the use of an individualized investigational drug, biological product or device under this article.

B. This article does not require a hospital or other health care institution that is licensed pursuant to chapter 4 of this title to provide new or additional services unless approved by the hospital or health care institution.

§ 36-1334 Heirs; no debt liability related to treatment

Notwithstanding any other law, if a patient dies while being treated with an individualized investigational drug, biological product or device, the patient's heirs are not liable for any outstanding debt related to the treatment.

§ 36-1335 Eligible patient's access; blocking by state prohibited

An official, employee or agent of this state may not block or attempt to block an eligible patient's access to an individualized investigational drug, biological product or device. Counseling, advice or a recommendation consistent with medical standards of care from a licensed physician is not a violation of this section.

§ 36-1336 No private cause of action

This article does not create a private cause of action against a manufacturer of an individualized investigational drug, biological product or device or against any other person or entity involved in the care of an eligible patient using the individualized investigational drug, biological product or device for any harm done to the eligible patient resulting from the individualized investigational drug, biological product or device if the manufacturer or other person or entity is complying in good faith with the terms of this article and has exercised reasonable care.

Chapter 12 Public Housing

Article 1 Municipal Housing

§ 36-1401 Definitions

In this article, unless the context otherwise requires:

1. "Area of operation" includes all the territory of a city, town or county.

2. "Authority", "public housing authority", "public agency" or "housing authority" means an agency of a city, town or county created and controlled pursuant to this article.

3. "Blighted area" means an area where dwellings predominate that are detrimental to safety, health or morals because they are dilapidated or overcrowded or lack ventilation, light or sanitary facilities.

4. "Bonds" means bonds, notes, interim certificates, debentures or other obligations issued by a public housing authority, city, town or county pursuant to this article.

5. "Clerk" means the clerk of the board of supervisors, the city or town clerk or the officer charged with the duties customarily imposed on the clerk.

6. "Federal government" includes the United States, the United States department of housing and urban development or any other agency or instrumentality, corporate or otherwise, of the United States.

7. "Governing body" means the board of commissioners of a public housing authority, the common council or other legislative body of the city or town or the county board of supervisors.

8. "Housing project":

(a) Means any work or undertaking:

(i) To demolish, clear or remove buildings from any blighted area. Such work or undertaking may embrace the adoption of the area to public purposes, including parks or other recreational or community purposes.

(ii) To provide decent, safe and sanitary urban or rural dwellings, apartments or other living accommodations for persons of low income. Such work or undertaking may include buildings, land, equipment, facilities and other real or personal property to be used for any necessary, convenient or desirable appurtenances, streets, sewers, water service, parks, site preparation, gardening, administrative, community, health, recreational, welfare or other purposes and consistent with the provision of housing pursuant to this article.

(iii) To accomplish a combination of the foregoing.

(b) Includes the planning and designing of buildings and improvements, the acquisition or receipt of property, the demolition of existing structures, the construction, reconstruction, alteration and repair of the improvements and all other work in connection therewith.

9. "Mayor" means the mayor of the city or town or the officer thereof charged with the duties customarily imposed on the mayor or executive head of a city or town.

10. "Obligee" includes any holder of bonds issued pursuant to this article, trustee or trustees for such bondholders, or lessor demising to a public housing authority, city, town or county property used in connection with a housing project, or an assignee or assignees of such lessor's interest or any part thereof, and the federal government when it is a party to a contract with a public housing authority, city, town or county in regard to a housing project.

11. "Persons of low income" means persons or families who lack the amount of income that is necessary, as determined by the public housing authority, city, town or county undertaking the housing project, to enable them, without financial assistance, to live in decent, safe and sanitary dwellings without overcrowding.

12. "Real property" includes all lands, including improvements and fixtures on the land, and property of any nature appurtenant to the land, or used in connection with the land, and every estate, interest and right, legal or equitable, therein, including terms for years and liens by way of judgment, mortgage or otherwise and the indebtedness secured by such liens.

13. "State public body" means any public housing authority, county, municipal corporation, commission, district, authority or other subdivision or public body of the state.

§ 36-1402 Legislative finding and declaration of necessity

A. It is declared that:

1. Unsanitary or unsafe dwelling accommodations exist in the various cities, towns and counties of the state and that persons of low income are required to reside in such unsanitary or unsafe accommodations.

2. Within these cities, towns and counties there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford and that they are forced to occupy overcrowded and congested dwelling accommodations.

3. The conditions specified by paragraphs 1 and 2 cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the state and impair economic values.

4. These conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection and other public services and facilities.

5. These areas cannot be cleared, developed or rehabilitated and the shortage of safe and sanitary dwellings for persons of low income cannot be relieved solely through the operation of private enterprise, and that development of housing projects for persons of low income as provided by this article will therefore not be competitive with private enterprise.

6. The clearance, planning, design and reconstruction of areas in which unsanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired by purchase, condemnation or other legal means, and that such activities are governmental functions of state concern.

7. It is in the public interest that work on projects for such purposes be commenced as soon as possible to relieve the affordable housing shortage that now constitutes an emergency.

B. The necessity in the public interest for the provisions of this article is declared as a matter of legislative determination.

§ 36-1403 Powers of municipalities

A. Every public housing authority, city, town and county, in addition to other powers conferred by this article, may:

1. Within its area of operation prepare, carry out, acquire, purchase, lease, construct, reconstruct, improve, alter, extend or repair any housing project or projects or part of these projects, and operate and maintain the project or projects. For any such purpose the governing body of the public housing authority, city, town or county may appropriate money and authorize the use of any property of the public body.

2. Purchase its bonds issued pursuant to this article at a price not exceeding the principal amount of the bonds and accrued interest for the purpose of canceling these bonds.

3. Lease or rent dwellings, houses, accommodations, lands, buildings, structures or facilities embraced in a housing project and, subject to the limitations of this article, establish, collect and revise the rents or charges.

4. Own, hold and improve real or personal property.

5. Purchase, lease, obtain options on and acquire by gift, grant, bequest, devise or otherwise any real or personal property or any interest in that real or personal property.

6. Acquire by the exercise of the power of eminent domain any real property.

7. Sell, lease, exchange, transfer, assign, pledge or dispose of any real or personal property or interest in that real or personal property.

8. Procure or agree to the procurement of insurance or guarantees from the federal government of the payment of bonds or parts of bonds that are issued pursuant to this article, including the power to pay premiums on that insurance.

9. Except for federal lands or lands that belong to a registered Indian tribe, enter on any lands, buildings or property for the purpose of making surveys, soundings and examinations in connection with the planning or construction, or both, of a housing project.

10. Insure or provide for insurance for housing projects of the public housing authority, city, town or county against such risks as the governing board, council or commission of the public housing authority, city, town or county deems advisable.

11. Arrange or contract for furnishing by a person, company or agency, public or private, of services, privileges, works or facilities for or in connection with a housing project or the occupants of a housing project and include in any construction contract let in connection with a housing project stipulations requiring the contractor and subcontractors to comply with employment requirements, including those in the constitution and laws of the state, as to minimum wages and maximum hours of labor, and with any conditions that the federal government attaches to its financial aid to the project.

12. Within its area of operation:

(a) Investigate living, dwelling and housing conditions and the means and methods of improving such conditions.

(b) Determine where blighted areas exist or where there is a shortage of decent, safe and sanitary dwelling accommodations for persons of low income.

(c) Make studies and recommendations relating to the problem of clearing, planning, designing and reconstructing blighted areas, and the problem of providing dwelling accommodations for persons of low income, and cooperate with the state or any political subdivision of this state in actions taken in connection with these problems.

(d) Engage in research, studies and experimentation on the subject of housing.

13. Exercise all or any part or combination of powers granted by this article.

B. A county shall not initiate a housing project within the boundaries of a city or town unless authorized by resolution of the governing body of the city or town.

C. To obtain low income tax credits, a county, city, town or public housing authority may, pursuant to section 11-952, jointly exercise powers prescribed in this article, including the joint submission of an application for low income tax credits for one or more projects, on a cooperative basis with one another or may jointly form a nonprofit corporation that may exercise the powers prescribed in this article.

D. A public housing authority established pursuant to this article shall be a tax-levying public improvement district for all the purposes of article XIII, section 7 of the constitution of Arizona and has the powers, privileges and immunities specifically granted by law, provided that a public housing authority may not levy or otherwise charge a tax or other assessment against the taxpayers of the jurisdiction establishing the public housing authority.

§ 36-1404 Housing authority; employees

A. Every city, town or county, in addition to other powers conferred by this article, may, by proper resolution of its governing body, create as an agent of that city, town or county a housing authority of the city, town or county. The city, town or county may delegate to that authority its power to acquire, own, maintain and dispose of real estate and appurtenances to real estate and to construct, maintain, operate and manage a housing project or projects and, notwithstanding the foregoing enumeration, may delegate to the authority any or all of the powers conferred on the city, town or county by this article, including the power to borrow money, issue bonds and acquire real property through the exercise of eminent domain. However, public housing authorities that act and exist under the control of a city, town or county may exercise eminent domain or issue bonds only on and pursuant to specific, formal case by case project preapproval from the governing body of that city, town or county.

B. If the governing body of a city or town adopts a resolution as provided by subsection A, it shall promptly notify the mayor of the adoption. As directed by that resolution, the mayor shall appoint at least five persons as commissioners of the authority. If the board of supervisors adopts a resolution as provided in subsection A, the board, consistent with that resolution, shall thereafter appoint at least five persons as commissioners of the authority. The commissioners first appointed shall be designated to serve for staggered terms of one, two and three years from the date of their appointment, but thereafter commissioners shall be appointed for a term of office of four years. Vacancies from causes other than expiration of term shall be filled for the unexpired term only. A commissioner of an authority shall not hold any other office or employment of the city, town or county for which the authority is created. A commissioner shall hold office until the commissioner’s successor has been appointed and has qualified. A certificate of appointment or reappointment of a commissioner shall be filed with the appropriate city, town or county clerk, and the certificate shall be conclusive evidence of the due and proper appointment of the commissioner. A commissioner shall not receive compensation for the commissioner’s services but is eligible to receive reimbursement for necessary expenses, including travel, incurred in the discharge of the commissioner’s duties. The governing body of a city, town or county may elect by majority vote to provide that each council member or the mayor, while rightfully holding that office, shall automatically be and act as a commissioner of that government's public housing authority.

C. Powers delegated by a city, town or county to an authority are vested in the commissioners. A majority of the authorized number of commissioners constitutes a quorum for all purposes including conducting the business of the authority and exercising its powers. If the meeting is duly noticed and a quorum is present, action may be taken by the authority on a vote of a majority of the commissioners present. The mayor or board of supervisors shall designate which of the commissioners shall be chairman and vice-chairman, respectively. The governing body of a city, town or county that creates a housing authority may authorize the authority to employ a secretary, who shall also be executive director, and technical experts and other officers, attorneys, agents and employees, permanent and temporary, as the authority requires, to determine their qualifications, duties and compensation, and to delegate to one or more of them powers or duties as the authority deems proper. A city, town, county or authority that has in place an appropriate and sufficient housing department or appropriate and sufficient authority staff, by a resolution of its governing body, may authorize and direct that the department or authority staff provide any executive, administrative, fiscal or technical experts and other officers, attorneys, independent contractors, agents and employees to another city, town, county or authority as may be necessary or desirable to the achievement of the purposes and powers prescribed in this article.

D. Meetings of the public housing commissions are subject to the public meetings laws.

§ 36-1405 Removal of commissioner

A. A commissioner may be removed by the mayor or board of supervisors for inefficiency, neglect of duty or misconduct in office. The commissioner shall be removed only after he has been given a copy of the charges at least ten days prior to the hearing and has had an opportunity to be heard in person or by counsel.

B. If a commissioner is removed, a record of the proceedings together with the charges and findings shall be filed in the office of the clerk of that city, town or county.

C. This section does not apply to a commissioner who automatically holds office by virtue of being a city council member.

§ 36-1406 Interest of municipal officer in project or property prohibited

A. An officer of a public housing authority, city, town or county shall not acquire any direct or indirect interest in a housing project or in property included or planned to be included in a housing project of the public housing authority, city, town or county or have any direct or indirect interest in any contract or proposed contract for materials or services to be furnished or used in connection with a housing project.

B. If an officer of a public housing authority, city, town or county owns or controls an interest directly or indirectly in property included or planned to be included in a housing project, the officer shall immediately disclose that interest in writing to the governing body of the public housing authority, city, town or county, and the disclosure shall be entered upon the minutes of the governing body. Failure to disclose the interest is misconduct in office. After making this disclosure, the officer shall not participate in any action by the city, town or county affecting the property.

§ 36-1407 Eminent domain

A. A city, town or county may acquire by the exercise of eminent domain any real property which it deems necessary for its purposes under this article after the adoption by it of a resolution declaring that the acquisition of the real property described is necessary for such purposes. A city, town or county may exercise the power of eminent domain in the manner provided by title 12, chapter 8, article 2 or 3 or in the manner provided by any other applicable statutory provisions for the exercise of the power of eminent domain. Title to property so acquired shall be taken in the name of the city, town or county.

B. Property already devoted to a public use may be acquired in like manner, but property belonging to the federal government, a registered Indian tribe, the state or any political subdivision shall not be acquired without its consent.

C. A public housing authority may exercise the power of eminent domain. The power of eminent domain may also be exercised on behalf of a public housing authority. This power shall only be exercised in relation to the provision of low income housing pursuant to this article. A public housing authority that acts on behalf of a city, town or county may exercise the power of eminent domain and may take property title in the name of that authority if it first obtains the written approval by resolution of the governing body that controls its acts and existence pursuant to this article.

§ 36-1408 Use of revenues; determining rentals

It is the policy of the state that each public housing authority, city, town or county shall manage and operate its housing projects in an efficient manner to enable it to fix the rentals for dwelling accommodations at the lowest possible rates consistent with its providing decent, safe and sanitary dwelling accommodations, and that a public housing authority, city, town or county shall not construct or operate the project to obtain net revenue unless and to the extent that any net revenues are used only for the provision and support of low income housing and support services. To this end a public housing authority, city, town or county shall fix the rentals for dwellings in its housing projects at no higher rates than it finds necessary to produce revenues which, together with any grants or subsidies from the federal government or other sources for housing projects, will be sufficient:

1. To pay, as they become due, the principal and interest on bonds of the public housing authority, city, town or county issued under the provisions of this article.

2. To meet the cost of and to provide for maintaining and operating the projects and the provision of related support services for the tenants, including the cost of any insurance, and the administrative expenses of the public housing authority, city, town or county incurred in connection with maintaining and operating the projects and support services.

3. To create, during not less than the six years immediately succeeding the issuance of any bonds, a reserve sufficient to meet the largest principal and interest payments which will be due on the bonds in any one year thereafter and to maintain the reserve.

§ 36-1409 Rentals and tenant selection

A. In the operation or management of housing projects a public housing authority, city, town or county shall at all times observe the following duties with respect to rentals and tenant selection:

1. Unless the commissioners have determined that a mixed income project is in the community's best interests, the public housing authority, city, town or county may rent or lease the dwelling accommodations only to persons of low income and at rentals within the financial reach of such persons.

2. It may rent or lease to a tenant dwelling accommodations consisting of the number of rooms, but no greater number, which it deems necessary to provide safe and sanitary accommodations to the proposed occupants, without overcrowding.

3. It shall fix income limits for occupancy and rents after taking into consideration the family size, composition, age, disability and other factors which might affect the rent-paying ability of the person and the economic factors which affect the financial stability and solvency of the project.

B. This section and section 36-1408 do not limit the power of a public housing authority, city, town or county to vest in an obligee the right, in the event of a default by the city, town or county, to take possession of and operate a housing project or to cause the appointment of a receiver, free from all the restrictions imposed by this section or section 36-1408.

§ 36-1409.01 Pets for elderly tenants and tenants with disabilities; exceptions; conditions; appeal procedures; definitions

A. Notwithstanding any other statute, a public agency which owns, operates, manages or contracts for rental housing accommodations shall not prohibit elderly tenants or tenants with disabilities from keeping pets in their dwelling units.

B. This section does not prevent a public agency which owns, operates, manages or contracts for rental housing accommodations from requiring the removal of any pet which by its conduct or condition constitutes a threat or nuisance to other occupants of the housing project. A person shall not keep a pet in violation of health statutes or under circumstances constituting cruelty to animals pursuant to section 13-2910.

C. A public agency which owns, operates, manages or contracts for rental housing accommodations shall not impose any requirement which makes the keeping of a pet by an elderly tenant or tenant with a disability financially prohibitive and shall not in any case require a deposit of more than one month's rent for the keeping of a pet. This section does not relieve an elderly tenant or tenant with a disability from any liability otherwise imposed by law for damages caused by the tenant's pet.

D. A public agency which owns, operates, manages or contracts for rental housing accommodations is not liable for personal or property damage caused by a pet kept in the housing project by an elderly tenant or tenant with a disability unless it is proved that its agents or employees had prior actual knowledge of a dangerous propensity of the pet or a dangerous condition created by the pet and did not take timely and reasonable measures to mitigate or protect against the perceived threat.

E. A public agency which owns, operates, manages or contracts for rental housing accommodations may adopt reasonable regulations relating to pets including number of pets and neutering when appropriate and may impose conditions for the tenancy of elderly tenants or tenants with disabilities with pets different from those applicable to such tenants without pets, if these conditions are reasonably related to the presence of the pets.

F. An elderly tenant or tenant with a disability or an elderly applicant or applicant with a disability for tenancy may appeal from the adoption or application of any regulation or condition adopted pursuant to this section in accordance with grievance procedures of the particular housing authority which owns, operates, manages or contracts for the rental housing accommodations established to resolve tenant disputes. A copy of the grievance procedures shall be provided to an elderly tenant or tenant with a disability or an elderly applicant or applicant with a disability for tenancy who keeps or wishes to keep a pet.

G. For the purposes of this section:

1. "Elderly" means a person who is at least sixty years of age or as otherwise defined by a specific program.

2. "Person with a disability" means a person who has a physical impairment which substantially limits one or more of the person's major life activities or has a record of such an impairment or has been regarded as having such an impairment, as verified by a signed statement of a physician licensed pursuant to title 32, chapter 13 or 17.

3. "Pet" means a domesticated dog, cat, bird, fish, mouse, gerbil, hamster, turtle, guinea pig or chinchilla.

4. "Tenant" means a person who rents or resides in a dwelling unit in rental housing accommodations owned, operated, managed or contracted for by a public agency.

§ 36-1410 Bonds; issuance; refunding; sources of payment; personal liability; debt limitation

A. A public housing authority, city, town or county may issue bonds from time to time to finance in whole or in part the cost of the preparation, acquisition, purchase, lease, construction, reconstruction, improvement, alteration, extension or repair of a project or undertaking authorized by this article. A public housing authority, city, town or county may also issue refunding bonds for the purpose of paying or retiring bonds previously issued by it under authority of this article.

B. In order to carry out the purposes of this article, a public housing authority, city, town or county, on proper resolution, may issue bonds on which the principal and interest are payable:

1. Exclusively from the income and revenues of the housing project financed with the proceeds of the bonds.

2. Exclusively from such income and revenues together with any gifts, grants, bequests or devises from any legal, unencumbered source or grants and contributions from the federal government.

C. Neither the governing body of a public housing authority, city, town or county nor any person executing the bonds shall be liable personally on a bond by reason of the issuance thereof under authority of this article. The bonds and other obligations issued under this article shall be payable solely from the sources provided by subsection B of this section. The bonds do not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction.

D. A public housing authority shall not issue, sell, advertise or redeem bonds of any kind or take any other action pursuant to this section or sections 36-1411 through 36-1415 without first obtaining the written approval by resolution of the governing body of the city, town or county that controls the acts and existence of that authority.

§ 36-1411 Form and sale of bonds

A. Bonds of a public housing authority, city, town or county issued under this article shall be authorized by resolution of the governing body of the respective city, town or county. Such bonds may be issued in any one or more series, shall bear such date or dates, mature at such time or times, bear interest at such rate or rates, not exceeding nine per cent per annum, be in such denomination or denominations and in such form, either coupon or registered, carry such conversion or registration privileges, have such rank or priority, be executed in such manner, payable in such medium of payment at such place or places, and subject to such terms of redemption, with or without premium, as the resolution, its trust indenture or the bonds so issued provide.

B. The bonds may be sold at public or private sale at not less than par.

C. If an officer of the public housing authority, city, town or county whose signature appears on bonds or coupons ceases to be an officer before delivery of the bonds, the person's signature is still valid and sufficient for all purposes, as if the officer had remained in office until delivery. Any provision of law to the contrary notwithstanding, bonds issued pursuant to this article are fully negotiable.

D. In an action or proceeding involving the validity or enforceability of a bond of a public housing authority, city, town or county or the security therefor, if a bond recites in substance that it has been issued by the public housing authority, city, town or county to aid in financing a housing project to provide dwelling accommodations for persons of low income, the bond is conclusively deemed to have been issued for a housing project of such character, and the project is conclusively deemed to have been planned, located and constructed in accordance with this article.

§ 36-1412 Additional provisions of bonds

In connection with the issuance of bonds pursuant to this article, or the incurring of obligations under leases made pursuant to this article, and in order to secure the payment of the bonds or obligations, a public housing authority, city, town or county may:

1. Pledge all or any part of the gross or net rents, fees or revenues of a housing project financed with the proceeds of the bonds, to which its rights then exist or may thereafter come into existence.

2. Covenant against pledging all or any part of the project rents, fees and revenues, or against permitting or suffering any lien on the revenues or property.

3. Covenant with respect to limitations on its right to sell, lease or otherwise dispose of any housing project or any part of a housing project.

4. Covenant as to what other or additional debts or obligations may be incurred by it.

5. Covenant as to the bonds to be issued and as to the issuance of the bonds in escrow or otherwise and as to the use and disposition of the proceeds.

6. Provide for the replacement of lost, destroyed or mutilated bonds.

7. Covenant against extending the time for the payment of its bonds or interest.

8. Redeem the bonds, covenant for their redemption and provide the terms and conditions.

9. Covenant, subject to the limitations contained in this article, as to the rents and fees to be charged in the operation of a housing project or projects, the amount to be raised each year or other period of time by rents, fees and other revenues, and as to the use and disposition to be made .

10. Create or authorize the creation of special funds for monies held for construction or operating costs, debt service, reserves or other purposes and covenant as to the use and disposition of the monies held in such funds.

11. Prescribe the procedure, if any, by which the terms of any contract with bondholders may be amended or abrogated, the amount of bonds the holders of which shall consent thereto and the manner in which such consent may be given.

12. Covenant as to the use of any or all of its real or personal property acquired pursuant to this article, and covenant as to the maintenance of such property, the replacement thereof, the insurance to be carried thereon and the use and disposition of insurance monies.

13. Covenant as to the rights, liabilities, powers and duties arising upon the breach by it of any covenant, condition, or obligation, and covenant and prescribe as to events of default and terms and conditions upon which any or all of its bonds or obligations shall become or may be declared due before maturity, and as to the terms and conditions on which the declaration and its consequences may be waived.

14. Vest in a trustee or trustees or the holders of bonds issued pursuant to this article, or any specified proportion of them, the right to enforce payment of the bonds or any covenants securing or relating to the bonds, vest in a trustee or trustees the right, in the event of a default by the public housing authority, city, town or county, to take possession of any housing project or part, and, as long as the public housing authority, city, town or county continues in default, to retain possession and use, operate and manage the project, and to collect the rents and revenues arising therefrom and to dispose of the monies in accordance with the agreement of the public housing authority, city, town or county with the trustee, provide for the powers and duties of a trustee or trustees and limit the liabilities thereof, and provide the terms and conditions on which the trustee or trustees or the holders of bonds, or any proportion of them, may enforce any covenant or rights securing or relating to the bonds.

15. Exercise all or any part or combination of the powers granted by this section, make covenants other than and in addition to the covenants expressly authorized by this section, of like or different character, and make covenants that tend to make the bonds more marketable notwithstanding that the covenants, acts or things are not enumerated in this section.

§ 36-1413 Construction of bond provisions

This article, without reference to other statutes of the state, shall constitute full authority for the authorization and issuance of bonds authorized by this article. No other law with regard to the authorization or issuance of obligations that requires a bond election or in any way impedes or restricts the carrying out of the acts authorized by this article to be done shall be construed as applying to any proceedings taken or acts done pursuant to this article.

§ 36-1414 Certification of bonds by attorney general

A. A public housing authority, city, town or county may submit to the attorney general any bonds to be issued under this article after all proceedings for issuance of the bonds have been taken. On submission of the proceedings to the attorney general, the attorney general shall examine and determine the validity of the bonds and the regularity of all connected proceedings.

B. If the proceedings conform to this article and are otherwise regular in form, and if the bonds when delivered and paid for will constitute binding and legal obligations of the public housing authority, city, town or county enforceable according to the terms of the bonds, the attorney general shall certify in substance on the back of each of the bonds that it is issued in accordance with the constitution and laws of the state.

§ 36-1415 Housing bonds as security or legal investment

A. The bonds or other obligations of a public housing authority, city, town or county issued for a housing project under the authority of this article or other law of this state, or issued by any public housing authority or agency of the United States, and secured by a pledge of annual contributions to be paid by the United States government or any agency thereof, shall constitute:

1. Authorized security for the deposit of public monies.

2. Authorized security for use in compliance with any law requiring deposits of securities to be made with any public agency.

3. Legal investments for monies subject to investment, held by or under the control of any officer or public body of the state or of any political subdivision or municipal corporation.

4. Legal investments for the sinking funds, trust funds or other monies belonging to or under the control of:

(a) Banks, savings banks and other persons carrying on a banking business.

(b) Insurance companies and other persons carrying on an insurance business.

(c) Executors, administrators, guardians, trustees or other fiduciaries.

B. This article does not relieve any public officer, corporation, fiduciary or other person from the duty of exercising reasonable care in the selection of securities.

§ 36-1416 Remedies of obligee

An obligee of a city, town or county, in addition to all other rights which may be conferred on him, and subject only to contractual restrictions binding on that person, may:

1. By mandamus, or an action or proceeding at law or in equity, compel the public housing authority, city, town or county and its officers, agents or employees to perform each and every term, provision and covenant contained in any contract of the public housing authority, city, town or county with or for the benefit of the obligee and require the carrying out of any or all such covenants and agreements of the public housing authority, city, town or county and the fulfillment of all duties imposed on the public housing authority, city, town or county by this article.

2. By an action or proceeding in equity, enjoin any acts or things which are unlawful or in violation of any of the rights of the obligee of the public housing authority, city, town or county.

§ 36-1417 Power of public body to provide additional remedies to obligee

A public housing authority, city, town or county may by resolution, trust indenture, lease or other contract confer on any obligee holding or representing a specified amount in bonds, or holding a lease, the right, in addition to all rights that may otherwise be conferred on the happening of an event of default as defined in the resolution or instrument, by an action or proceeding in any court of competent jurisdiction:

1. To cause possession of any housing project or any part of a housing project to be surrendered to any such obligee, which possession may be retained by the bondholder or trustee as long as the public housing authority, city, town or county continues in default.

2. To obtain the appointment of a receiver of any housing project of the public housing authority, city, town or county, or any part of a housing project, and of the rents and profits from the housing project. If a receiver is appointed, the receiver may enter and take possession of the housing project or any part of the housing project and, as long as the public housing authority, city, town or county continues to default, operate and maintain it and collect and receive all fees, rents, revenues or other charges thereafter arising from the housing project and shall keep the monies in a separate account or accounts and apply them in accordance with the obligations of the public housing authority, city, town or county as the court directs.

3. To require the public housing authority, city, town or county and its officers and agents to account as if it and they were the trustees of an express trust.

§ 36-1418 Property exempt from execution sale

A. All real property owned or held by a public housing authority, city, town or county for the purposes of this article are exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against it nor shall any judgment against a public housing authority, city, town or county be a charge or lien on such real property.

B. This section does not apply to or limit the right of obligees to pursue any remedies for the enforcement of any pledge or lien given to them on rents, fees or revenues.

§ 36-1419 Payments in lieu of taxes authorized

A. When a housing project is owned and administered by a housing authority under this article, the housing authority and the city, town or county in which the project is located may agree upon payments to be made in lieu of taxes.

B. Taxing authorities are authorized and directed to accept such payments and funds so collected in the same manner as other taxes are collected.

§ 36-1420 Acceptance of federal aid

A. In addition to the powers conferred on a political subdivision of this state by other provisions of this article, a public housing authority, city, town or county may borrow money or accept contributions, grants or other financial assistance from the federal government for or in aid of any housing project within its area of operation, and, to these ends, comply with such conditions, trust indentures, leases or agreements as are necessary, convenient or desirable.

B. This article authorizes every public housing authority, city, town or county to do all things that are consistent with this article and that are or may be necessary, convenient or desirable to secure the financial aid or cooperation of the federal government in the undertaking, acquisition, construction, maintenance or operation of any housing project of the public housing authority, city, town or county.

§ 36-1421 Cooperation of state public body with housing project

A. For the purpose of aiding and cooperating in planning, undertaking, constructing or operating housing projects located within the area in which it is authorized to act, any state public body, with or without consideration and upon such terms as it determines, may:

1. Dedicate, sell, convey or lease any of its interest in any property or grant easements, licenses or any other rights or privileges therein to any public housing authority, city, town or county or to the federal government.

2. Cause parks, playgrounds, recreational, community, educational, water, sewer or drainage facilities, or any other works which it is otherwise empowered to undertake to be furnished adjacent to or in connection with housing projects.

3. Furnish, dedicate, close, pave, install, grade, regrade, plan or replan streets, roads, roadways, alleys, sidewalks or other places which it is otherwise empowered to undertake.

4. Cause services to be furnished for housing projects of the character which such state public body is otherwise empowered to furnish.

5. Enter into agreements with respect to the exercise by the state public body of its powers relating to the repair, elimination or closing of unsafe, unsanitary or unfit dwellings.

6. Do any and all things necessary or convenient to aid and cooperate in the planning, undertaking, construction or operation of such housing projects.

7. Incur the entire expense of any public improvements made by the state public body in exercising the powers granted by this article.

8. Enter into agreements, which may extend over any period, any provision or rule of law to the contrary notwithstanding, with any public housing authority, city, town or county or authority as agent, respecting action to be taken by the state public body pursuant to any of the powers granted by this article.

B. Notwithstanding any law to the contrary, a sale, conveyance, lease or agreement provided for by this section may be made by a state public body without appraisal, public notice, advertisement or public bidding.

§ 36-1422 Cooperative agreements between municipalities

Two or more cities, towns or counties, acting directly, or pursuant to this article through their public housing authorities, may join or cooperate in the exercise, jointly or otherwise, of any or all of their powers under this article for the purpose of financing, planning, owning, constructing, operating or contracting with respect to a housing project located within the area of operation of one or more of the public housing authorities, cities, towns or counties. For such purpose the governing body of a public housing authority, city, town or county may authorize one or more of the public housing authorities, cities, towns or counties so joining or cooperating with it to act in its behalf with respect to any or all of such powers.

§ 36-1423 Bids required for construction and purchases

All items of construction and all purchases of furnishings and equipment made under this article shall be by contract after call for bids.

§ 36-1424 Supplemental nature of article

The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law.

§ 36-1425 Inconsistencies of article with other law

Insofar as the provisions of this article are inconsistent with the provisions of any other law, the provisions of this article shall be controlling.

Article 3 Slum Clearance and Redevelopment

§ 36-1471 Definitions

In this article, unless the context otherwise requires:

1. "Area of operation" means the area within the territorial boundaries of the municipality.

2. "Blighted area" means an area, other than a slum area, where sound municipal growth and the provision of housing accommodations is substantially retarded or arrested in a predominance of the properties by any of the following:

(a) A dominance of defective or inadequate street layout.

(b) Faulty lot layout in relation to size, adequacy, accessibility or usefulness.

(c) Unsanitary or unsafe conditions.

(d) Deterioration of site or other improvements.

(e) Diversity of ownership.

(f) Tax or special assessment delinquency exceeding the fair value of the land.

(g) Defective or unusual conditions of title.

(h) Improper or obsolete subdivision platting.

(i) The existence of conditions that endanger life or property by fire and other causes.

3. "Bonds" means any bonds, including refunding bonds, notes, interim certificates, debentures or other obligations.

4. "Clerk" means the clerk or other official of the municipality who is the custodian of the official records of the municipality.

5. "Commission" or "slum clearance and redevelopment commission" means an agency of a municipality created pursuant to section 36-1476.

6. "Federal government" includes the United States or any agency or instrumentality, corporate or otherwise, of the United States.

7. "Local governing body" means the council or other legislative body charged with governing the municipality.

8. "Mayor" means the mayor of a municipality or other officer or body having the duties customarily imposed upon the executive head of a municipality.

9. "Municipality" means any incorporated city or town in the state.

10. "Obligee" includes any bondholder, agents or trustees for any bondholders, or lessor demising to the municipality property used in connection with a redevelopment project, or any assignee or assignees of a lessor's interest or any part thereof, and the federal government when it is a party to any contract with the municipality.

11. "Person" means any individual, firm, partnership, corporation, company association, joint stock association or body politic, and includes any trustee, receiver, assignee or other similar representative thereof.

12. "Public body" means the state or any municipality, county, village, board, commission, authority, district or any other subdivision or public body of the state.

13. "Real property" includes all lands, including improvements and fixtures on the land, and property of any nature appurtenant to the land, or used in connection with the land, and every estate, interest and right, legal or equitable therein, including terms for years and liens by way of judgment, mortgage or otherwise and the indebtedness secured by the liens.

14. "Redeveloper" means any person, partnership or public or private corporation or agency which enters or proposes to enter into a redevelopment contract.

15. "Redevelopment contract" means a contract entered into between a municipality and a redeveloper for the redevelopment of an area in conformity with a redevelopment plan.

16. "Redevelopment plan" means a plan, other than a preliminary or tentative plan, for the acquisition, clearance, reconstruction, rehabilitation or future use of a redevelopment project area.

17. "Redevelopment project":

(a) Means any work or undertaking:

(i) To acquire slum or blighted areas or portions of these areas and lands, structures or improvements, the acquisition of which is necessary or incidental to the proper clearance or redevelopment of these areas or to the prevention of the spread or recurrence of slum conditions or conditions of blight in the area.

(ii) To clear any areas by demolition or removal of existing buildings, structures, streets, utilities or other improvements thereon and to install, construct or reconstruct streets, utilities and site improvements essential to the preparation of sites for uses in accordance with a redevelopment plan.

(iii) To sell, lease or otherwise make available land in areas for residential, recreational, commercial, industrial or other use or for public use or to retain land for public use, in accordance with a redevelopment plan.

(b) Includes the preparation of a redevelopment plan, the planning, surveying and other work incident to a redevelopment project and the preparation of all plans and arrangements for carrying out a redevelopment project.

18. "Slum area" means an area in which both of the following are true:

(a) There is a predominance of buildings or improvements, whether residential or nonresidential.

(b) The public health, safety or welfare is threatened because of any of the following:

(i) Dilapidated, deteriorated, aging or obsolescent buildings or improvements.

(ii) The inadequate provision for ventilation, light, air, sanitation or open spaces.

(iii) Overcrowding.

(iv) The existence of conditions that endanger life or property by fire and other causes.

§ 36-1472 Legislative finding and declaration of necessity

It is declared:

1. That there exist in municipalities of the state slum or blighted areas which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and welfare of the residents of the state.

2. That the existence of these areas contributes substantially and increasingly to the spread of disease and crime, necessitating excessive and disproportionate expenditures of public funds for the preservation of the public health and safety, for crime prevention, correction, prosecution, punishment and the treatment of juvenile delinquency and for the maintenance of adequate police, fire and accident protection and other public services and facilities, constitutes an economic and social liability, substantially impairs or arrests the sound growth of municipalities and retards the provision of housing accommodations.

3. That this menace is beyond remedy and control solely by regulatory process in the exercise of the police power and cannot be dealt with effectively by the ordinary operations of private enterprise without the aids provided by this article.

4. That the acquisition of property for the purpose of eliminating the conditions or preventing recurrence of these conditions in the area, the removal of structures and improvement of sites, the disposition of the property for redevelopment and any assistance which may be given by any public body in connection with these activities are public uses and purposes for which public money may be expended and the power of eminent domain exercised.

5. That the necessity in the public interest for the provisions of this article is declared as a matter of legislative determination.

§ 36-1473 Finding of necessity by local governing body

A. A municipality shall not exercise any of the powers conferred on municipalities by this article until its local governing body adopts a resolution by a two-thirds vote finding both of the following:

1. One or more slum or blighted areas exist in the municipality.

2. The redevelopment of that area or areas is necessary in the interest of the public health, safety, morals or welfare of the residents of the municipality.

B. A municipality must notify the owner of real property that is within the boundaries of a proposed redevelopment area of the time, date and location of a public meeting concerning the findings. The municipality must provide this notice by first class mail to the address stated on the most recent records of the county assessor.

§ 36-1474 Powers of municipalities

A. Every municipality shall have all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this article, including the following powers in addition to others granted by this article:

1. To prepare or cause to be prepared redevelopment plans and to undertake and carry out redevelopment projects within its area of operation.

2. To arrange or contract for the furnishing or repair, by any person or agency, public or private, of services, privileges, works, streets, roads, public utilities or other facilities for or in connection with a redevelopment project, and anything to the contrary contained in this article or any other provision of law notwithstanding, to agree to any conditions that it deems reasonable and appropriate attached to federal financial assistance and imposed pursuant to federal law relating to the determination of prevailing salaries or wages or compliance with labor standards, in the undertaking or carrying out of a redevelopment project, and to include in any contract let in connection with a redevelopment project, provisions to fulfill the conditions as it deems reasonable and appropriate.

3. Within its area of operation:

(a) To purchase, lease, obtain options on, acquire by gift, grant, bequest, devise, eminent domain or otherwise, any real or personal property or any interest in the property, together with any improvements on the property, necessary or incidental to a redevelopment project.

(b) To hold, improve, clear or prepare for redevelopment any such property.

(c) To sell, lease, exchange, transfer, assign, subdivide, retain for its own use, mortgage, pledge, hypothecate or otherwise encumber or dispose of any real or personal property or any interest in the property in a redevelopment project.

(d) To enter into contracts with redevelopers of property containing covenants, restrictions and conditions regarding the use of the property for residential, commercial, industrial, recreational or other purposes or for public purposes in accordance with a redevelopment plan and the other covenants, restrictions and conditions as the municipality deems necessary to prevent a recurrence of conditions that qualify an area as a slum or blighted area or to effectuate the purposes of this article. A municipality may not exercise the power of eminent domain unless the municipality makes a separate determination by a two-thirds vote of the local governing body that the property is critical to the project and the existing use of the property is not compatible with the proposed use and cannot be incorporated into or excluded from the proposed redevelopment project.

(e) To make any of the covenants, restrictions or conditions of the foregoing contracts covenants running with the land and to provide appropriate remedies for any breach of these covenants or conditions, including the right in the municipality to terminate these contracts and any interest in the property created pursuant thereto.

(f) To borrow money and issue bonds and provide security for loans or bonds.

(g) To insure or provide for the insurance of any real or personal property or operations of the municipality in a redevelopment project of the municipality against any risks or hazards, including the power to pay premiums on the insurance.

(h) To enter into any contracts necessary to effectuate the purposes of this article.

No statutory provision with respect to the acquisition, clearance or disposition of property by public bodies shall restrict a municipality in these functions with respect to a redevelopment project, unless the legislature specifically so states.

4. To invest any redevelopment project funds held in reserves or sinking funds or any redevelopment project funds not required for immediate disbursement, in property or securities in which savings banks may legally invest funds subject to their control and to redeem the bonds that have been issued pursuant to section 36-1481 at the redemption price established therein or to purchase the bonds at less than redemption price, all bonds so redeemed or purchased to be cancelled.

5. To borrow money and to apply for and accept advances, loans, grants, contributions and any other form of financial assistance from the federal government, the state, county or other public body or from any sources, public or private, for the purposes of this article, to give such security as may be required and to enter into and carry out contracts in connection therewith. Notwithstanding any other law, a municipality may include in any contract for financial assistance with the federal government for a redevelopment project conditions imposed pursuant to federal law that the municipality deems reasonable and appropriate and that are not inconsistent with the purposes of this article.

6. Within its area of operation, to make or have made all surveys, appraisals, studies and plans, including the preparation of a general plan for the development of the municipality, necessary to carry out the purposes of this article and to contract or cooperate with any and all persons or agencies, public or private, to make and to carry out the surveys, appraisals, studies and plans.

7. To prepare plans and provide reasonable assistance for the relocation of families displaced from a redevelopment project area to the extent essential for acquiring possession of and clearing the area or parts of the area to permit the carrying out of the redevelopment project.

8. To appropriate funds and make expenditures necessary to carry out the purposes of this article and to make expenditures from funds obtained from the federal government without regard to any other laws pertaining to the making and approval of appropriations and expenditures.

9. To exercise all or any part or combination of powers granted by this section.

B. A municipality must notify each owner of real property located within the boundaries of a proposed redevelopment project area of the time, date and location of a public meeting concerning the proposed adoption of the redevelopment plan if the municipality intends to acquire that owner's property or any interest in that property. The municipality must provide this notice by first class mail to the address stated on the most recent records of the county assessor.

C. The designation of an area as a slum or blighted area terminates ten years after this designation unless substantial action has been taken to remove the slum or blighted conditions. The termination does not affect existing projects as described in section 35-701, paragraph 7, subdivision (a), item (xi) that are within that designated area.

§ 36-1475 Delegation of powers of municipalities

In undertaking redevelopment projects under this article, every municipality, by resolution of its governing body, may delegate to the slum clearance and redevelopment commission of the municipality, if any, created by it pursuant to section 36-1476, as an agent of the municipality any or all of the powers conferred upon municipalities by this article except the power to borrow money, issue bonds, acquire and dispose of real property, enter into contracts with the federal government or any public body, prepare a general plan for the development of the municipality or approve redevelopment plans.

§ 36-1476 Slum clearance and redevelopment commission

A. In addition to the other powers conferred by this article a municipality by resolution of its governing body may create a slum clearance and redevelopment commission, which shall be an agent of the municipality for the exercise of powers of the municipality under this article.

B. If the governing body of a municipality adopts a resolution as described in subsection A of this section, the mayor, by and with the advice and consent of the governing body, shall appoint a board of commissioners for the slum clearance and redevelopment commission, which shall consist of five commissioners. Three of the commissioners first appointed pursuant to this article shall be designated to serve for terms of one, two and three years respectively and two commissioners shall be appointed for four years each, from the date of their appointment. After the initial appointment of commissioners, members of the commission shall be appointed for a term of office of four years, except that all vacancies shall be filled for the unexpired term.

C. A commissioner is not eligible to receive compensation but is eligible to receive reimbursement of expenses. Each commissioner shall hold office until a successor has been appointed and has qualified. A certificate of the appointment or reappointment of any commissioner shall be filed with the clerk of the municipality and is conclusive evidence of the due and proper appointment.

D. The powers delegated by a municipality to a slum clearance and redevelopment commission shall be exercised by the commissioners. A majority of the commissioners constitutes a quorum for the purpose of conducting business and exercising the powers of the commission and for all other purposes. Action may be taken by the commission upon a vote of a majority of the commissioners present. Any person may be appointed as a commissioner if the person resides within the area of operation of the commission and is otherwise eligible under this article.

E. The mayor shall designate a chairman and vice-chairman from among the commissioners. A commission may be authorized by the local governing body to employ an executive director, technical experts and other officers, agents and employees, permanent and temporary, as it requires and to determine their qualifications, duties and compensation. For legal services a commission may, with approval of the mayor, call upon the chief law officer of the municipality or it may be authorized by the local governing body to employ its own counsel and legal staff. A commission shall file a report of its activities with the local governing body periodically as the local governing body requires, but at least once a year, and shall make recommendations regarding additional legislation or other action that may be necessary to enable it to carry out the purposes of this article.

F. For inefficiency or neglect of duty or misconduct in office, a commissioner may be removed by the mayor, but a commissioner shall be removed only after a hearing and after the commissioner has been given a copy of the charges at least ten days prior to the hearing and had an opportunity to be heard in person or by counsel.

§ 36-1477 Interest of public officials, commissioners or employees in project prohibited

A. A public official of a municipality, commissioner or employee of a housing authority or slum clearance and redevelopment commission to which the powers of a municipality have been delegated pursuant to this article shall not voluntarily acquire any interest, direct or indirect, in a redevelopment project or in any property included or planned to be included in a redevelopment project of the municipality or in any contract or proposed contract in connection with a redevelopment project. If an acquisition is not voluntary, the interest acquired shall be immediately disclosed in writing to the local governing body and the disclosure shall be entered upon the minutes of the governing body.

B. If any official, commissioner or employee presently owns or controls, or owned or controlled within the preceding two years, any interest, direct or indirect, in any property which the person knows is included or planned by the municipality to be included in any redevelopment project, the person shall immediately disclose this fact in writing to the local governing body, and this disclosure shall be entered upon the minutes of the governing body. The person shall not participate in any action by the municipality, housing authority or commission affecting the property. Any violation of this section shall constitute misconduct in office.

§ 36-1478 Eminent domain

A. A municipality may acquire by condemnation any interest in real property, including a fee simple title to that real property, that it deems necessary for or in connection with a redevelopment project under this article, after the adoption by the local governing body of a resolution declaring that the acquisition of the real property described in that resolution is necessary for those purposes.

B. Before a municipality may initiate a condemnation action it must make a good faith effort to negotiate the purchase of the property. If the municipality determines that it cannot acquire the property without the use of a condemnation action it must notify the property owner of the time, date and location of the public meeting concerning the municipality's proposed action. The municipality must provide this notice by certified mail to the property owner's address as stated on the most recent records of the county assessor.

C. The governing body of a municipality must authorize the condemnation of real property by a vote of at least two-thirds of its members.

D. A municipality may exercise the power of eminent domain in the manner provided in articles 2 or 3 of chapter 8, title 12, or in the manner provided by any other applicable statutory provisions for the exercise of the power of eminent domain.

E. Property already devoted to a public use may be acquired in like manner, but real property belonging to this state or any political subdivision of this state shall not be acquired without its consent.

§ 36-1479 Preparation and approval of redevelopment plans

A. A municipality shall not prepare a redevelopment plan for a redevelopment project area unless the local governing body, by resolution, has declared the area to be a slum or blighted area in need of redevelopment. The local governing body shall not consider a redevelopment plan for approval until a general plan for the development of the municipality has been prepared. A municipality shall not acquire real property for a redevelopment project unless the local governing body has approved the redevelopment plan, as prescribed in subsection F.

B. The municipality may itself prepare or cause to be prepared a redevelopment plan or any person or agency, public or private, may submit a plan to a municipality. A redevelopment plan shall be sufficiently complete to indicate its relationship to definite local objectives as to appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities and other public improvements and the proposed land uses and building requirements in the redevelopment project area. The plan shall include, at a minimum:

1. A statement of the boundaries of the redevelopment project area.

2. A map showing the existing uses and conditions of the real property within the redevelopment project area.

3. A land use plan showing proposed uses of the real property within the redevelopment project area.

4. Information showing the standards of population densities, land coverage and building intensities in the area after redevelopment.

5. A statement of the proposed changes, if any, in zoning ordinances or maps, street layouts, street levels or grades, building codes and ordinances.

6. A statement as to the kind and number of site improvements and additional public utilities which will be required to support the new land uses in the area after redevelopment.

7. A statement of the proposed method and estimated cost of the acquisition and preparation for redevelopment of the redevelopment project area and the estimated proceeds or revenues from its disposal to redevelopers.

8. A statement of the proposed method of financing the redevelopment project.

9. A statement of a feasible method proposed for the relocation of families to be displaced from the redevelopment project area.

C. The land uses and building requirements proposed in a redevelopment plan shall be designed with the general purpose of accomplishing, in conformance with the general plan, a coordinated, adjusted and harmonious development of the municipality and its environs which will, in accordance with present and future needs, promote health, safety, morals, order, convenience, prosperity and the general welfare, as well as efficiency and economy in the process of development, and including, among other things, adequate provision for traffic, vehicular parking, the promotion of safety from fire, panic and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the provision of adequate transportation, water, sewerage and other public utilities, schools, parks, recreational and community facilities and other public requirements, the promotion of sound design and arrangement, the wise and efficient expenditure of public funds, the prevention of the recurrence of slum conditions or conditions of blight and the provision of adequate, safe and sanitary dwelling accommodations.

D. Prior to its approval of a redevelopment plan, the local governing body shall submit a redevelopment plan to the planning commission of the municipality, if any, for review and recommendations as to its conformity with the general plan for the development of the municipality as a whole. The planning commission shall submit its written recommendations with respect to the proposed redevelopment plan to the local governing body within thirty days after receipt of the plan for review. Upon receipt of the recommendations of the planning commission or, if no recommendations are received within thirty days, the local governing body may proceed with the hearing on the proposed redevelopment plan prescribed by subsection E.

E. The local governing body shall hold a public hearing on any redevelopment plan or substantial modification to a plan being considered for approval. A municipality must notify each owner of real property located within the boundaries of a proposed redevelopment plan area of the time, date and location of a public meeting concerning the proposed adoption of the redevelopment plan. The municipality must provide this notice by first class mail to the address stated on the most recent records of the county assessor. The local governing body shall publish a public notice in a newspaper with a general circulation in the area of operation, once each week for two consecutive weeks, the last publication to be at least ten days prior to the date set for hearing. The notice shall describe the time, place and purpose of the hearing and shall also generally identify the area to be redeveloped under the plan. All interested parties shall be afforded a reasonable opportunity to express their views respecting the proposed redevelopment plan at the hearing.

F. Approval of a redevelopment plan requires a two-thirds vote of the local governing body.

G. Following the hearing, the local governing body may approve a redevelopment plan if it finds that the plan is feasible and in conformity with the general plan for the development of the municipality as a whole, but if the redevelopment project area is a blighted area, the local governing body must also find that:

1. A shortage of housing of sound standards and design, adequate for family life, exists in the municipality.

2. The need for housing accommodations has been or will be increased as a result of the clearance of slums in other areas under redevelopment.

3. The conditions of blight in the area and the shortage of decent, safe and sanitary housing cause or contribute to an increase in and spread of disease and crime and constitute a menace to the public health, safety, morals or welfare.

4. The development of the area for predominately residential uses is an integral part of and essential to the program of the municipality for the elimination of the slum or blighted area.

H. A redevelopment plan may be modified at any time, but if modified after the lease or sale of real property in the redevelopment project area, the modification shall be consented to by the redeveloper or redevelopers of real property or a successor or their successors in interest affected by the proposed modification. Any proposed modification which will substantially change the redevelopment plan as previously approved by the local governing body shall be considered a new plan and shall be subject to all the requirements of this section before it may be approved.

§ 36-1480 Disposal of property in redevelopment project area

A. A municipality may sell, lease, exchange or otherwise transfer real property or any interest in the property in a redevelopment project area to any redeveloper for residential, recreational, commercial, industrial or other uses or for public use in accordance with the redevelopment plan, subject to covenants, conditions and restrictions as it deems to be in the public interest or to carry out the purposes of this article. The sale, lease, exchange or other transfer, and any related agreement may be made only after, or subject to, the approval of the redevelopment plan by the local governing body. Real property shall be sold, leased or transferred at its fair value for uses in accordance with the redevelopment plan even though the fair value may be less than the cost of acquiring and preparing the property for redevelopment. In determining the fair value of real property for uses in accordance with the redevelopment plan, a municipality shall take into account and give consideration to the uses and purposes required by the plan, the restrictions upon, and the covenants, conditions and obligations assumed by the redeveloper of the property, the objectives of the redevelopment plan for the prevention of the recurrence of slum or blighted areas, and other matters the municipality specifies as being appropriate.

B. Sale, lease, exchange or other transfer of real property or any interest of the property shall not be made until after public advertising for bids has been made for at least thirty days in a newspaper of general circulation within the municipality and the posting of notices in three or more public places within the municipality. If there is no newspaper within the corporate limits of the municipality, the municipality shall post in three or more public places within the municipality, notices for bidders for the property proposed to be sold.

C. Prior to the consideration of any redevelopment contract proposal, the municipality shall publish the notice at least once a week for two consecutive weeks in a newspaper having a general circulation in the area of operation, invite proposals from and make all pertinent information available to, private redevelopers or any persons interested in carrying out the redevelopment of a slum or blighted area, or any part of a slum or blighted area, which the local governing body has declared to be in need of redevelopment. The notice shall identify the slum or blighted area, and shall state where any further information available may be obtained. The municipality shall consider all redevelopment proposals and the financial, technical and legal ability of the prospective redevelopers to carry out their proposals and may negotiate with any redevelopers for proposals for the purchase or lease of any real property in the redevelopment project area. The municipality, with the approval of the local governing body, may accept redevelopment contract proposals it deems to be in the public interest and in furtherance of the purposes of this article and may execute the redevelopment contracts in accordance with the provisions of subsection A and deliver deeds, leases and other instruments and take all steps necessary to effectuate the redevelopment contracts. In its discretion, the municipality may, without regard to the provisions of this subsection, dispose of real property in a redevelopment project area to private redevelopers for redevelopment under the reasonable competitive bidding procedures as it prescribes, subject to the provisions of subsection A.

D. A municipality may temporarily operate and maintain real property in a redevelopment project area pending the disposition of the property for redevelopment, without regard to the provisions of subsections A, B and C, for uses and purposes deemed desirable even though not in conformity with the redevelopment plan. If the real property is not disposed of for redevelopment within one year, the municipality, immediately upon expiration of the one year period, shall remove or demolish all buildings thereon.

§ 36-1481 Issuance of bonds

A. A municipality may issue bonds in its discretion to finance the undertaking of any redevelopment project under this article, including the payment of principal and interest upon any advances for surveys and plans for redevelopment projects, and may also issue refunding bonds for the payment or retirement of such bonds previously issued by it. Such bonds shall be made payable, as to both principal and interest, solely from the income, proceeds, revenues and funds of the municipality derived from or held in connection with its undertaking and carrying out of redevelopment projects under this article, whether or not they are financed in whole or in part with the proceeds of such bonds, but payment of such bonds, both as to principal and interest, may be further or exclusively secured by a pledge of any loan, grant or contribution from the federal government or other source, in aid of any redevelopment projects of the municipality undertaken under this article and by a mortgage of any of such redevelopment projects.

B. The bonds and other obligations of the municipality issued pursuant to subsection A of this section are not a general obligation or general debt of the municipality, the state or any of its political subdivisions, and neither the municipality, the state, nor any of its political subdivisions are generally liable for them, nor in any event shall the bonds or obligations give rise to a general obligation or liability of the municipality, the state or any of its political subdivisions, or a charge against their general credit or taxing powers, or be payable from any funds or properties other than those funds or properties specifically described in subsection A of this section and those bonds and obligations shall so state on their face. Bonds issued under this section shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. Bonds issued under the provisions of this article are declared to be issued for an essential public and governmental purpose, and together with interest thereon and income therefrom, shall be exempted from all taxes.

C. Bonds issued under this section shall be authorized by resolution of the local governing body, may be issued in one or more series, shall bear such date or dates, be payable upon demand or mature at such time or times, bear interest at such rate or rates, be in such denomination or denominations, be in such form either coupon or registered, carry such conversion or registration privileges, have such rank or priority, be executed in such manner, be payable in such medium of payment, at such place or places, and be subject to such terms of redemption, with or without premium, as provided by the resolution or trust indenture or mortgage issued pursuant thereto.

D. Such bonds or any bonds issued to refund such bonds may be sold at public or private sale at such price or prices as may be determined by the local governing body or may be exchanged for other bonds on the basis of par. If sold at public sale, notice shall be published once at least ten days prior to the sale in a newspaper having a general circulation in the area of operation and in such other medium of publication as the municipality determines.

E. If any of the public officials of the municipality whose signatures appear on any bonds or coupons issued under this article cease to be such officials before delivery of the bonds, their signatures shall nevertheless be valid and sufficient for all purposes the same as if the officials had remained in office until delivery. Any provision of law to the contrary notwithstanding, bonds issued pursuant to this article shall be fully negotiable.

F. In any action or proceedings involving the validity or enforceability of any bond issued under this article or the security for such bond, the recitation in substance in the bond that it has been issued by the municipality in connection with a redevelopment project shall be conclusive proof that the bond was issued for such purpose and such project shall be conclusively deemed to have been planned, located and carried out in accordance with the purposes and provisions of this article.

G. Neither the members of the governing body of a municipality or a commission nor any persons executing the bonds are liable personally on the bonds by reason of their issuance.

§ 36-1482 Power of municipality to provide additional security for bonds

A. In connection with the issuance of bonds pursuant to section 36-1481, or the incurring of obligations under leases, and in order to secure the payment of such bonds or obligations, a municipality, in addition to its other powers, may:

1. Prescribe the procedure, if any, by which the terms of any contract with bondholders may be amended or abrogated, the amount of bonds the holders of which shall consent thereto and the manner in which such consent may be given.

2. Vest in any obligees the right to enforce the payment of such bonds or any covenants securing or relating to the bonds.

3. Vest in any obligee or obligees holding a specified amount in such bonds the right, in the event of a default, to take possession of and use, operate and manage any redevelopment project or any part thereof, title to which is in the municipality, or any funds connected therewith, and to collect the rents and revenues arising therefrom and to dispose of such monies in accordance with the agreement of the municipality with such obligees.

4. Provide for the powers and duties of such obligees and limit the liabilities thereof.

5. Provide the terms and conditions upon which such obligees may enforce any covenant or rights securing or relating to the bonds.

6. Exercise all or any part or combination of the powers granted by this subsection.

7. Make such covenants and do any and all such acts and things necessary, convenient or desirable in order to secure its bonds, or, in the absolute discretion of the municipality, as will tend to make the bonds more marketable even if such covenants, acts or things are not enumerated in this section.

B. A municipality may by its resolution, trust indenture, mortgage, lease or other contract confer upon any obligee holding or representing a specified amount in bonds issued pursuant to section 36-1481, the right, in addition to all rights that may otherwise be conferred, upon the happening of an event of default as defined in such resolution or instrument, by an action or proceeding in any court of competent jurisdiction:

1. To require the municipality and the officials, agents and employees thereof to account as if it and they were the trustees of an express trust, and

2. To obtain the appointment of a receiver of any redevelopment project of the municipality or any part thereof, title to which is in the municipality, and of the rents and profits therefrom.

C. If such receiver is appointed, he may enter and take possession of, carry out, operate and maintain the project or any part thereof and collect and receive all fees, rents, revenues or other charges thereafter arising therefrom, and shall keep such monies in a separate account or accounts and apply them in accordance with the obligations of the municipality as the court directs.

§ 36-1483 Construction of bond provisions

This article, without reference to other statutes of the state, shall constitute full authority for the authorization and issuance of bonds under section 36-1481. Notwithstanding any other law to the contrary, bonds authorized under section 36-1481 shall not be subject to the provisions of any other law or charter relating to the issuance or sale of bonds.

§ 36-1484 Certification of bonds by attorney general

A. Any bonds to be issued under section 36-1481 may be submitted to the attorney general of the state after all proceedings for issuance of the bonds have been taken. Upon submission of the proceedings to the attorney general, he shall examine into and pass upon the validity of the bonds and the regularity of all proceedings in connection therewith.

B. If the proceedings conform to the provisions of this article and are otherwise regular in form, and if the bonds when delivered and paid for will constitute binding and legal obligations enforceable according to the terms thereof, the attorney general shall certify in substance upon the back of each of the bonds that it is issued in accordance with the constitution and laws of the state.

§ 36-1485 Remedies of obligee

An obligee of a municipality exercising its powers under this article may, in addition to all other rights which may be conferred on such obligee, subject only to any contractual restrictions binding upon such obligee:

1. By mandamus, or an action or proceeding at law or in equity, compel the municipality and the officials, agents or employees thereof to perform each and every term, provision and covenant contained in any contract of the municipality with or for the benefit of the obligee, and require the carrying out of any or all such covenants and agreements of the municipality and the fulfillment of all duties imposed upon the municipality by this article.

2. By an action or proceeding in equity, enjoin any acts or things which are unlawful or in violation of any of the rights of the obligee of the municipality.

§ 36-1486 Property exempt from execution sale

All property of a municipality, including funds, owned or held by it for the purposes of this article shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against it nor shall judgment against a municipality be a charge or lien upon such property, but the provisions of this section shall not apply to or limit the right of obligees to pursue any remedies for the enforcement of any pledge or lien given by a municipality on its rents, fees, grants or revenues from redevelopment projects.

§ 36-1487 Cooperation by public bodies

A. For the purpose of aiding in the planning, undertaking or carrying out of a redevelopment project located within the area in which it is authorized to act, any public body may, upon such terms, with or without consideration, as it determines:

1. Dedicate, sell, convey or lease any of its interest in any property, or grant easements, licenses or other rights or privileges therein to a municipality.

2. Incur the entire expense of any public improvements made by such public body in exercising the powers granted by this section.

3. Do any and all things necessary to aid or cooperate in the planning or carrying out of a redevelopment plan.

4. Lend, grant or contribute funds to a municipality.

5. Employ any funds belonging to such public body or within its control, including funds derived from the sale or furnishing of property, service or facilities to a municipality, in the purchase of the bonds or other obligations of a municipality issued pursuant to section 36-1481.

6. Enter into agreements, which may extend over any period, any provision or rule of law to the contrary notwithstanding, with a municipality respecting action to be taken by such public body pursuant to any of the powers granted by this article.

7. Where otherwise authorized to perform functions of a similar character:

(a) Cause parks, playgrounds, recreational, water, sewer or drainage facilities, or any other works to be furnished.

(b) Furnish, dedicate, close, vacate, pave, install, grade, regrade, plan or replan streets, roads, sidewalks, ways or other places.

(c) Plan or replan, zone or rezone any part of the public body or make exceptions from building regulations.

(d) Cause administrative and other services to be furnished to the municipality.

B. If at any time title to or possession of any redevelopment project is held by a public body or governmental agency other than the municipality which is authorized by law to engage in the undertaking, carrying out or administration of redevelopment projects, including any agency or instrumentality of the United States, the provisions of the agreements referred to in this section shall inure to the benefit of and may be enforced by such public body or governmental agency.

C. Any sale, conveyance, lease or agreement provided for in this section may be made by a public body without appraisal, public notice, advertisement or public bidding.

§ 36-1488 Use of municipal revenue powers to provide funds for project

Every municipality may use its funds for the purposes of aiding in the planning, undertaking or carrying out of a redevelopment project in its area of operation. To obtain funds for this purpose, every municipality may, in addition to other powers set forth in this article, levy taxes, incur indebtedness and issue bonds in amounts the local governing body determines by resolution necessary for the purpose of raising funds for use in connection with a redevelopment project. Any bonds to be issued by the municipality pursuant to this section shall be issued in the manner and within the limitations prescribed by the laws of the state for the issuance and authorization of bonds for public purposes generally.

§ 36-1489 Validity of title received by purchaser of project property

Any instrument executed by a municipality and purporting to convey any right, title or interest in any property under this article shall be conclusively presumed to have been executed in compliance with the provisions of this article insofar as title or other interest of any bona fide purchasers, lessees or transferees of such property is concerned.

§ 36-1490 Supplemental nature of article

The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law.

§ 36-1491 Inconsistencies of article with other law

Insofar as the provisions of this article are inconsistent with the provisions of any other law, the provisions of this article shall be controlling.

Chapter 13 Safety

Article 1 Fireworks

§ 36-1601 Definitions

In this article, unless the context otherwise requires:

1. "APA 87-1" means the American pyrotechnics association standard 87-1, standard for construction and approval for transportation of fireworks, novelties and theatrical pyrotechnics, December 1, 2001 version.

2. "Consumer firework" means small firework devices that contain restricted amounts of pyrotechnic composition designed primarily to produce visible or audible effects by combustion and that comply with the construction, chemical composition and labeling regulations prescribed in 49 Code of Federal Regulations parts 172 and 173, regulations of the United States consumer product safety commission as prescribed in 16 Code of Federal Regulations parts 1500 and 1507 and the APA 87-1.

3. "Display firework" means large firework devices that are explosive materials intended for use in fireworks displays and designed to produce visible or audible effects by combustion, deflagration or detonation as prescribed by 49 Code of Federal Regulations part 172, regulations of the United States consumer product safety commission as prescribed in 16 Code of Federal Regulations parts 1500 and 1507 and the APA 87-1.

4. "Fireworks":

(a) Means any combustible or explosive composition, substance or combination of substances, or any article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation, that is a consumer firework or display firework.

(b) Does not include:

(i) Toy pistols, toy canes, toy guns or other devices in which paper caps containing not more than twenty-five hundredths grains of explosive compound are used if constructed so that the hand cannot come in contact with the cap when in place for the explosion.

(ii) Toy pistol paper caps that contain less than twenty-hundredths grains of explosive mixture, or fixed ammunition or primers therefor.

(iii) Federally deregulated novelty items that are known as snappers, snap caps, party poppers, glow worms, snakes, toy smoke devices and sparklers.

(iv) Permissible consumer fireworks.

5. "Governing body" means the board of supervisors of a county as to the area within the county but without the corporate limits of an incorporated city or town and means the governing body of an incorporated city or town as to the area within its corporate limits.

6. "NFPA 1124" means the national fire protection association code for the manufacture, transportation, storage, and retail sales of fireworks and pyrotechnic articles, 2013 edition as published in August 2012.

7. "Permissible consumer fireworks":

(a) Means the following types of consumer fireworks as defined by the APA 87-1:

(i) Ground and handheld sparkling devices.

(ii) Cylindrical fountains.

(iii) Cone fountains.

(iv) Illuminating torches.

(v) Wheels.

(vi) Ground spinners.

(vii) Flitter sparklers.

(viii) Toy smoke devices.

(ix) Wire sparklers or dipped sticks.

(x) Multiple tube ground and handheld sparkling devices, cylindrical fountains, cone fountains and illuminating torches manufactured in accordance with section 3.5 of the APA 87-1.

(b) Includes, in a county with a population of more than five hundred thousand persons, adult snappers. For the purposes of this subdivision, "adult snapper" means a device that consists of a paper-wrapped or plastic tube that does not contain a fuse and produces a single report and meets all applicable requirements for fuseless firecrackers as defined by the consumer product safety commission and the American fireworks safety laboratory.

(c) Does not include anything that is designed or intended to rise into the air and explode or to detonate in the air or to fly above the ground, including firework items defined by the APA 87-1 and known as firecrackers, bottle rockets, sky rockets, missile-type rockets, helicopters, aerial spinners, torpedoes, roman candles, mine devices, shell devices and aerial shell kits or reloadable tubes.

8. "Person" includes an individual, partnership, firm or corporation.

§ 36-1602 Fireworks prohibited

A. Except as otherwise provided by this article, it is unlawful to sell, offer or expose for sale, use, explode or possess any fireworks.

B. This section shall not be construed to prohibit or restrict the manufacture or possession, by a qualified pyrotechnic expert, of aerial set pieces designed for use in pyrotechnical displays, or the display of such set pieces in accordance with the terms of this article. The governing body as defined by section 36-1601 shall determine if the expert is qualified.

§ 36-1603 Permit for public display

A. Each governing body may adopt reasonable rules and regulations for granting permits for supervised public displays of fireworks within its jurisdiction, by municipalities, fair associations, amusement parks and other organizations and groups.

B. Application for a permit shall be made in writing not less than five days prior to the date of the display. Every display shall be handled by a competent operator, and shall be of a character and located, discharged and fired so that it will not be hazardous to property or endanger any person. Before a permit is granted, the operator, location and handling of the display shall be approved, after investigation, by the fire chief of the city or town or the sheriff of the county as is appropriate. After a permit is granted, the sale, possession, use and distribution of fireworks for the display shall be lawful for that purpose only. No permit is transferable or assignable.

C. If a community, organization or group authorized under this article to obtain a permit for a public display of fireworks desires a permit for a locality more than fifty miles from the county seat and not within the limits of an incorporated city or town, application may be made to the justice of the peace of the precinct in which that locality is situated. The justice may issue the permit, subject to the conditions prescribed by this article, in the same manner as the board of supervisors. The constable shall make the prescribed investigation. The justice of the peace shall promptly report to the board of supervisors any permit issued by him pursuant to this subsection, and shall transmit the bond of the permittee to the board.

§ 36-1604 Bond of permittee

The governing body shall require each permittee to give a satisfactory bond in a principal amount not less than five hundred dollars, conditioned upon payment of all damages which may be caused to persons or property by reason of the display.

§ 36-1605 Permitted uses; violations; civil penalties

A. This article does not prohibit:

1. The sale at wholesale by a resident wholesaler, dealer or jobber of fireworks that are not prohibited by this article.

2. The sale of fireworks to bona fide wholesalers, dealers or jobbers that are to be and are shipped directly out of the state, if the seller of fireworks under this paragraph maintains for a period of five years and makes available on request to the office of the state fire marshal or the local fire marshal, as applicable, the following information:

(a) The name and address of each bona fide wholesaler, dealer or jobber for which a shipment is to be and is made directly out of the state, including each wholesaler's, dealer's and jobber's applicable state fireworks permit.

(b) An invoice for each sale for which a shipment is to be and is made directly out of the state that contains a detailed listing of the products sold for the shipment that is to be and is made directly out of the state.

(c) A bill of lading for each shipment that is to be and is shipped directly out of the state that contains both of the following:

(i) The name and address of the out-of-state shipment destination.

(ii) The name of the private carrier making the out-of-state delivery.

(d) A statement from each bona fide wholesaler, dealer or jobber purchasing fireworks that are to be and are shipped directly out of the state that contains both of the following:

(i) The purpose for which the fireworks that are to be and are shipped directly out of the state are to be used, including the location where the fireworks will be used.

(ii) That the fireworks that are not permissible fireworks in this state are for sale or use only outside of this state.

3. The use of fireworks by railroads or other transportation agencies for signal purposes or illumination.

4. The sale or use of explosives for blasting or other legitimate industrial purposes.

5. The use of fireworks or explosives, or both, by farmers, ranchers and their employees who are regulated under title 3, and by state and federal employees who manage wildlife resources, to rally, drive or otherwise disperse concentrations of wildlife for the purpose of protecting property or wildlife, if the seller of fireworks for use under this paragraph maintains for a period of five years and makes available on request to the office of the state fire marshal or the local fire marshal, as applicable, all of the following information:

(a) The name and address of each person or business purchasing fireworks for use pursuant to this paragraph.

(b) A copy of one of the following types or categories of current licenses issued by the Arizona department of agriculture for each person or business purchasing fireworks for use pursuant to this paragraph:

(i) Dairy and milk license.

(ii) Egg and egg products license.

(iii) Feedlot license.

(iv) Citrus, fruit and vegetable license.

(v) Brand license.

(vi) Pesticide use license.

(c) A statement from each person or business purchasing fireworks for use pursuant to this paragraph that contains the purpose for which the fireworks are to be used, including the location where the fireworks will be used.

6. The sale of permissible consumer fireworks by a retail establishment if the retail establishment complies with the rules adopted pursuant to section 36-1609.

7. The use of permissible consumer fireworks by the general public, unless the use is prohibited by a governing body of an incorporated city or town.

B. A person who fails to maintain or to make available on request information as required by subsection A, paragraph 2 of this section is subject to a civil penalty of five hundred dollars per violation. A person who attempts to purchase fireworks that are to be and are shipped directly out of the state pursuant to subsection A, paragraph 2 of this section, other than permissible fireworks, for use in this state is subject to a civil penalty of one hundred fifty dollars per violation. A seller of fireworks who attempts either to sell fireworks pursuant to subsection A, paragraph 2 of this section, other than permissible fireworks, for use in this state or to aid a purchaser in purchasing fireworks pursuant to subsection A, paragraph 2 of this section, other than permissible fireworks, for use in this state is subject to a civil penalty of one thousand dollars per violation, and the office of the state fire marshal or the local fire marshal, as applicable, may prohibit the seller from selling permissible fireworks in this state or the applicable jurisdiction.

C. A person who fails to maintain or to make available on request records as required by subsection A, paragraph 5 of this section is subject to a civil penalty of five hundred dollars per violation. A person who attempts to use fireworks purchased pursuant to subsection A, paragraph 5 of this section for a use other than the use authorized pursuant to subsection A, paragraph 5 of this section is subject to a civil penalty of one hundred fifty dollars per violation. A seller of fireworks under subsection A, paragraph 5 of this section who attempts either to sell fireworks to a purchaser for use in this state other than the use authorized by subsection A, paragraph 5 of this section or to aid a purchaser in purchasing fireworks for use in this state other than as authorized by subsection A, paragraph 5 of this section is subject to a civil penalty of one thousand dollars per violation, and the office of the state fire marshal or the local fire marshal, as applicable, may prohibit the seller from selling permissible fireworks in this state or the applicable jurisdiction.

§ 36-1606 Consumer fireworks regulation; state preemption; further regulation of fireworks by local jurisdiction

A. The sale and use of permissible consumer fireworks are of statewide concern. The regulation of permissible consumer fireworks pursuant to this article and their sale or use is not subject to further regulation by a governing body, except as follows:

1. In a county with a population of more than five hundred thousand persons, a city or town within its corporate limits or the county within the unincorporated areas of the county may do all of the following:

(a) Regulate, consistent with the standards set forth in NFPA 1124, the sale of permissible consumer fireworks within its corporate limits.

(b) Prohibit the sale of permissible consumer fireworks on days other than April 25 through May 6, May 20 through July 6 and December 10 through January 3 of each year and two days before the first day of Diwali through the third day of Diwali each year.

(c) Prohibit the use of permissible consumer fireworks on days other than May 4 through May 6, June 24 through July 6 and December 26 through January 4 of each year and the second and third days of Diwali of each year.

(d) Prohibit on all days the use of permissible consumer fireworks within a one-mile radius of the border of preservation lands owned by a city or town that has purchased more than fifteen thousand acres of land for preservation purposes.

(e) Prohibit on all days during a stage one or higher fire restriction the use of permissible consumer fireworks within a one-mile radius of the border of any municipal or county mountain preserve, desert park, regional park, designated conservation area, national forest or wilderness area.

(f) Prohibit on all days the use of permissible consumer fireworks between the hours of 11:00 p.m. and 8:00 a.m., except:

(i) Between the hours of 11:00 p.m. on December 31 of each year through 1:00 a.m. on January 1 of each year.

(ii) Between the hours of 11:00 p.m. on July 4 of each year through 1:00 a.m. on July 5 of each year.

2. In a county with a population of less than five hundred thousand persons, a city or town within its corporate limits or the county within the unincorporated areas of the county may do all of the following:

(a) Regulate, consistent with the standards set forth in NFPA 1124, the sale of permissible consumer fireworks.

(b) Prohibit the sale of permissible consumer fireworks on days other than May 20 through July 6 and December 10 through January 3 of each year. The sale of permissible consumer fireworks may be prohibited on days between May 20 through July 6 and December 10 through January 3 of each year if a federal or state agency implements a stage one or higher fire restriction. Any prohibition during those dates is limited to only the dates when the stage one or higher fire restriction is in place.

(c) Prohibit the use of permissible consumer fireworks on days other than June 24 through July 6 and December 26 through January 4 of each year. The use of permissible consumer fireworks may be prohibited during June 24 through July 6 and December 26 through January 4 of each year if a federal or state agency implements a stage one or higher fire restriction. Any prohibition during those dates is limited to only the dates when the stage one or higher fire restriction is in place.

(d) Prohibit on all days the use of permissible consumer fireworks within a one-mile radius of the border of preservation lands owned by a city or town that has purchased more than fifteen thousand acres of land for preservation purposes.

(e) Prohibit on all days the use of permissible consumer fireworks within a one-mile radius of the border of any municipal or county mountain preserve, desert park, regional park, designated conservation area, national forest or wilderness area.

(f) Prohibit on all days the use of permissible consumer fireworks between the hours of 11:00 p.m. and 8:00 a.m., except:

(i) Between the hours of 11:00 p.m. on December 31 of each year through 1:00 a.m. on January 1 of each year.

(ii) Between the hours of 11:00 p.m. on July 4 of each year through 1:00 a.m. on July 5 of each year.

B. A governing body that chooses to regulate, consistent with the requirements set forth in NFPA 1124 and subsection A of this section, the sale or use of permissible consumer fireworks may not require any additional signage requirements for the sale or use of permissible consumer fireworks other than those signage requirements stipulated in NFPA 1124, except that additional signage that is eight and one-half inches by eleven inches in size, that is on cardstock paper in landscape orientation, that lists the days of that year that are described in subsection A, paragraph 1 of this section relating to the time frame surrounding Diwali and that contains the following language on a contrasting background may be posted by the retail sales display of permissible consumer fireworks:

State of Arizona

Consumer Fireworks Regulations

Arizona Revised Statutes section 36-1601, et al.

The use of permissible consumer fireworks

as defined under state law is allowed:

May 4 - May 6, June 24 — July 6 and December 26 — January 4

The sale of permissible consumer fireworks

as defined under state law is allowed:

April 25 - May 6, May 20 — July 6 and December 10 — January 3

All other fireworks are prohibited, except

as authorized by local fire department permit.

The sale and use of novelties known as snappers (pop-its),

party poppers, glow worms, snakes, toy smoke devices and

sparklers are permitted at all times.

Permissible consumer fireworks may not be sold to

persons under sixteen years of age.

Check with your local fire department for additional

regulations and dates before using.

C. This article does not prohibit the imposition by ordinance of further regulations and prohibitions by a governing body on the sale, use and possession of fireworks other than permissible consumer fireworks. A governing body may not allow or authorize the sale, use or possession of any fireworks in violation of this article.

§ 36-1607 Seizure; enforcement

A. The Arizona highway patrol or any sheriff or other peace officer shall seize, remove or cause to be removed, at the expense of the owner, all fireworks or combustibles offered or exposed for sale, stored or possessed in violation of this article.

B. In addition to the persons specified in subsection A of this section, a fire marshal working for or contracted with a city, town, fire district or county may seize, remove or cause to be removed all fireworks for sale or offered for sale in the fire marshal's jurisdiction. The city, town, fire district or county may impose a fine on the owner of the fireworks that at a minimum covers the cost of the enforcement of this subsection.

C. A person that has fireworks confiscated more than two times in a five-year period is prohibited from selling permissible consumer fireworks in this state for the three succeeding years following the most recent violation.

§ 36-1608 Violation; civil penalty; classification

A. A person violating a provision of this article is subject to a civil penalty of one thousand dollars.

B. A person who uses fireworks or permissible consumer fireworks on preservation lands owned by a city or town that has purchased more than fifteen thousand acres of land for preservation purposes is guilty of a class 1 misdemeanor and shall pay a fine of at least one thousand dollars.

§ 36-1609 Office of the state fire marshal; adoption of code; sale of permissible consumer fireworks

A. The office of the state fire marshal shall adopt rules pursuant to title 41, chapter 6 to carry out this article, including a rule that adopts the national fire protection association code for the manufacture, transportation, storage and retail sales of fireworks and pyrotechnic articles, 2013 edition as published in August, 2012. A person who sells permissible consumer fireworks to the public shall comply with those rules relating to the storage of consumer fireworks and relating to the retail sales of consumer fireworks before selling permissible consumer fireworks to the public.

B. A person shall not sell or permit or authorize the sale of permissible consumer fireworks to a person who is under sixteen years of age.

§ 36-1610 Prohibited use of fireworks on state land; civil penalty

A. The office of the state fire marshal may impose a civil penalty of one thousand dollars for each incident of prohibited use of fireworks on state land in violation of this article.

B. The assistant director of the office of the state fire marshal shall deposit, pursuant to sections 35-146 and 35-147, civil penalties collected pursuant to this section in the fire suppression revolving fund established by section 37-1305.

Article 2 Gas Appliances

§ 36-1621 Definitions

In this article, unless the context otherwise requires:

1. "Cylinder" means a portable container that is constructed to United States department of transportation specifications that has less than two hundred thirty-nine pounds of water capacity and that is capable of storing liquefied petroleum gas.

2. "Gas appliance" means an appliance which is designed or used for the combustion of natural gas, manufactured gas, liquefied petroleum gases in any form or any mixture or combination of natural, manufactured or liquefied petroleum gas.

3. "Liquefied petroleum gas" means any hydrocarbon or mixture of hydrocarbons composed predominantly of propane, propylene, butanes, normal butane, isobutane or butylenes.

4. "Person" means a natural person, a corporation, partnership, firm, receiver or trustee or any organized group of persons.

§ 36-1622 Approval and installation

Any gas appliances installed or placed in tourist courts, camps, hotels and lodging houses after June 26, 1952 shall bear the seal of approval of the American gas association and shall be installed in accordance with the manufacturer's recommendations applicable to the appliance.

§ 36-1623 Ventilation by vent or flue

A. Gas appliances designed for space heating or water heating installed or placed in tourist courts, camps, hotels and lodging houses after June 26, 1952 shall be connected to an effective vent or flue leading to the outside air not less in size than the vent collar on the appliance.

B. A vent or flue for any appliance except one having a forced draft or sealed combustion chamber shall extend one foot above the highest portion of the building if the vent or flue is located within fifteen feet horizontally from the highest point. A vent or flue extending above the roof line shall terminate in a cap with a vent capacity not less than that of the vent or flue. An appliance with a forced draft or sealed combustion chamber shall be vented in accordance with the manufacturer's instructions.

C. Every vent, flue or chimney shall be a terra cotta patent chimney, or constructed of brick, fire clay or similar masonry product not less than one-half inch thick, or of approved pipe having a wall thickness which will give an insulating value equal to a terra cotta patent chimney or a masonry product and which will not disintegrate from the effects of gas fumes and other products of combustion.

§ 36-1624 Maintenance

All gas appliances and vents and flues with which they are connected shall be maintained in good repair by the owner of the premises unless there is a specific agreement to the contrary between the owner and the occupant, and the gas distributor as such shall not be responsible for injuries or damage resulting from the defective condition of any piping or appliance not owned or controlled by it.

§ 36-1624.01 Liquefied petroleum gas containers; filling; evacuating; defacing; exception

A. A person, other than the owner of a liquefied petroleum gas container or a person authorized in writing by the owner, shall not:

1. Fill or refill a liquefied petroleum gas container with liquefied petroleum gas or any other gas or compound.

2. Evacuate a liquefied petroleum gas container.

3. Deface, erase, obliterate, cover up or otherwise remove or conceal any name, mark, initial or device on a liquefied petroleum gas container.

B. This section does not apply to cylinders.

§ 36-1625 Municipal code not superseded

Nothing in this article shall be construed to supersede or reduce the requirements of an ordinance or code of an incorporated city or town on the same subject.

§ 36-1626 Violation; classification

A person failing to comply with the requirements of this article or violating any of its provisions is guilty of a class 2 misdemeanor.

Article 2.1 Safety Glazing

§ 36-1631 Definitions

In this article, unless the context otherwise requires:

1. "Hazardous locations" means those structural elements, glazed or to be glazed, in buildings used as dwellings for one or more families or persons, commercial buildings, industrial buildings and public buildings, known as interior and exterior doors composed of or containing glass or glass panels, sliding glass door units including the fixed glazed panels which are part of such units, storm or combination doors, and the fixed glazed panels immediately adjacent to such doors, whether or not the glazing in such doors, panels and enclosures is transparent, and all interior and exterior glazing in bathrooms, the bottom edge of which is less than fifty-six inches above the floor level.

2. "Panels immediately adjacent to" means the first fixed glazed panel on either or both sides of a door in a hazardous location, whether or not on the same plane and whether or not divided by a horizontal mullion, eighteen inches to forty-eight inches in width, the nearest vertical edge of which is located within three feet horizontally of the nearest vertical edge of the door and the bottom edge is less than eighteen inches above the floor level.

3. "Public buildings" means hotels, motels, dormitories, health care institutions, theatres, stadiums, gymnasiums, amusement park buildings, schools and other buildings used for educational purposes, museums, restaurants, bars, places of worship and other buildings of public assembly.

4. "Safety glazing material" means any glazing material, including, but not limited to, tempered glass, laminated glass, wire glass or rigid plastic which meets the test requirements of the American national standards institute (ANSI) standard Z-97.1-1972 as now established or as may be amended from time to time, and which is so constructed, treated or combined with other materials as to minimize the likelihood of cutting and piercing injuries resulting from human contact with the glazing material.

§ 36-1632 Labeling of safety glazing materials

A. Each light of safety glazing material manufactured, distributed, imported, fabricated or sold for use in a hazardous location, or installed in such a location, within the state of Arizona shall be permanently labeled by such means as etching, sandblasting, firing of ceramic material, hot-die stamping, transparent pressure sensitive labels, or by other suitable means. The label shall identify the labeler, whether manufacturer, fabricator, installer or other distributor, the type of safety glazing material, and the fact that the material meets the test requirements of the American national standards institute (ANSI) standard Z-97.1-1972. The label shall be legible and visible after installation.

B. Safety glazing labeling shall not be used on other than safety glazing materials.

§ 36-1633 Installation of non-safety glazing materials in hazardous location

It shall be unlawful for any material supplier, contractor, subcontractor or any person other than an employee of the foregoing, who is responsible for installation of glazing materials, to knowingly install, cause to be installed or consent to the installation of glazing materials other than safety glazing materials in any hazardous location.

§ 36-1634 Violation; classification

Any person who knowingly violates any provision of this article is guilty of a class 2 misdemeanor.

§ 36-1635 Local ordinances

This article does not supersede any city, town or county ordinance which is greater than the standards provided in this article, nor does this article prohibit such city, town or county from inspecting pursuant to the provisions of this article or its ordinances, provided any city, town or county which has adopted a local building code shall provide for an inspection program to enforce the provisions of this article or local ordinance if such ordinance provisions are at least equal to the provisions of this article covering safety glazing.

Article 2.2 Smoke Detectors in Residential Housing

§ 36-1636 Definitions

In this article, unless the context otherwise requires:

1. "Approved smoke detector" means an electronic device powered by batteries or alternating current that is capable of sensing visible or invisible products of combustion, that sounds an alarm audible in all sleeping areas of a residential housing unit and that meets the standards prescribed by the office of the state fire marshal pursuant to section 37-1383.

2. "Residential housing unit" means a one or two family dwelling unit, including a detached, semi-detached or duplex unit, or a multi-family dwelling unit including an apartment or condominium.

3. "Sleeping area" means any area of a residential housing unit in which bedrooms or sleeping rooms are located.

§ 36-1637 Smoke detectors; residential housing

A. An approved smoke detector shall be installed during construction in each new residential housing unit in this state. An approved smoke detector shall be installed in each existing residential housing unit in this state which does not comply with the requirements of this section if a sleeping area is remodeled and if this remodeling requires a permit from the local political subdivision.

B. A smoke detector installed in a new residential housing unit or in a remodeled area pursuant to this section shall be maintained and kept operable by the tenant unless the tenant gives written notification to the landlord of its malfunction. The landlord shall be responsible for the repair of a smoke detector if such notice is given by the tenant.

C. The landlord shall give written notification to the tenant of the tenant's responsibilities pursuant to this section.

§ 36-1638 Local ordinances

This article does not supersede any city, town or county ordinance which is equal to or greater than the standards prescribed in this article, nor does this article prohibit a city, town or county from inspecting pursuant to its ordinance.

§ 36-1639 Exemptions

This article does not apply to:

1. Manufactured homes as defined in section 41-4001 that were manufactured from and after June 15, 1976.

2. Factory-built buildings as defined by section 41-4001 that display a certificate from the Arizona department of housing.

Article 3 Public Buildings

§ 36-1641 Safety construction in public buildings; violations; classification

A. The doors of all school houses, churches, theaters, public auditoriums and other public buildings shall be constructed so they may open outward. All screens, bars or other coverings of windows of such buildings, other than a place of legal imprisonment or confinement, shall be so constructed that they may be easily and quickly opened from the inside.

B. It is unlawful for any such building to be constructed, used or occupied unless the doors and windows are constructed in compliance with subsection A.

C. A person owning, using or permitting the use of a building contrary to the provisions of this section is guilty of a class 2 misdemeanor.

Article 3.1 Hotels and Motels; Smoke Detectors

§ 36-1645 Definitions

In this article, unless the context otherwise requires:

1. "Approved smoke detector" means an electronic device powered by batteries or alternating current that is capable of sensing visible or invisible products of combustion, that sounds an alarm audible in all sleeping areas of a guest unit and that meets the standards prescribed by the office of the state fire marshal pursuant to section 37-1383.

2. "Automatic fire extinguishing equipment" means a mechanical system that puts out fires by ejecting chemicals or water.

3. "Guest unit" means a room in a motel or hotel that is offered for lodging.

§ 36-1646 Smoke detectors; hotels and motels

An approved smoke detector shall be installed in each guest unit in a motel or hotel which is not equipped with automatic fire extinguishing equipment.

§ 36-1647 Local ordinances

This article does not supersede any city, town or county ordinance which is equal to or greater than the standards prescribed in this article, nor does this article prohibit a city, town or county from inspecting pursuant to its ordinance.

Article 4 Abandoned Refrigerators

§ 36-1651 Abandoned refrigerators; classification

A person who abandons, discards, stores or keeps in any place accessible to children, or who, as the owner, lessee or manager, permits to remain on premises under his control, in any place accessible to children, a refrigerator, icebox, freezer cabinet or similar container, of a capacity of not less than one and one-half cubic feet, which is no longer used for refrigeration purposes, without the attached doors, hinges, lids or latches being removed, is guilty of a class 3 misdemeanor.

Article 5 Injurious Drugs and Substances

§ 36-1661 Placing or leaving injurious drug or substance about habitation; classification

A person who scatters, throws, places or leaves in or about a house or building used or occupied as the residence of any other person, or in or about a yard, lawn or enclosure connected therewith, a sample of any drug, medicine or substance injurious to health, is guilty of a class 2 misdemeanor.

Article 6 Lead-Based Paint

§ 36-1672 Local programs

A. The department is authorized to develop and conduct local programs for the prevention, detection and treatment of lead-based paint poisoning, subject to legislative appropriation. Such authorization shall include:

1. Educational programs intended to communicate the health danger and prevalence of lead-based paint poisoning among children to parents, educators and local health officials.

2. Development and carrying out of community testing programs designed to detect incidence of lead poisoning due to lead-based paint and other sources among community residents and to ensure prompt medical treatment for such afflicted individuals.

B. The director may delegate to any local agency the authority to conduct the local program within the local agency's jurisdiction as provided in section 36-136, subsection E.

§ 36-1673 Reporting of lead levels

The director shall adopt rules and regulations establishing an effective procedure under which all physicians licensed pursuant to title 32, chapter 13, 14 or 17 shall report to the department all analyses of blood samples which indicate significant levels of lead. The regulations shall include such necessary criteria to determine those levels of significance which shall be reported.

§ 36-1674 Prohibited acts; classification

A. It shall be unlawful for any person to:

1. Apply lead-based paint to any interior surface of residential housing or a public building and to the exteriors and porches of such housing and buildings in any area which is readily accessible to children under seven years of age.

2. Apply lead-based paint to any toy, furniture, cooking utensil, drinking utensil, or eating utensil in violation of the requirements established by the director.

3. Sell or distribute any toy, furniture, cooking utensil, drinking utensil, or eating utensil containing any lead-based paint which does not conform with the requirements established by the director.

B. Lead-based paint that may be purchased by the general public shall not be sold or distributed in any form unless the container is clearly labeled as follows:

"(Front panel)

Warning'.

Contains lead

Dried film of this paint may be

harmful if eaten or chewed

See other cautions on (side or back) panel.*

(Back or side panel)

Cautions

Do not apply on toys and other children's

articles, furniture, or interior surfaces

of any dwelling or facility which may be

occupied or used by children.

Do not apply on those exterior surfaces of

dwelling units, such as windowsills, porches,

stairs, or railing, to which children may be

commonly exposed.

Keep out of reach of children."

The signal word, the statement of the principal hazard or hazards, and instructions to read carefully any cautionary information that may be placed elsewhere on the label shall appear together on the main panel of the label. Such information shall be placed together and distinctively apart from other wording or designs. The necessary prominence shall be achieved by placement within the borders of a square or rectangle with or without a borderline, and by use of suitable contrasts with the background achieved by distinctive typography or color, and by both color and typography when needed. The signal word and statement of hazard shall be in capital letters. The signal word shall be of a size bearing a reasonable relationship to the other type on the main panel, but shall not be less than eighteen point type, and the size of the statement of hazard shall not be less than twelve point type unless the label space on the container is too small to accommodate such type size. When the size of the label space requires a reduction in type size, the reduction shall be made to a size no smaller than necessary and in no event to a size smaller than six point type.

C. The label requirement required by subsection B shall not apply to artists' supplies.

D. Any person who violates a provision of this section is guilty of a class 1 misdemeanor.

§ 36-1675 Administration

A. The director may adopt such rules and regulations as may be necessary and feasible to implement the purposes of this article.

B. No person shall interfere, obstruct or hinder an authorized representative of the department in the performance of his duty to administer the provisions of this article or the rules and regulations adopted thereunder.

C. The department, through its authorized representative, may take samples of materials for inspection and analysis, and hold for any item regulated by this article.

D. The department, through its authorized representative, may remove from availability for sale any regulated item when there is reasonable cause to believe a violation of this article or the rules and regulations adopted thereunder exists. When such regulated items are removed from availability for sale, they shall be so tagged, and such tags shall not be removed except by an authorized representative of the department, or as the department may direct, after satisfactory proof of compliance with all requirements of this article and such rules and regulations and a release for sale has been issued by the department through its authorized representative.

§ 36-1676 Injunction

In addition to the remedies provided in this article, the director, with the assistance of the attorney general, may apply to the superior court for injunctive relief.

Article 7 Pool Safety

§ 36-1681 Pool enclosures; requirements; exceptions; enforcement

A. A swimming pool, or other contained body of water that contains water eighteen inches or more in depth at any point and that is wider than eight feet at any point and is intended for swimming, shall be protected by an enclosure surrounding the pool area, as provided in this section.

B. A swimming pool or other contained body of water required to be enclosed by subsection A whether a belowground or aboveground pool shall meet the following requirements:

1. Be entirely enclosed by at least a five foot wall, fence or other barrier as measured on the exterior side of the wall, fence or barrier.

2. Have no openings in the wall, fence or barrier through which a spherical object four inches in diameter can pass. The horizontal components of any wall, fence or barrier shall be spaced not less than forty-five inches apart measured vertically or shall be placed on the pool side of a wall, fence or barrier which shall not have any opening greater than one and three-quarter inches measured horizontally. Wire mesh or chain link fences shall have a maximum mesh size of one and three-quarter inches measured horizontally.

3. Gates for the enclosure shall:

(a) Be self-closing and self-latching with the latch located at least fifty-four inches above the underlying ground or on the pool side of the gate with a release mechanism at least five inches below the top of the gate and no opening greater than one-half inch within twenty-four inches of the release mechanism or be secured by a padlock or similar device which requires a key, electric opener or integral combination which can have the latch at any height.

(b) Open outward from the pool.

4. The wall, fence or barrier shall not contain openings, handholds or footholds accessible from the exterior side of the enclosure that can be used to climb the wall, fence or barrier.

5. The wall, fence or barrier shall be at least twenty inches from the water's edge.

C. If a residence or living area constitutes part of the enclosure required by subsection B for a swimming pool or other contained body of water in lieu of the requirements of subsection B, there shall be one of the following:

1. Between the swimming pool or other contained body of water and the residence or living area, a minimum four foot wall, fence or barrier to the pool area which meets all of the requirements of subsection B, paragraphs 2 through 5.

2. The pool shall be protected by a motorized safety pool cover which requires the operation of a key switch which meets the American society of testing and materials emergency standards 13-89 and which does not require manual operation other than the use of the key switch.

3. All ground level doors or other doors with direct access to the swimming pool or other contained body of water shall be equipped with a self-latching device which meets the requirements of subsection B, paragraph 3, subdivision (a). Emergency escape or rescue windows from sleeping rooms with access to the swimming pool or other contained body of water shall be equipped with a latching device not less than fifty-four inches above the floor. All other openable dwelling unit or guest room windows with similar access shall be equipped with a screwed in place wire mesh screen, or a keyed lock that prevents opening the window more than four inches, or a latching device located not less than fifty-four inches above the floor.

4. The swimming pool shall be an aboveground swimming pool which has non-climbable exterior sides which are a minimum height of four feet. Any access ladder or steps shall be removable without tools and secured in an inaccessible position with a latching device not less than fifty-four inches above the ground when the pool is not in use.

D. This section does not apply to:

1. A system of sumps, irrigation canals, irrigation, flood control or drainage works constructed or operated for the purpose of storing, delivering, distributing or conveying water.

2. Stock ponds, storage tanks, livestock operations, livestock watering troughs or other structures used in normal agricultural practices.

3. Public or semi-public swimming pools.

4. A swimming pool or contained body of water or barrier constructed prior to the effective date of this article.

5. Political subdivisions which enact a swimming pool barrier ordinance before the effective date of this article.

6. Political subdivisions which adopt ordinances after the effective date of this article provided that the ordinance is equal to or more stringent than the provisions of this article.

7. A residence in which all residents are at least six years of age.

E. A person on entering into an agreement to build a swimming pool or contained body of water or sell, rent or lease a dwelling with a swimming pool or contained body of water shall give the buyer, lessee or renter a notice explaining safety education and responsibilities of pool ownership as approved by the department of health services.

F. A person who violates this section is guilty of a petty offense except that no fine may be imposed if a sufficient showing is made that the person has subsequently equipped the swimming pool or contained body of water with a barrier pursuant to the standards adopted in subsection B within forty-five days of citation and has attended an approved swimming pool safety course.

Article 8 Environmental Exposure Risk Assessment

§ 36-1691 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

3. "Risk assessment" means a procedure that produces a quantitative or qualitative estimate of public health risks from an environmental exposure.

§ 36-1692 Environmental exposure risk assessment program; fees

A. The department shall establish an environmental exposure risk assessment program. The program shall:

1. Analyze public health risks associated with environmental exposures.

2. Provide for an independent evaluation and assessment of different strategies to reduce or prevent public health risks from environmental exposures.

3. Unless the director determines that the department does not have the capacity to complete required program services in a timely manner, provide state agencies, political subdivisions of this state and private entities and persons with information necessary to address public health risks from environmental exposures. The department shall establish a fee for providing environmental exposure risk assessments.

B. The department shall deposit all fees collected pursuant to this section in the risk assessment fund established by section 36-1693.

§ 36-1693 Risk assessment fund; purpose; sources

A. The risk assessment fund is established. The director of the department of health services shall administer the fund. The fund consists of monies from the following sources:

1. Legislative appropriations.

2. Risk assessment fees collected pursuant to section 36-1692.

3. Gifts, grants and donations.

B. Monies in the risk assessment fund shall be used for the following purposes:

1. Performing health effect studies and risk assessments.

2. Evaluating and calculating cleanup standards.

3. Assisting in communicating health and risk issues to the public.

4. Providing for the reasonable and necessary costs for administering this article, including the reasonable and necessary costs of administering the fund.

C. The director of environmental quality and the director of the department of health services shall enter into an agreement for determining the assessment and evaluation services that the department of health services shall provide to the department of environmental quality and the method for determining reimbursement for those services for which the cost exceeds the amount of monies transferred pursuant to this section. The assessment and evaluation services provided by agreement with the department of environmental quality may include services not related to the water quality assurance revolving fund and may include any of the following:

1. Performing health effect studies and risk assessments.

2. Evaluating and calculating cleanup standards.

3. Assisting in communicating health and risk issues to the public.

D. On July 1 in fiscal years 2000-2001, 2001-2002 and 2002-2003, the director of environmental quality shall transfer two hundred sixteen thousand dollars from the water quality assurance revolving fund established by section 49-282 to the department of health services for deposit in the risk assessment fund for purposes of the risk assessment program established pursuant to this article.

E. On notice from the director of the department of health services, the state treasurer shall invest and divest monies in the fund as provided by section 35-313 and monies earned from investment shall be credited to the fund. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations, except that at the end of the fiscal year the director of the department of health services shall return for deposit in the water quality assurance revolving fund all unexpended and unencumbered monies from the previous fiscal year's transfer.

Article 9 Firefighting Foam

§ 36-1696 Firefighting foam; prohibited uses; exception; definitions

A. Beginning January 1, 2020, a person, local government or state agency may not discharge or otherwise use for training purposes class B firefighting foam that contains intentionally added PFAS chemicals unless otherwise required by law or federal regulation.

B. Beginning January 1, 2020, a person, local government or state agency may not discharge or otherwise use for testing purposes class B firefighting foam that contains intentionally added PFAS chemicals unless otherwise required by law or federal regulation or the testing facility has implemented appropriate containment, treatment and disposal measures to prevent uncontrolled releases of firefighting foam into the environment.

C. This section does not restrict the manufacture, sale or distribution of class B firefighting foam that contains intentionally added PFAS chemicals or the discharge or other use of class B firefighting foam in emergency firefighting or fire prevention operations.

D. For the purposes of this section:

1. "Class B firefighting foam" means foam designed to extinguish a fire that involves a flammable liquid.

2. "Local government" includes any county, city, town, fire district or other special district that provides firefighting services.

3. "PFAS chemicals" means perfluoroalkyl and polyfluoroalkyl substances that are a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom, that are designed to be fully functional in class B firefighting foam formulations and that are used as a firefighting agent.

4. "Testing" includes calibration testing, conformance testing and fixed system testing.

Chapter 14 Human Eggs

Article 1 General Provisions

§ 36-1701 Definitions

In this article, unless the context otherwise requires:

1. "Clinical investigation" means activity conducted for the purpose of developing, refining or training in the process of in vitro fertilization for the treatment of human infertility, including experiments, investigations, clinical trials, and the development of new technology. Clinical investigation does not include human somatic cell nuclear transfer.

2. "Egg" means an oocyte or egg cell of a human female.

3. "Egg donor" means a woman who provides or agrees to provide her eggs for purposes other than her own impregnation with those eggs.

4. "Human somatic cell nuclear transfer" has the same meaning prescribed in section 35-196.04.

5. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

6. "Purchase" includes providing any cash, in-kind payment or other valuable financial or nonfinancial consideration.

§ 36-1702 Informed consent for egg donation; requirements; unprofessional conduct

A. For the purposes of the duty of care owed by a physician, an egg donor is a patient of the physician who retrieves the eggs from the egg donor.

B. A physician shall not retrieve eggs except in a hospital, clinic or other medical facility that meets the licensing standards for the facility prescribed by this title.

C. Before performing any medical procedure or prescribing any hormones or other drugs for an egg donor, a physician must comply with all requirements prescribed by the federal food and drug administration and provide the egg donor with the following information:

1. A description of all hormones and other drugs to be taken by the egg donor, including the dosage, frequency of administration, intended biochemical function and likely physiological response to each medication.

2. A description of all procedures to be performed on the egg donor, including the purpose, duration and estimated recovery time for each procedure.

3. Medically accurate disclosures concerning all potential risks of egg donation that a reasonable patient would consider material to the decision of whether to undergo the procedure, including the medical risks associated with the surgical procedure and the drugs, medications and hormones prescribed for ovarian stimulation during the process.

4. A description of the effects that the surgical procedure and the drugs, medications and hormones may have on future attempts of the egg donor to become pregnant.

5. Notice that the egg donor cannot be completely informed of all potential risks or effects because all potential risks or effects and the magnitude of those risks or effects may not be known.

D. The physician or the physician's agent or designee must provide the information required by subsection C of this section before the physician or the physician's agent or designee performs any screening or testing of a potential egg donor. The physician must obtain written and oral informed consent for the procedure from the egg donor before performing any medical procedure that is not part of the screening process or prescribing any hormones or other drugs for the egg donor.

E. This section does not require a physician to provide additional information or obtain additional informed consent if the physician's current practices relating to informed consent already meet the standards prescribed by subsections C and D of this section.

F. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.

§ 36-1703 Purchase of human eggs; prohibition; violation; classification; unprofessional conduct

A. A person shall not purchase or offer to purchase a human egg for human somatic cell nuclear transfer or for any purpose other than treatment of human infertility or for clinical investigation by a physician or clinic whose primary practice is treatment of human infertility. This section does not prohibit compensation of egg donors who provide or agree to provide eggs for the treatment of human infertility or for clinical investigation by a physician or clinic whose primary practice is treatment of human infertility.

B. This section does not prohibit any of the following:

1. Treatment of human infertility that involves donated eggs.

2. Cryopreservation of human eggs.

3. Clinical investigation on unfertilized human eggs.

4. Donation of eggs without compensation for any purpose.

C. A person who violates this section is guilty of a class 1 misdemeanor.

D. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.

Chapter 15 Mobile Food Vendors and Mobile Food Units

Article 1 General Provisions

§ 36-1751 Definitions

In this chapter, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

3. "Mobile food unit" means a food establishment that is licensed by this state, that is readily movable and that dispenses food or beverages for immediate service and consumption and other incidental retail items from any vehicle as defined in section 28-101.

4. "Mobile food vendor" means any person who owns, controls, manages or leases a mobile food unit or contracts with a person to prepare foods and vend from, drive or operate a mobile food unit.

Article 2 Licensure and Regulation

§ 36-1761 Mobile food vendors; mobile food units; rules; health and safety licensing standards

A. The director shall adopt rules that do all of the following:

1. Establish health and safety licensing standards for mobile food vendors and mobile food units that apply on a statewide basis. The licensing standards shall:

(a) Include three categories of mobile food units that are based on the type of food dispensed and the amount of handling and preparation required.

(b) Include general physical and operation requirements of a mobile food unit, including:

(i) Installation of compressors, generators and similar mechanical units that are not an integral part of the food preparation or storage equipment.

(ii) Necessary commissary or other servicing area agreements.

(iii) Vehicle and equipment cleaning requirements.

(iv) Waste disposal requirements during and after operation on public or private property, which may not include the size or dimensions of any required solid waste receptacle.

2. Establish statewide inspection standards that are based on objective factors for use by the county health departments.

3. Establish a licensing process for mobile food units that does all of the following:

(a) Requires a separate license for each mobile food unit.

(b) Requires a license to be renewed annually.

(c) Delegates to the county health department in the county where the mobile food vendor's commissary is located the licensing and health and safety inspection for state licensure using the statewide inspection standards adopted pursuant to this section. The licensing process shall require random inspections by county health departments at no additional cost except as provided in section 11-269.24. A mobile food unit license issued by a county health department pursuant to this section shall have reciprocity in each county of this state. A county health department may enforce the statewide inspection standards regardless of where the license was issued.

(d) Requires all employees of a mobile food vendor to have a valid food handler card or a certificate from an accredited food handler training class as specified in rule by the department.

(e) Requires that the license be displayed in the mobile food vendor's operating location in a conspicuous location for public view.

B. The rules adopted pursuant to this section may not do either of the following:

1. Require a mobile food vendor or mobile food unit to operate a specific distance from the perimeter of an existing commercial establishment or restaurant.

2. Address the operating hours of a mobile food unit.

C. Except as otherwise specified in this chapter, the director may adopt rules that are substantively the same as the regulations that are in place on August 3, 2018 in Maricopa county regarding mobile food establishments.

D. This section does not preclude a city, town or county from requiring a mobile food vendor to be licensed if the licensing system includes a background check or identification and fingerprinting of the owner of the mobile food vending operation.

Chapter 16 Health Care Workforce

Article 1 Workforce Development

§ 36-1801 Definitions

(Rpld. 7/1/27)

In this chapter, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Assisted living center" has the same meaning prescribed in section 36-401.

3. "Assisted living facility" has the same meaning prescribed in section 36-401.

4. "Department" means the department of health services.

5. "Director" means the director of the department.

6. "Health care institution" has the same meaning prescribed in section 36-401.

7. "Nursing care institution" has the same meaning prescribed in section 36-401.

§ 36-1802 Arizona nurse education investment pilot program; fund; use of monies

(Rpld. 7/1/27)

A. The Arizona nurse education investment pilot program is established in the department to increase the capacity of nursing education programs in this state by fostering collaboration among this state's education and health care communities and the state and federal governments. Subject to available monies, the program shall address this state's nursing shortage by increasing the number of all levels of nurses graduating from this state's nursing education programs by the end of fiscal year 2026-2027 from the number graduating in fiscal year 2021-2022. The department may use legislative appropriations, private donations, grants and federal monies to implement, support, promote and maintain the program or to supplant monies appropriated from the state general fund. The department shall use all other funding sources before using any state general fund monies appropriated for this purpose.

B. The Arizona nurse education investment pilot program fund is established consisting of legislative appropriations and monies provided by any federal agency, entity or program for nursing education and workforce expansion. The department shall administer the fund. Monies in the fund are continuously appropriated and exempt from the provisions of section 35-190 relating to lapsing of appropriations. Any monies remaining in the fund on June 30, 2027 revert to the state general fund.

C. The department shall allocate fund monies to the Arizona board of regents and community college districts based on the number of nursing students graduating in fiscal year 2021-2022 from eligible education programs offered or overseen by the Arizona board of regents and the community college districts. Eligible education programs include programs for nursing assistants, licensed practical nurses, registered nurses and advanced practice nurses.

D. Monies allocated from the Arizona nurse education investment pilot program fund shall be used by the Arizona board of regents and the community college districts:

1. To pay for salaries, benefits, training and related expenses and operational costs necessary to increase the number of qualified nursing education faculty members teaching in nursing degree and certificate programs that are operated or overseen by the Arizona board of regents or the community college districts. The monies may be spent only for additional nursing education faculty members based on the number of faculty members who provided this education on June 30, 2021.

2. To supplement and not supplant monies that are appropriated by the legislature for each of fiscal years 2022-2023 through 2025-2026 based on the number of nursing education faculty members who provided this education and who were funded in fiscal year 2021-2022.

3. For capital expenses that are directly related to additional faculty and students, including student support services.

E. The Arizona board of regents shall establish a process, which may include a grant program, to annually distribute fund monies to the universities under its jurisdiction for use only as prescribed in this section.

F. The director shall award grants to community college districts for use only as prescribed in this section based on the recommendations from a statewide organization that represents community colleges. The department shall establish an application form, process and procedure by which monies may be granted. The grants prescribed by this subsection are subject to the availability of monies and shall be distributed in a manner designed to increase the number of nurse graduates or students completing certificate programs by increasing available faculty and teaching resources in a manner that:

1. Provides for the efficient use of available monies and shared resources.

2. Distributes monies throughout geographic areas of this state and to underrepresented populations in the nursing workforce in this state.

§ 36-1803 Student nurse clinical rotation and licensed or certified nurse training pilot program; preceptor training; expansion; grants; definition

(Rpld. 1/1/27)

A. The student nurse clinical rotation and licensed or certified nurse training program is established in the administration to expand the capacity of preceptor training programs at health care institutions for nursing students and licensed or certified nurses.

B. Except as provided in section 36-1804, the administration shall develop a grant program to distribute monies appropriated for the student nurse clinical rotation and licensed or certified nurse training program to health care institutions that are licensed pursuant to chapter 4 of this title only to expand or create clinical training placements for undergraduate nursing students and licensed or certified nurses to transition to practice and increase specialty nursing skills. Eligible preceptor training programs may include programs for nursing assistants, licensed practical nurses, registered nurses and advanced practice nurses, including nursing assistant programs offered by assisted living centers, assisted living facilities and nursing care institutions and approved by the Arizona state board of nursing.

C. The grant monies are intended to supplement and not supplant existing preceptor or training program expenses covered by the health care institution grantee. A health care institution applying for a grant for a licensed or certified nurse training program pursuant to this section shall include matching monies from a revenue source other than the state general fund.

D. The administration shall establish an application process for the grant program and may award grants for multiyear programs. Proposals must include outcome goals and measurements of the number of nurses planned to be trained and retention targets. The administration shall consider the following factors when determining grant awards:

1. The geographic and population distribution.

2. The number of nurses planned to be trained and retained.

3. The cost of the proposal for the number of nurses expected to participate and to be retained compared to other proposals.

E. The administration may use monies appropriated for the purposes of this section for program administration costs and, if deemed necessary by the administration, to contract with individuals or entities to administer all or any of the elements of the program.

F. The administration may use private donations, grants and federal monies to implement, support, promote or maintain the program or to supplant monies appropriated from the state general fund. The administration shall use all other funding sources for the grant program before using any state general fund monies.

G. The administration may terminate the funding of a grant if outcomes reported pursuant to section 36-1805 demonstrate that the grant proposal is not performing as planned. Monies returned may be used for the other grant proposals.

H. For the purposes of this section, "licensed or certified nurse" means a nurse who is or becomes licensed or certified while participating in the training program and who is new to practice.

§ 36-1804 Licensed registered nurse transition to practice pilot program; program administrator; program curricula; stipends

(Rpld. 1/1/27)

A. Subject to available monies, the administration may establish a licensed registered nurse transition to practice pilot program to facilitate and improve the transition for nurses from education to practice. The program shall support and develop new nurses, provide evidence-based professional development and accelerate the novice nurse to a competent nurse more rapidly.

B. The administration may contract with a statewide hospital association whose membership includes critical care access hospitals or a statewide nurses association experienced in education and training programs to administer some or all of the program. The administration or designated program administrator shall select curricula for the program from a national vendor with experience administering nurse training programs. The curricula must include the following elements:

1. Effective decision-making skills.

2. Clinical leadership while administering care.

3. Incorporating research-based evidence into practice.

4. Professional commitment to nursing.

5. Individual development goals.

C. Subject to available monies, the administration or designated program administrator shall provide stipends to participating health care institutions to implement the licensed registered nurse transition to practice pilot program using the selected curricula. The program administrator shall give priority to critical access hospitals or hospitals located in counties with a population of less than five hundred thousand persons.

D. The monies provided under the program are intended to supplement and not supplant existing transition to practice training program expenses covered by the participating health care institutions. The program established pursuant to this section shall require participating health care institutions to provide matching monies from a revenue source other than the state general fund. Participation in the program is voluntary. Any grant monies remaining unused at the end of a fiscal year may be rolled over to the next fiscal year or reallocated by the administration to the program established by section 36-1803.

§ 36-1805 Annual reports; hearing

(Rpld. 1/1/27)

A. The department shall develop reporting requirements for each institution of higher education and health care institution participating in the Arizona nurse education investment program. The administration shall develop reporting requirements for the student nurse clinical rotation and licensed or certified nurse training program, and the licensed registered nurse transition to practice program. On or before December 31, 2023 and each December 31 thereafter, the department and administration shall provide a report to the governor, the president of the senate, the speaker of the house of representatives and the chairpersons of the health and human services committees of the senate and the house of representatives, or their successor committees, and shall provide a copy of the report to the secretary of state. Each report shall include or address the following:

1. The number of participating entities and who participated in each program.

2. The number of nurses who completed each educational and clinical training program.

3. The measurements developed by the department or administration on the expansion of the statewide health care workforce and retention rates of health care institutions.

4. The expansion of university and community college programs, including the number of additional nursing students in each educational program.

5. The number of new nurse preceptors at each health care institution, the number of students and licensed or certified nurses trained by the expansion of preceptors at each health care institution and the turnover rate of licensed or certified nurses within one year of hiring at each health care institution.

6. The number and identity of health care institutions and the number of nurses participating at each health care institution in the licensed registered nurse transition to practice program and the turnover rate of licensed registered nurses within one year of hiring at each participating health care institution.

7. Any other benchmarking and outcome reports developed by the department to measure the effectiveness of the programs established pursuant to this chapter.

B. The health and human services committees of the house of representatives and the senate, or their successor committees, shall conduct a hearing to review the reports.

§ 36-1806 Preceptor grant program for graduate students; requirements; definition

(Rpld. 1/1/27)

A. Subject to available monies, the department shall establish the preceptor grant program for graduate students to expand the capacity of preceptor training for graduate students pursuing degrees as physicians in allopathic or osteopathic medicine, as advanced practice registered nurses, physician assistants or dentists by eligible health professionals in those disciplines who are licensed pursuant to title 32.

B. The purpose of the program is to encourage and support more preceptorships for the training and development of graduate students to become new physicians, advanced practice registered nurses, physician assistants or dentists in this state. Participation is voluntary.

C. The monies appropriated to the department for the preceptor grant program shall be allocated to the five largest statewide nonprofit organizations that represent allopathic physicians, osteopathic physicians, advanced practice registered nurses, physician assistants or dentists. The department shall allocate the monies in proportion to the number of health professionals in those specific disciplines who hold active licenses pursuant to title 32. The department may allow organizations to receive reasonable costs for processing applications and stipends. Organizations shall annually report to the department the number of applications received and the number of grants awarded pursuant to this section.

D. Eligible allopathic physicians, osteopathic physicians, certified nurse midwives, certified registered nurse anesthetists, clinical nurse specialists, registered nurse practitioners, physician assistants or dentists who are licensed pursuant to title 32 and who serve as volunteer preceptors may apply for grants from the statewide nonprofit organization that represents their discipline and that is allocated grant monies, pursuant to requirements and criteria prescribed in this section. To qualify for a grant, the licensed health professional must file a grant application and provide sufficient evidence of completion of a qualified preceptorship with a graduate student in the same professional discipline. Grant monies must be allocated by the organizations to qualified applicants based on the order in which the applications are received, with a maximum grant of $1,000 per calendar year to each qualified applicant, regardless of the number of preceptorships the applicant provides in that calendar year. Grant priority shall be given to preceptorships in primary health care and in rural areas of this state. Any grant monies remaining unused at the end of a fiscal year may be rolled over to the next fiscal year or reallocated by the department to one of the other statewide nonprofit organizations.

E. To qualify under this section, a preceptorship must meet all of the following:

1. Provide an uncompensated mentoring experience in which the licensed health professional serving as the preceptor provides a program of personalized instruction, training and supervision to the graduate student.

2. Be at least four weeks' duration.

3. Provide an educational opportunity for the graduate student to enable the student to obtain an eligible professional degree.

F. The department may use private donations, grants and federal monies to implement, support, promote or maintain the program.

G. For the purposes of this section, "graduate student" means an individual who is matriculating at the graduate level at any accredited institution of higher education in this state and who is seeking a degree in the areas of doctor of medicine, doctor of osteopathic medicine, certified nurse midwife, certified registered nurse anesthetist, clinical nurse specialist, registered nurse practitioner, physician assistant or dentist.

§ 36-1807 Expansion of behavioral health workforce training; pilot program fund; grant program; requirements

(Rpld. 1/1/27)

A. The pilot program fund is established. The Arizona health care cost containment system administration shall administer the fund. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations. Monies in the fund shall be used to expand the capacity of the Maricopa county community college district and the Navajo county community college district to train students as behavioral health workers by developing behavioral health curriculum in partnership with the Maricopa county community college district and the Navajo county community college district.

B. The Arizona health care cost containment system may use legislative appropriations, private donations, grants and federal monies to implement, support, promote or maintain the grant program established pursuant to this section or to supplant monies appropriated from the state general fund. The administration shall use all other funding sources for the grant program before using any state general fund monies.

C. Subject to available monies, the director of the Arizona health care cost containment system shall develop a grant program in partnership with the Maricopa county community college district and the Navajo county community college district to distribute the monies in the fund to community colleges with qualifying programs to train students to address the shortage of the behavioral health workforce by increasing the number of students completing qualified programs by the end of fiscal year 2024-2025. Grants provided pursuant to this section shall be used:

1. To expand behavioral health curriculum and pay for salaries, benefits, training and related expenses and operational costs necessary to increase the number of qualified behavioral health education faculty members teaching in degree and certificate programs operated or overseen by the Maricopa county community college district and the Navajo county community college district.

2. To pay for tuition, fees and related educational expenses of eligible students enrolling in behavioral health programs. The Arizona health care cost containment system, in partnership with the community college districts, shall develop and implement requirements for payment of student expenses that include a requirement that students who complete a certification or degree program practice as a behavioral health worker in this state for a minimum of two years or the number of years that equals the length of the program completed by the student, whichever is greater.

D. The grants provided pursuant to this section are subject to the availability of monies. Fund monies shall be distributed in a manner designed to increase the number of students completing behavioral health degree or certificate programs.

E. The Arizona health care cost containment system shall develop reporting requirements for each community college using monies received from the pilot program fund. On or before December 31, 2023 and each December 31 thereafter, the director of the Arizona health care cost containment system shall provide a report to the governor, the president of the senate, the speaker of the house of representatives and the chairpersons of the health and human services committees of the senate and the house of representatives, or their successor committees, and shall provide a copy of the report to the secretary of state. The report shall include:

1. The number and type of behavioral health programs created at each community college district, including the number and type of programs at each individual community college in the district.

2. The number of students supported financially in each program at each individual community college.

3. The number of students completing each program by type of program and at each specific community college.

Chapter 17 Hearing Aid Dispensers, Audiologists and Speech-Language Pathologists

Article 1 Administration

§ 36-1901 Definitions

In this chapter, unless the context otherwise requires:

1. "Accredited program" means a program leading to the award of a degree in audiology that is accredited by an organization recognized for that purpose by the United States department of education.

2. "Approved training program" means a postsecondary speech-language pathology assistant training program that is approved by the director.

3. "Assistive listening device or system" means an amplification system that is specifically designed to improve the signal-to-noise ratio for the listener who is deaf or hard of hearing, to reduce interference from noise in the background and to enhance hearing levels at a distance by picking up sound from as close to the source as possible and sending it directly to the ear of the listener, excluding hearing aids.

4. "Audiologist" means a person who engages in the practice of audiology and who meets the requirements prescribed in this chapter.

5. "Audiology" means the nonmedical and nonsurgical application of principles, methods and procedures of measurement, testing, evaluation and prediction that are related to hearing, its disorders and related communication impairments for the purpose of nonmedical diagnosis, prevention, amelioration or modification of these disorders and conditions.

6. "Clinical interaction" means a fieldwork practicum in speech-language pathology that is supervised by a licensed speech-language pathologist.

7. "Department" means the department of health services.

8. "Direct supervision":

(a) Means a licensed speech-language pathologist observes and guides a speech-language pathology assistant while the speech-language pathology assistant performs an assigned clinical activity.

(b) Includes the supervising licensed speech-language pathologist viewing and communicating with the speech-language pathology assistant via telecommunication technology as the speech-language pathology assistant provides clinical activities if the supervising licensed speech-language pathologist can provide ongoing immediate feedback throughout the clinical activity being provided.

(c) Does not include the supervising licensed speech-language pathologist reviewing a taped session at a later time.

9. "Director" means the director of the department.

10. "Disorders of communication" means an organic or nonorganic condition that impedes the normal process of human communication and includes disorders of speech, articulation, fluency, voice, verbal and written language, auditory comprehension, cognition and communications and oral, pharyngeal and laryngeal sensorimotor competencies.

11. "Disorders of hearing" means an organic or nonorganic condition, whether peripheral or central, that impedes the normal process of human communication and includes disorders of auditory sensitivity, acuity, function or processing.

12. "Hearing aid" means any wearable instrument or device designed for or represented as aiding or improving human hearing or as aiding, improving or compensating for defective human hearing, and any parts, attachments or accessories of the instrument or device, including ear molds, but excluding batteries and cords.

13. "Hearing aid dispenser" means any person who engages in the practice of fitting and dispensing hearing aids.

14. "Indirect supervision" means supervisory activities, other than direct supervision, that are performed by a licensed speech-language pathologist and that may include consulting, reviewing records and reviewing and evaluating audiotaped or videotaped sessions.

15. "Letter of concern" means an advisory letter to notify a licensee that, while there is insufficient evidence to support disciplinary action, the director believes the licensee should modify or eliminate certain practices and that continuation of the activities that led to the information being submitted to the director may result in action against the licensee.

16. "License" means a license issued by the director under this chapter and includes a temporary license.

17. "Nonmedical diagnosing" means the art or act of identifying a communication disorder from its signs and symptoms. Nonmedical diagnosing does not include diagnosing a medical disease.

18. "Practice of audiology" means:

(a) Rendering or offering to render to a person or persons who have or who are suspected of having disorders of hearing any service in audiology, including prevention, identification, evaluation, consultation, habilitation, rehabilitation, instruction and research.

(b) Participating in hearing conservation, hearing aid and assistive listening device evaluation and hearing aid prescription preparation, fitting, dispensing and orientation.

(c) Screening, identifying, assessing, nonmedical diagnosing, preventing and rehabilitating peripheral and central auditory system dysfunctions.

(d) Providing and interpreting behavioral and physiological measurements of auditory and vestibular functions.

(e) Selecting, fitting and dispensing assistive listening and alerting devices and other systems and providing training in their use.

(f) Providing aural rehabilitation and related counseling services to persons who are deaf or hard of hearing and their families.

(g) Screening speech-language and other factors that affect communication function in order to conduct an audiologic evaluation and an initial identification of persons with other communications disorders and making the appropriate referral.

(h) Planning, directing, conducting or supervising services.

19. "Practice of fitting and dispensing hearing aids":

(a) Means measuring human hearing by means of an audiometer or by any other means, solely for the purpose of making selections or adaptations of hearing aids, and fitting, selling and servicing hearing aids, including assistive listening devices, and making impressions for ear molds.

(b) Includes identification, instruction, consultation, rehabilitation and hearing conservation as these relate only to hearing aids and related devices and, at the request of a physician or another licensed health care professional, making audiograms for the professional's use in consultation with persons who are deaf or hard of hearing.

(c) Does not include formal auditory training programs, lip reading and speech conservation.

20. "Practice of speech-language pathology" means:

(a) Rendering or offering to render to an individual or groups of individuals who have or are suspected of having disorders of communication service in speech-language pathology, including prevention, identification, evaluation, consultation, habilitation, rehabilitation, instruction and research.

(b) Screening, identifying, assessing, interpreting, nonmedical diagnosing and rehabilitating disorders of speech and language.

(c) Screening, identifying, assessing, interpreting, nonmedical diagnosing and rehabilitating disorders of oral-pharyngeal functions and related disorders.

(d) Screening, identifying, assessing, interpreting, nonmedical diagnosing and rehabilitating cognitive and communication disorders.

(e) Assessing, selecting and developing augmentative and alternative communication systems and providing training in using these systems and assistive listening devices.

(f) Providing aural rehabilitation and related counseling services to persons who are deaf or hard of hearing and their families.

(g) Enhancing speech-language proficiency and communication effectiveness.

(h) Screening hearing and other factors for speech-language evaluation and initially identifying persons with other communication disorders and making the appropriate referral.

21. "Regular license" means each type of license issued by the director, except a temporary license.

22. "Sell" or "sale" means a transfer of title or of the right to use by lease, bailment or any other contract, but does not include transfers at wholesale to distributors or dealers.

23. "Speech-language pathology" means the nonmedical and nonsurgical application of principles, methods and procedures of assessment, testing, evaluation and prediction related to speech and language and its disorders and related communication impairments for the nonmedical diagnosis, prevention, amelioration or modification of these disorders and conditions.

24. "Speech-language pathology assistant" means a person who provides services prescribed in section 36-1940.04 under the direction and supervision of a speech-language pathologist licensed pursuant to this chapter.

25. "Sponsor" means a person who is licensed pursuant to this chapter and who agrees to train or directly supervise a temporary licensee in the same field of practice.

26. "Temporary licensee" means a person who is licensed under this chapter for a specified period of time under the sponsorship of a person licensed pursuant to this chapter.

27. "Unprofessional conduct" means:

(a) Obtaining any fee or making any sale by fraud or misrepresentation.

(b) Employing directly or indirectly any suspended or unlicensed person to perform any work covered by this chapter.

(c) Using, or causing or promoting the use of, any advertising matter, promotional literature, testimonial, guarantee, warranty, label, brand, insignia or other representation, however disseminated or published, that is misleading, deceiving, improbable or untruthful.

(d) Advertising for sale a particular model, type or kind of product when purchasers or prospective purchasers responding to the advertisement cannot purchase or are dissuaded from purchasing the advertised model, type or kind if the purpose of the advertisement is to obtain prospects for the sale of a different model, type or kind than that advertised.

(e) Representing that the professional services or advice of a physician will be used or made available in selling, fitting, adjusting, maintaining or repairing hearing aids if this is not true, or using the words "doctor", "clinic", "clinical" or like words, abbreviations or symbols while failing to affix the word, term or initials "audiology", "audiologic", "audiologist", "doctor of audiology", "Au.D.", "Ph.D." or "Sc.D.".

(f) Defaming competitors by falsely imputing to them dishonorable conduct, inability to perform contracts or questionable credit standing or by other false representations, or falsely disparaging the products of competitors in any respect, or their business methods, selling prices, values, credit terms, policies or services.

(g) Displaying competitive products in the licensee's show window, shop or advertising in such manner as to falsely disparage such products.

(h) Representing falsely that competitors are unreliable.

(i) Quoting prices of competitive products without disclosing that they are not the current prices, or showing, demonstrating or representing competitive models as being current models when they are not current models.

(j) Imitating or simulating the trademarks, trade names, brands or labels of competitors with the capacity, tendency or effect of misleading or deceiving purchasers or prospective purchasers.

(k) Using in the licensee's advertising the name, model name or trademark of a particular manufacturer of hearing aids in such a manner as to imply a relationship with the manufacturer that does not exist, or otherwise to mislead or deceive purchasers or prospective purchasers.

(l) Using any trade name, corporate name, trademark or other trade designation that has the capacity, tendency or effect of misleading or deceiving purchasers or prospective purchasers as to the name, nature or origin of any product of the industry, or of any material used in the product, or that is false, deceptive or misleading in any other material respect.

(m) Obtaining information concerning the business of a competitor by bribery of an employee or agent of that competitor, by false or misleading statements or representations, by the impersonation of one in authority, or by any other unfair means.

(n) Giving directly or indirectly, offering to give, or allowing or causing to be given money or anything of value, except miscellaneous advertising items of nominal value, to any person who advises another in a professional capacity as an inducement to influence that person or have that person influence others to purchase or contract to purchase products sold or offered for sale by a hearing aid dispenser, or to influence persons to refrain from dealing in the products of competitors.

(o) Sharing any profits or sharing any percentage of a licensee's income with any person who advises another in a professional capacity as an inducement to influence that person or have that person influence others to purchase or contract to purchase products sold or offered for sale by a hearing aid dispenser or to dissuade persons from dealing in products of competitors.

(p) Failing to comply with existing federal regulations regarding fitting and dispensing a hearing aid.

(q) Being convicted of a felony or a misdemeanor that involves moral turpitude.

(r) Fraudulently obtaining or attempting to obtain a license or a temporary license for the applicant, the licensee or another person.

(s) Aiding or abetting unlicensed practice.

(t) Wilfully making or filing a false audiology, speech-language pathology or hearing aid dispenser evaluation.

(u) Using narcotics, alcohol or drugs to the extent that performing professional duties is impaired.

(v) Betraying a professional confidence.

(w) Engaging in any conduct, practice or condition that impairs the ability of the licensee to safely and competently engage in the practice of audiology, speech-language pathology or hearing aid dispensing.

(x) Providing services or promoting the sale of devices, appliances or products to a person who cannot reasonably be expected to benefit from these services, devices, appliances or products.

(y) Being disciplined by a licensing or disciplinary authority of any state, territory or district of this country for an act that is grounds for disciplinary action under this chapter.

(z) Violating any provision of this chapter or failing to comply with rules adopted pursuant to this chapter.

(aa) Failing to refer an individual for medical evaluation if a condition exists that is amenable to surgical or medical intervention prescribed by the advisory committee and consistent with federal regulations.

(bb) Practicing in a field or area within that licensee's defined scope of practice in which the licensee has not either been tested, taken a course leading to a degree, received supervised training, taken a continuing education course or had adequate prior experience.

(cc) Failing to affix the word, term or initials "audiology", "audiologic", "audiologist", "doctor of audiology", "Au.D.", "Ph.D." or "Sc.D." in any sign, written communication or advertising media in which the term "doctor" or the abbreviation "Dr." is used in relation to the audiologist holding a doctoral degree.

§ 36-1902 Powers and duties of the director; advisory committee; members

A. The director shall:

1. Supervise and administer qualifying examinations to test the knowledge and proficiency of applicants for a hearing aid dispenser's license.

2. Designate the time and place for holding examinations for a hearing aid dispenser's license.

3. License persons who apply for and pass the examination for a license and who possess all other qualifications required for the practice of fitting and dispensing hearing aids, the practice of audiology and the practice of speech-language pathology.

4. License persons who apply for a license and who possess all other qualifications required for licensure as a speech-language pathology assistant.

5. Authorize all disbursements necessary to carry out this chapter.

6. Ensure the public's health and safety by adopting and enforcing qualification standards for licensees and applicants for licensure under this chapter.

7. Appoint an advisory committee to assist in examining applicants for a hearing aid dispenser's license and to collaborate with and assist the director in disciplinary matters, if requested, or any other duties prescribed in this chapter.

B. The director may:

1. Purchase and maintain, or rent, equipment and facilities necessary to carry out the examination of applicants for a license.

2. Issue and renew a license.

3. Deny, suspend, revoke or refuse renewal of a license or file a letter of concern, issue a decree of censure, prescribe probation, impose a civil penalty or restrict or limit the practice of a licensee pursuant to this chapter.

4. Make and publish rules that are not inconsistent with the laws of this state and that are necessary to carry out this chapter.

5. Require the periodic inspection of testing equipment and facilities of persons who are engaged in the practice of fitting and dispensing hearing aids, the practice of audiology and the practice of speech-language pathology.

6. Require a licensee to produce customer records of patients involved in complaints on file with the department.

C. The advisory committee appointed pursuant to subsection A, paragraph 7 of this section consists of the following members:

1. The director or the director's designee.

2. Two physicians who are licensed under title 32, chapter 13 or 17, one of whom is a specialist in otolaryngology.

3. Two licensed audiologists, one of whom dispenses hearing aids.

4. Two licensed speech-language pathologists, one of whom provides services in a school setting.

5. Two public members, one of whom is deaf or hard of hearing.

6. One member of the commission for the deaf and the hard of hearing who is not licensed pursuant to this chapter.

7. Two licensed hearing aid dispensers who are not licensed to practice audiology.

8. Two licensed speech-language pathology assistants.

D. Committee members who are licensed under this chapter shall have at least five years' experience immediately preceding the appointment in their field of practice in this state. Committee members shall serve a two-year term.

E. The director shall verify that each audiology licensee has passed a nationally recognized examination approved by the director.

F. The director shall verify that each speech-language pathology licensee has passed a nationally recognized examination approved by the director.

G. The director may recognize a nationally recognized speech-language hearing association or audiology association examination, or both, as an approved examination.

§ 36-1903 Deposit of monies

The director shall deposit pursuant to sections 35-146 and 35-147, ten per cent of all monies collected pursuant to this chapter in the state general fund and shall deposit the remaining ninety per cent in the health services licensing fund established by section 36-414, except that monies collected from civil penalties imposed pursuant to this chapter shall be deposited in the state general fund.

§ 36-1904 Issuance of license; renewal of license; continuing education; military members

A. The director shall issue a regular license to each applicant who meets the requirements of this chapter. A regular license is valid for two years.

B. A licensee shall renew a regular license every two years on payment of the renewal fee prescribed in section 36-1908. There is a thirty-day grace period after the expiration of a regular license. During this period the licensee may renew a regular license on payment of a late fee in addition to the renewal fee.

C. When renewing a regular license as a hearing aid dispenser, the licensee shall provide proof of having completed at least twenty-four hours of continuing education within the prior twenty-four months. Courses sponsored by a single manufacturer of hearing aids may not satisfy more than eight hours of continuing education within the prior twenty-four months. At least eight hours of continuing education must be from courses taught in person that offer a hands-on opportunity for instruction in dispensing-related techniques. Courses on topics that provide a hearing aid dispenser an opportunity to stay current on business or client service practices or trends in the profession or that contribute to the professional or business competence of a hearing aid dispenser may qualify for up to one-third of the continuing education requirement. The in-person course requirement may be waived by the director:

1. For all licensees, in the event of a public health emergency declaration.

2. For an individual licensee, in the event of a bona fide emergency that prevents the licensee from attending in-person courses for an indefinite period of time.

D. When renewing a regular license in audiology or in speech-language pathology, the licensee shall provide proof of having completed at least twenty hours of continuing education within the prior twenty-four months. Courses sponsored by a single manufacturer of hearing aids may not satisfy more than eight hours of continuing education within the prior twenty-four months for persons with a license in audiology.

E. The director by rule shall provide standards for continuing education courses required by this section. Educational courses that are developed by professional organizations of hearing aid dispensers, audiologists or speech language pathologists and that are used by those associations to comply with continuing education requirements are deemed to comply with department standards.

F. The director may refuse to renew a regular license for any cause provided in section 36-1934.

G. A person who does not renew a regular license as prescribed by this section shall apply for a new license pursuant to the requirements of this chapter. If an application is received by the director within one year after the expiration date of the license, the applicant is not required to take an examination.

H. A person who reapplies for a regular license issued pursuant to this chapter must provide proof of completion of the continuing education hours prescribed by subsection C or D of this section within the previous twenty-four months before the date of reapplication.

I. A license issued pursuant to this chapter to any member of the Arizona national guard or the United States armed forces reserves does not expire while the member is serving on federal active duty and is extended one hundred eighty days after the member returns from federal active duty if the member, or the legal representative of the member, notifies the director of the federal active duty status of the member. A license issued pursuant to this chapter to any member serving in the regular component of the United States armed forces is extended one hundred eighty days after the date of expiration if the member, or the legal representative of the member, notifies the director of the federal active duty status of the member. If the license is renewed during the applicable extended time period after the member returns from federal active duty, the member is responsible only for normal fees and activities relating to renewal of the license and shall not be charged any additional costs such as late fees or delinquency fees. The member, or the legal representative of the member, shall present to the director a copy of the member's official military orders, a redacted military identification card or a written verification from the member's commanding officer before the end of the applicable extended time period in order to qualify for the extension.

J. A license issued pursuant to this chapter to any member of the Arizona national guard, the United States armed forces reserves or the regular component of the United States armed forces does not expire and is extended one hundred eighty days after the date the military member is able to perform activities necessary under the license if the member both:

1. Is released from active duty service.

2. Suffers an injury as a result of active duty service that temporarily prevents the member from being able to perform activities necessary under the license.

§ 36-1905 Sponsors; duties

A. A sponsor shall directly train and supervise a temporary licensee. The director shall prescribe by rule a reasonable number of hours of training and supervision required. A sponsor may not sponsor more than two temporary licensees at one time.

B. A sponsor and the temporary licensee are equally liable for violations of this chapter and rules adopted pursuant to this chapter that are committed by the temporary licensee.

C. A sponsor who violates this section is subject to disciplinary action as prescribed pursuant to section 36-1934.

§ 36-1906 Registering place of business with director

A. A person who holds a license shall notify the director in writing of the address of the place or places where the person engages in the practice of fitting and dispensing hearing aids, the practice of audiology or the practice of speech-language pathology and of any subsequent change of address.

B. The director shall keep a record of the places of practice of persons who hold licenses.

§ 36-1907 Practicing without a license; prohibition

A. A person shall not engage in the practice of fitting and dispensing hearing aids, audiology or speech-language pathology or display a sign or in any other way advertise or claim to be a hearing aid dispenser, an audiologist or a speech-language pathologist unless the person holds an active license in good standing issued by the director as provided in this chapter.

B. A person shall not engage in performing the duties of a speech-language pathology assistant or claim to be a speech-language pathology assistant unless the person holds an active license in good standing issued by the director as provided by this chapter.

C. A licensee shall conspicuously post a license issued pursuant to this chapter in the licensee’s office or place of business.

§ 36-1908 Fees

The director shall prescribe and collect fees from persons who are regulated under this chapter for the following:

1. An original application for a regular or temporary license.

2. An original issuance of a regular or temporary license.

3. An original application for a regular or temporary license if an examination pursuant to section 36-1924 is required.

4. A renewal of a regular or temporary license.

5. An issuance of a duplicate regular or temporary license.

6. A late fee.

§ 36-1909 Bill of sale; requirements

A. A hearing aid dispenser or dispensing audiologist shall deliver a bill of sale to each person supplied with a hearing aid by the hearing aid dispenser or the dispensing audiologist or at that person's order or direction.

B. A bill of sale shall contain the hearing aid dispenser's or the dispensing audiologist's signature and shall show the address of that person's regular place of practice and the number of that person's license, a description of the make and model of the hearing aid and the amount charged. The bill of sale shall also state the serial number and the condition of the hearing aid as to whether it is new, used or rebuilt.

C. A bill of sale shall contain language that verifies that the client has been informed about audio switch technology, including benefits such as increased access to telephones and assistive listening devices. If the hearing device purchased by the client has audio switch technology, the client shall be informed of the proper use of the technology. The client shall be informed that an audio switch is also referred to as a telecoil, t-coil or t-switch.

D. A bill of sale shall contain language that informs the client about the Arizona telecommunications equipment distribution program established by section 36-1947 that provides assistive telecommunications devices to residents of this state who have hearing loss.

Article 2 Hearing Aid Dispensers

§ 36-1921 Persons not affected by chapter

This chapter does not:

1. Apply to a person while engaged in the practice of recommending hearing aids if such practice is part of the academic curriculum of an accredited institution of higher education or part of a program conducted by a public or charitable institution, or a nonprofit organization which is primarily supported by voluntary contributions unless they sell hearing aids.

2. Apply to any person engaging in the practice of measuring human hearing for the purpose of selection of hearing aids provided that the person or the organization that employs that person does not sell hearing aids or hearing aid accessories.

3. Prevent a health care professional who is licensed or certified under title 32 from acting within the scope of that person's license or certificate.

4. Apply to a person who is credentialed by this state as a teacher of the deaf from acting within the scope of those credentials.

5. Apply to a student, intern or trainee pursuing a course of study in audiology or speech-language pathology in a nationally or regionally accredited institution of higher education or training institution if all of the following are true:

(a) The activities are part of a planned course of study at that institution.

(b) The person is designated by a title that clearly indicates the status appropriate to the person's level of education.

(c) The person works under the supervision of a person who is licensed in this state as an audiologist or a speech-language pathologist.

(d) Before a person receives services from a student or a temporary licensee, the supervising licensee provides written notification of this fact to the patient.

6. Apply to any person certified by the department of health services for the school hearing screening program.

§ 36-1922 Reciprocity

A. The director may issue a license to a person who is currently licensed in another state or jurisdiction that the director determines meets the minimum licensure requirements of this chapter. The person shall apply for licensure and pay all applicable fees as prescribed by this chapter.

B. The applicant shall provide information the director determines is necessary to investigate the status of the applicant's current license.

§ 36-1923 Hearing aid dispensers; licensure requirements

A. An applicant for a hearing aid dispenser license shall pay to the director a nonrefundable application fee and shall show to the satisfaction of the director that the applicant:

1. Has an education equivalent to a four-year course in an accredited high school or has continuously engaged in the practice of fitting and dispensing hearing aids during the three years preceding August 11, 1970.

2. Has not had the applicant's license revoked or suspended by a state within the preceding two years and is presently not ineligible for licensure in any state due to prior revocation or suspension.

B. An applicant for a hearing aid dispenser license who is notified by the director that the applicant has fulfilled the requirements of subsection A of this section shall appear to be examined by written and practical tests as designated by the director in order to demonstrate that the applicant is qualified to practice the fitting and dispensing of hearing aids.

C. The director shall give at least two and not more than four examinations of the type described in this section in each calendar year unless there is an insufficient number of applicants for the second annual examination.

§ 36-1924 Examination for license

A. The examination provided for in this article shall consist of:

1. A demonstration of minimal knowledge in the techniques of testing hearing and fitting and evaluating hearing aids.

2. A knowledge of the medical and rehabilitation facilities, for children and adults with hearing disorders, in this state.

3. Tests of knowledge in the following areas as they pertain to the fitting of hearing aids:

(a) Physics.

(b) The human hearing mechanism, including its functions and causes of its disorders.

(c) The function of hearing aids.

4. Practical tests of proficiency in the techniques of taking ear mold impressions and measurement of hearing by pure tone audiometry, including the air, bone and masking methods, and speech audiometry and other skills as they pertain to the candidacy for, selection of and adaptation of hearing aids.

5. A knowledge of rehabilitation and hearing conservation techniques as they relate only to hearing aids and related devices.

B. The examination shall not be constructed to require knowledge or abilities inconsistent with the realistic services of a hearing aid dispenser or with the requirements of sound public health practices.

C. To provide adequate tests of proficiency, the examination requirements provided in this section may be changed when deemed necessary due to technological advances.

§ 36-1925 Educational materials; bills of sale; notice requirements

The department shall establish an awareness campaign for hearing aid dispensers and post on its website educational materials regarding the bill of sale notice requirements prescribed in section 36-1909.

§ 36-1926 Temporary license; sponsorship; termination of sponsorship

A. An applicant who fulfills the requirements of section 36-1923, subsection A may apply to the director for a temporary license.

B. On receiving an application as provided by subsection A of this section, accompanied by an application fee and proof of sponsorship, the director shall issue a temporary license. A temporary license allows the licensee to practice the fitting and dispensing of hearing aids for a twelve-month period.

C. An applicant shall provide proof to the satisfaction of the director that the applicant is or will be supervised and trained for fitting and dispensing activities by a sponsor licensed pursuant to this chapter.

D. A sponsor may terminate sponsorship at any time and for any reason. The director shall not review the reasons for the termination. A temporary license terminates on the date that the director receives notice from the sponsor that the sponsor is terminating sponsorship. This notice shall be accompanied by documentation that the sponsor has notified the licensee of the termination. The director shall prescribe by rule how the sponsor shall document this notification of termination. A person whose license is terminated shall apply for a new temporary license as prescribed by this section and shall not practice until granted a license.

E. A temporary licensee shall take an examination within six months after issuance of a temporary license. If the person takes and fails the examination, the person may renew the temporary license once before the temporary license expires. The person shall take the next examination following the issuance of the renewal license.

F. The director may revoke or suspend a temporary license in the same manner and for the same reasons as prescribed pursuant to section 36-1934.

G. The director may deny an application for a temporary license if the applicant has previously held a temporary license and renewed the temporary license.

Article 3 Regulation of Hearing Aid Dispensers, Audiologists and Speech-Language Pathologists

§ 36-1934 Denial, revocation or suspension of license; hearings; alternative sanctions

A. The director may deny, revoke or suspend a license issued under this chapter for any of the following reasons:

1. Being convicted of a felony or misdemeanor involving moral turpitude. The record of the conviction or a certified copy from the clerk of the court where the conviction occurred or from the judge of that court is sufficient evidence of conviction.

2. Securing a license under this chapter through fraud or deceit.

3. Committing unprofessional conduct or incompetence in the conduct of the licensee's practice.

4. Using a false name or alias in the licensee's professional practice.

5. Violating any of the provisions of this chapter.

6. Failing to comply with existing federal regulations regarding fitting and dispensing a hearing aid.

B. If the director determines pursuant to a hearing that grounds exist to revoke or suspend a license, the director may do so permanently or for a fixed period of time and may impose conditions as prescribed by rule.

C. The department may deny a license without holding a hearing. After receiving notification of the denial, the applicant may request a hearing to review the denial.

D. The department shall conduct any hearing to revoke or suspend a license or impose a civil penalty under section 36-1939 pursuant to title 41, chapter 6, article 10.

E. Instead of denying, revoking or suspending a license, the director may file a letter of concern, issue a decree of censure, prescribe a period of probation or restrict or limit the practice of a licensee.

§ 36-1936 Unlawful acts

A person may not:

1. Sell, barter, or offer to sell or barter, a license.

2. Purchase or procure by barter a license with intent to use it as evidence of the holder's qualification to engage in the practice of fitting and dispensing hearing aids.

3. Alter materially a license with fraudulent intent.

4. Use or attempt to use as a valid license one which has been purchased, fraudulently obtained, counterfeited or materially altered.

5. Wilfully make a false, material statement in an application or related document for a license or for renewal of a license.

§ 36-1937 Injunctive relief

The director may enforce any provision of this chapter by injunction or by any other appropriate proceeding. No such proceeding shall be barred by any proceeding had or pending pursuant to any other provisions of this chapter, or by the imposition of any fine or term of imprisonment pursuant thereto.

§ 36-1938 Violation; classification

Violation of any provision of this chapter is a class 3 misdemeanor.

§ 36-1939 Civil penalties; enforcement

A. The director may impose a civil penalty of not more than five hundred dollars for a violation of this chapter or a rule adopted pursuant to this chapter.

B. The attorney general and the county attorney may bring an action in the name of this state to enforce civil penalties imposed pursuant to this section. Actions shall be brought in the superior court in the county where the violation occurs.

C. The director may impose penalties assessed pursuant to this section in addition to other penalties imposed pursuant to this chapter.

D. All monies collected from civil penalties collected for violation of this chapter or a rule adopted pursuant to this chapter shall be deposited in the state general fund.

Article 4 Audiology and Speech-Language Pathology

§ 36-1940 Audiologists; licensure requirements; fingerprint clearance card; rules

A. A person who wishes to be licensed as an audiologist shall:

1. Submit a nonrefundable application fee as prescribed by section 36-1908.

2. Submit evidence satisfactory to the director that the applicant has:

(a) A doctoral degree with an emphasis in audiology from a nationally or regionally accredited college or university in an accredited program consistent with the standards of this state's universities.

(b) Completed supervised clinical rotations in audiology from a nationally or regionally accredited college or university in an accredited program consistent with the standards of this state's universities.

3. Pass an examination pursuant to section 36-1902, subsection G. The applicant must have completed the examination within three years before the date of application for licensure pursuant to this article.

4. Not have had a license revoked or suspended by a state within the preceding two years and not be presently ineligible for licensure in any state because of a prior revocation or suspension.

B. A person who has a doctoral degree in audiology and who wishes to be licensed as an audiologist to fit and dispense hearing aids shall:

1. Submit a nonrefundable application fee as prescribed by section 36-1908.

2. Submit evidence satisfactory to the director that the applicant has:

(a) A doctoral degree with an emphasis in audiology from a nationally or regionally accredited college or university in a program consistent with the standards of this state's universities.

(b) Completed supervised clinical rotations in audiology from a nationally or regionally accredited college or a university in an accredited program that is consistent with the standards of this state's universities.

3. Pass an examination pursuant to section 36-1902, subsection G. The applicant must have completed the examination within three years before the date of application for licensure pursuant to this article.

4. Pass an examination approved by the director in jurisprudence and ethics related to this chapter within six months after initial licensure. The director shall offer the examination at least four times each calendar year.

5. Not have had a license revoked or suspended by a state within the preceding two years and not be presently ineligible for licensure in any state because of a prior revocation or suspension.

C. A person who wishes to be licensed as an audiologist to fit and dispense hearing aids and who was awarded a master's degree in audiology before December 31, 2007 must:

1. Submit a nonrefundable application fee as prescribed pursuant to section 36-1908.

2. Submit evidence satisfactory to the director that the applicant meets the requirements prescribed in section 36-1940.02, subsection C for a waiver of the educational and clinical rotation requirements of this article.

3. Pass an audiology examination pursuant to section 36-1902, subsection E. The applicant must have completed the examination within three years before the date of application for licensure pursuant to this article unless the applicant is currently practicing audiology and meets the audiology examination waiver requirements of section 36-1940.02, subsection D.

4. Pass the hearing aid dispenser's examination pursuant to section 36-1924.

5. Not have had a license to practice as an audiologist or hearing aid dispenser revoked or suspended by another state within the preceding two years and not currently be ineligible for licensure in any state because of a prior revocation or suspension.

D. A person who wishes to be licensed as an audiologist and have the privilege to practice pursuant to article 4.1 of this chapter shall obtain a fingerprint clearance card pursuant to section 41-1758.07.

E. The director shall adopt rules prescribing criteria for approved postgraduate professional experience.

§ 36-1940.01 Speech-language pathologist; licensure requirements; fingerprint clearance card; rules

A. A person who wishes to be licensed as a speech-language pathologist shall:

1. Submit a nonrefundable application fee as prescribed by section 36-1908.

2. Submit evidence satisfactory to the director that the applicant has:

(a) A master's degree in speech-language pathology or the equivalent from a nationally or regionally accredited college or university in a program consistent with the standards of this state's universities.

(b) Completed a supervised clinical practicum in speech-language pathology from a nationally or regionally accredited college or university in a program consistent with the standards of this state's universities.

(c) Completed postgraduate professional experience in the field of speech-language pathology approved by the director.

3. Pass an examination pursuant to section 36-1902, subsection G.

4. Not have had a license revoked or suspended by a state within the preceding two years and not be presently ineligible for licensure in any state because of a prior revocation or suspension.

B. A person who wishes to be licensed as a speech-language pathologist whose practice is limited to providing services to pupils under the authority of a local education agency or state-supported institution shall:

1. Submit a nonrefundable application fee as provided by section 36-1908.

2. Submit proof of an employee or contractor relationship with a local education agency or a state-supported institution.

3. Hold a certificate in speech and language therapy awarded by the state board of education.

C. A person who wishes to be licensed as a speech-language pathologist and have the privilege to practice pursuant to article 4.1 of this chapter shall obtain a fingerprint clearance card pursuant to section 41-1758.07.

D. The director shall adopt rules prescribing criteria for approved postgraduate professional experience.

§ 36-1940.02 Waiver of licensure and examination requirements

A. The advisory committee appointed under section 36-1902 may recommend to the director a waiver of the educational requirements of sections 36-1940 and 36-1940.01 if an applicant submits proof satisfactory to the department that the applicant received professional education in another country equivalent to the education and practicum requirements of this article.

B. The department shall waive the examination requirements of section 36-1940.01 under either of the following conditions:

1. The applicant presents proof satisfactory to the department that the applicant is currently licensed in a state, district or territory of this country that has standards that are at least equivalent to those of this state.

2. The applicant holds a certificate of clinical competence in speech-language pathology from a nationally recognized speech-language hearing association approved by the department in the field for which the applicant is applying for licensure.

C. The department shall waive the education and clinical rotation requirements of section 36-1940 if an applicant submits proof satisfactory to the director that the applicant either:

1. Is currently licensed in a state that has standards that are at least equivalent to those of this state.

2. Has a master's degree in audiology that was awarded by an accredited program before December 31, 2007 and has completed postgraduate professional experience in audiology as approved by the director.

D. The department shall waive the audiology examination requirements of section 36-1940 if either:

1. The applicant presents proof satisfactory to the department that the applicant is currently licensed and practicing audiology in this state or in another state that has standards that are at least equivalent to those of this state.

2. The applicant presents proof satisfactory to the department that the applicant is currently practicing audiology under the authority and supervision of an agency of the United States government or of another board, agency or department of another state and holds a certificate in audiology from a recognized credentialing body approved by the director.

E. The department shall waive the hearing aid dispensing examination requirements of section 36-1940 if:

1. The applicant presents proof satisfactory to the department that the applicant holds a current license that includes dispensing and that is issued by another state that has standards that are at least equivalent to those of this state.

2. The applicant passes an examination approved by the director in jurisprudence and ethics related to this chapter within six months after initial licensure. The director shall offer the examination at least four times each calendar year.

§ 36-1940.03 Temporary licenses

A. The department shall issue a temporary license to a person who does not meet the professional experience requirement of section 36-1940.01 if the applicant meets the other requirements of that section and:

1. Includes with the application a plan for meeting the postgraduate professional experience.

2. Submits a fee prescribed by section 36-1908.

B. A person may renew a temporary license only once.

C. A person issued a temporary license shall practice only under the supervision of a person who is fully licensed by this state.

§ 36-1940.04 Speech-language pathology assistants; licensure requirements; scope of practice; supervision

A. A person who wishes to be licensed as a speech-language pathology assistant shall:

1. Submit a nonrefundable application fee as prescribed by section 36-1908.

2. Submit written evidence satisfactory to the director that the applicant has completed:

(a) An approved training program for speech-language pathology assistants or the equivalent from a nationally or regionally accredited college or university that consisted of a minimum of sixty semester credit hours of coursework with the following curriculum content:

(i) Twenty to forty semester credit hours of general education or a bachelor's degree.

(ii) Twenty to forty semester credit hours of speech-language pathology technical coursework.

(b) A minimum of one hundred hours of clinical interaction that does not include observation, under the supervision of a licensed master's level speech-language pathologist.

3. Not have had a license revoked or suspended by a state within the preceding two years and not be presently ineligible for licensure in any state because of a prior revocation or suspension.

B. The director may waive the requirements of subsection A, paragraph 2 of this section if the applicant holds certification as a speech-language pathology assistant from a nationally recognized speech-language hearing association approved by the department in the field for which the applicant is applying for licensure.

C. A speech-language pathology assistant may do the following under the supervision of a licensed speech-language pathologist:

1. Conduct speech and language screenings without interpretation, using screening protocols specified by the supervising speech-language pathologist.

2. Provide direct treatment assistance, including feeding for nutritional purposes to patients, clients or students except for patients, clients or students with dysphagia, identified by the supervising speech-language pathologist by following written treatment plans, individualized education programs, individual support plans or protocols developed by the supervising speech-language pathologist.

3. Document patient, client or student progress toward meeting established objectives as stated in the treatment plan, individual support plan or individualized education program without interpreting the findings and report this information to the supervising speech-language pathologist.

4. Assist the speech-language pathologist in collecting and tallying data for assessment purposes, without interpreting the data.

5. Act as a second-language interpreter during assessments.

6. Assist with informal documentation during an intervention session by collecting and tallying data as directed by the speech-language pathologist, preparing materials and assisting with other clerical duties as specified by the supervising speech-language pathologist.

7. Schedule activities and prepare charts, records, graphs or other displays of data.

8. Perform checks and maintenance of equipment.

9. Participate with the speech-language pathologist in research projects, in-service training and public relations programs.

10. Sign and initial treatment notes for review and cosignature by the supervising speech-language pathologist.

D. A speech-language pathology assistant shall not:

1. Conduct swallowing screening, assessment and intervention protocols, including modified barium swallow studies.

2. Administer standardized or nonstandardized diagnostic tests or formal or informal evaluations or interpret test results.

3. Participate in parent conferences, case conferences or any interdisciplinary team meeting without the presence of the supervising speech-language pathologist, except for individualized education program or individual support plan meetings if the licensed speech-language pathologist has been excused by the individualized education program team or the individual support plan team.

4. Write, develop or modify a patient's, client's or student's treatment plan, individual support plan or individualized education program in any way.

5. Provide intervention for patients, clients or students without following the treatment plan, individual support plan or individualized education program prepared by the supervising speech-language pathologist.

6. Sign any formal documents, including treatment plans, individual support plans, individualized education programs, reimbursement forms or reports.

7. Select patients, clients or students for services.

8. Discharge patients, clients or students from services.

9. Unless required by law, disclose clinical or confidential information orally or in writing to anyone not designated by the speech-language pathologist.

10. Make a referral for any additional service.

11. Communicate with the patient, client or student or with family or others regarding any aspect of the patient, client or student status without the specific consent of the supervising speech-language pathologist.

12. Claim to be a speech-language pathologist.

13. Write a formal screening, diagnostic, progress or discharge note.

14. Perform any task without the express knowledge and approval of the supervising speech-language pathologist.

E. All services provided by a speech-language pathology assistant shall be performed under the direction and supervision of a speech-language pathologist who is licensed pursuant to this chapter.

F. A licensed speech-language pathologist who supervises or directs the services provided by a speech-language pathology assistant shall:

1. Have at least two years of full-time professional experience as a licensed speech-language pathologist.

2. Provide direction and supervision to not more than two full-time or three part-time speech-language pathology assistants at one time.

3. Ensure that the amount and type of supervision and direction provided to a speech-language pathology assistant is consistent with the individual's skills and experience, the needs of the patient, client or student served, the setting in which services are provided and the tasks assigned and provide:

(a) At least twenty percent direct supervision and ten percent indirect supervision of all the time that the speech-language pathology assistant is providing services during the individual's first ninety days of employment. After the first ninety days of the speech-language pathology assistant's employment, the supervising speech-language pathologist may adjust the amount of supervision if the supervising speech-language pathologist determines that the speech-language pathology assistant meets appropriate competencies and skill levels regarding various disorders of communication and related disorders. Minimum ongoing supervision after the first ninety days shall include documentation of direct and indirect supervision provided by the supervising speech-language pathologist and shall include at least one hour of direct supervision weekly and as much indirect supervision as needed to maintain the delivery of quality services. Minimum ongoing supervision after the first ninety days shall include documentation by the supervising speech-language pathologist of the supervisor's direct contact with at least ten percent of the speech-language pathology assistant's patients, clients or students served each quarter. The supervising speech-language pathologist shall ensure that the ten percent direct client contact varies each quarter. The supervising speech-language pathologist shall require direct supervision of a speech-language pathology assistant when services are provided to a medically fragile individual.

(b) At least ten percent direct supervision and ten percent indirect supervision of all the time that the speech-language pathology assistant is providing services during the individual's first thirty days of employment if the speech-language pathology assistant completed supervision pursuant to subdivision (a) of this paragraph at a previous employer and provides documentation of that supervision to the supervising speech-language pathologist. After the first thirty days of the speech-language pathology assistant's employment, the supervising speech-language pathologist may adjust the amount of supervision if the supervising speech-language pathologist determines that the speech-language pathology assistant meets appropriate competencies and skill levels regarding various disorders of communication and related disorders. Minimum ongoing supervision after the first thirty days of employment shall include documentation of direct and indirect supervision provided by the supervising speech-language pathologist and shall include at least one hour of direct supervision weekly and as much indirect supervision as needed to maintain the delivery of quality services. Minimum ongoing supervision after the first ninety days shall include documentation by the supervising speech-language pathologist of the supervisor's direct contact with at least ten percent of the speech-language pathology assistant's patients, clients or students served each quarter. The supervising speech-language pathologist shall ensure that the ten percent direct client contact varies each quarter. The supervising speech-language pathologist shall require direct supervision of a speech-language pathology assistant when services are provided to a medically fragile individual.

4. Inform a patient, client or student when the services of a speech-language pathology assistant are being provided.

5. Document all periods of direct supervision and indirect supervision provided to a speech-language pathology assistant.

G. If more than one speech-language pathologist provides supervision to a speech-language pathology assistant, one of the speech-language pathologists shall be designated as the primary supervisor who is responsible for coordinating any supervision provided by other speech-language pathologists.

Article 4.1 Audiology and Speech-Language Pathology Compact

§ 36-1940.11 Audiologists and speech-language pathologists; compact

SECTION 1. PURPOSE

A. The purpose of this compact is to facilitate the interstate practice of audiology and speech-language pathology with the goal of improving public access to audiology and speech-language pathology services. The practice of audiology and speech-language pathology occurs in the state where the patient, client or student is located at the time of the patient, client or student encounter. The compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.

B. This compact is designed to achieve the following objectives:

1. Increase public access to audiology and speech-language pathology services by providing for the mutual recognition of other member state licenses.

2. Enhance the states' ability to protect the public's health and safety.

3. Encourage the cooperation of member states in regulating multistate audiology and speech-language pathology practice.

4. Support spouses of relocating active duty military personnel.

5. Enhance the exchange of licensure, investigative and disciplinary information between member states.

6. Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state's practice standards.

7. Allow for the use of telehealth technology to facilitate increased access to audiology and speech-language pathology services.

SECTION 2. DEFINITIONS

As used in this compact, and except as otherwise provided, the following definitions apply:

1. "Active duty military" means full-time duty status in the active uniformed service of the United States, including members of the national guard and reserve on active duty orders pursuant to 10 United States Code chapters 1209 and 1211.

2. "Adverse action" means any administrative, civil, equitable or criminal action allowed by a state's laws that is imposed by a licensing board or other authority against an audiologist or speech-language pathologist, including actions against an individual's license or privilege to practice such as revocation, suspension, probation, monitoring of the licensee or restriction on the licensee's practice.

3. "Alternative program" means a nondisciplinary monitoring process approved by an audiology or speech-language pathology licensing board to address impaired practitioners.

4. "Audiologist" means an individual who is licensed by a state to practice audiology.

5. "Audiology" means the care and services provided by a licensed audiologist as set forth in the member state's statutes and rules.

6. "Audiology and speech-language pathology compact commission" or "commission" means the national administrative body whose membership consists of all states that have enacted the compact.

7. "Audiology and speech-language pathology licensing board", "audiology licensing board", "speech-language pathology licensing board" or "licensing board" means the agency of a state that is responsible for licensing and regulating audiologists or speech-language pathologists, or both.

8. "Compact privilege" means the authorization granted by a remote state to allow a licensee from another member state to practice as an audiologist or speech-language pathologist in the remote state under its laws and rules. The practice of audiology or speech-language pathology occurs in the member state where the patient, client or student is located at the time of the patient, client or student encounter.

9. "Data system" means a repository of information about licensees, including continuing education, examination, licensure, investigative, compact privilege and adverse action.

10. "Encumbered license" means a license in which an adverse action restricts the practice of audiology or speech-language pathology by the licensee and the adverse action has been reported to the national practitioners data bank.

11. "Executive committee" means a group of directors elected or appointed to act on behalf of, and within the powers granted to them by, the commission.

12. "Home state" means the member state that is the licensee's primary state of residence.

13. "Impaired practitioner" means an individual whose professional practice is adversely affected by substance abuse, addiction or another health-related condition.

14. "Investigative information" means investigative information that a licensing board, after an inquiry or investigation that includes notification and an opportunity for the audiologist or speech-language pathologist to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction.

15. "Licensee" means an individual who currently holds an authorization from the state licensing board to practice as an audiologist or speech-language pathologist.

16. "Member state" means a state that has enacted the compact.

17. "Privilege to practice" means a legal authorization allowing the practice of audiology or speech-language pathology in a remote state.

18. "Remote state" means a member state other than the home state where a licensee is exercising or seeking to exercise the compact privilege.

19. "Rule" means a regulation, principle or directive promulgated by the commission that has the force of law.

20. "Single-state license" means an audiology or speech-language pathology license issued by a member state that authorizes practice only within the issuing state and does not include a privilege to practice in any other member state.

21. "Speech-language pathologist" means an individual who is licensed by a state to practice speech-language pathology.

22. "Speech-language pathology" means the care and services provided by a licensed speech-language pathologist as set forth in the member state's statutes and rules.

23. "State" means any state, commonwealth, district or territory of the United States that regulates the practice of audiology and speech-language pathology.

24. "State practice laws" means a member state's laws, rules and regulations that govern the practice of audiology or speech-language pathology, define the scope of audiology or speech-language pathology practice, and create the methods and grounds for imposing discipline.

25. "Telehealth" means the application of telecommunication technology to deliver audiology or speech-language pathology services at a distance for assessment, intervention or consultation.

SECTION 3. STATE PARTICIPATION IN THE COMPACT

A. A license issued to an audiologist or speech-language pathologist by a home state to a resident in that state shall be recognized by each member state as authorizing the audiologist or speech-language pathologist to practice audiology or speech-language pathology, under a privilege to practice, in each member state.

B. A state must implement or use procedures for considering the criminal history records of applicants for initial privilege to practice. These procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant's criminal history record information from the federal bureau of investigation and the agency responsible for retaining that state's criminal records, as follows:

1. A member state must fully implement a criminal background check requirement, within a time frame established by rule, by receiving the results of the federal bureau of investigation record search on criminal background checks and use the results in making licensure decisions.

2. Communication between a member state and the commission and among member states regarding the verification of eligibility for licensure through the compact shall not include any information received from the federal bureau of investigation relating to a federal criminal records check performed by a member state under Public Law 92-544.

C. On application for a privilege to practice, the licensing board in the issuing remote state shall ascertain, through the data system, whether the applicant has ever held, or is the holder of, a license issued by any other state, whether there are any encumbrances on any license or privilege to practice held by the applicant, and whether any adverse action has been taken against any license or privilege to practice held by the applicant.

D. Each member state shall require an applicant to obtain or retain a license in the home state and meet the home state's qualifications for licensure or renewal of licensure as well as all other applicable state laws.

E. An audiologist must meet all of the following requirements:

1. One of the following educational requirements:

(a) On or before December 31, 2007, graduated with a master's degree or doctorate in audiology, or an equivalent degree regardless of degree name, from a program that is accredited by an accrediting agency recognized by the council for higher education accreditation, or its successor, or by the United States department of education and operated by a college or university accredited by a regional or national accrediting organization recognized by the board.

(b) On or after January 1, 2008, graduated with a doctoral degree in audiology, or an equivalent degree, regardless of degree name, from a program that is accredited by an accrediting agency recognized by the council for higher education accreditation, or its successor, or by the United States department of education and operated by a college or university accredited by a regional or national accrediting organization recognized by the board.

(c) Graduated from an audiology program that is housed in an institution of higher education outside of the United States, and the program and institution have been approved by the authorized accrediting body in the applicable country and the degree program has been verified by an independent credentials review agency to be comparable to a state licensing board-approved program.

2. Completed a supervised clinical practicum experience from an accredited educational institution or its cooperating programs as required by the commission.

3. Successfully passed a national examination approved by the commission.

4. Hold an active, unencumbered license.

5. Not have been convicted or found guilty, and not have entered into an agreed disposition, of a felony related to the practice of audiology, under applicable state or federal criminal law.

6. Have a valid United States social security or national practitioner identification number.

F. A speech-language pathologist must meet all of the following requirements:

1. One of the following educational requirements:

(a) Graduated with a master's degree from a speech-language pathology program that is accredited by an organization recognized by the United States department of education and operated by a college or university accredited by a regional or national accrediting organization recognized by the board.

(b) Graduated from a speech-language pathology program that is housed in an institution of higher education outside of the United States, and the program and institution have been approved by the authorized accrediting body in the applicable country and the degree program has been verified by an independent credentials review agency to be comparable to a state licensing board-approved program.

2. Completed a supervised clinical practicum experience from an educational institution or its cooperating programs as required by the commission.

3. Completed a supervised postgraduate professional experience as required by the commission.

4. Successfully passed a national examination approved by the commission.

5. Hold an active, unencumbered license.

6. Not have been convicted or found guilty, and not have entered into an agreed disposition, of a felony related to the practice of speech-language pathology, under applicable state or federal criminal law.

7. Have a valid United States social security or national practitioner identification number.

G. The privilege to practice is derived from the home state license.

H. An audiologist or speech-language pathologist practicing in a member state must comply with the state practice laws of the state in which the client is located at the time service is provided. The practice of audiology and speech-language pathology shall include all audiology and speech-language pathology practices as defined by the state practice laws of the member state in which the client is located. The practice of audiology and speech-language pathology in a member state under a privilege to practice shall subject an audiologist or speech-language pathologist to the jurisdiction of the licensing board, the courts and the laws of the member state in which the client is located at the time service is provided.

I. Individuals not residing in a member state shall continue to be able to apply for a member state's single-state license as provided under the laws of each member state. However, the single-state license granted to these individuals shall not be recognized as granting the privilege to practice audiology or speech-language pathology in any other member state. This compact does not affect the requirements established by a member state for the issuance of a single-state license.

J. Member states may charge a fee for granting a compact privilege.

K. Member states must comply with the bylaws and rules and regulations of the commission.

SECTION 4. COMPACT PRIVILEGE

A. To exercise the compact privilege under the terms and provisions of the compact, the audiologist or speech-language pathologist shall:

1. Hold an active license in the home state.

2. Have no encumbrance on any state license.

3. Be eligible for a compact privilege in any member state in accordance with section 3 of this compact.

4. Not have had any adverse action against any license or compact privilege within the previous two years from date of application.

5. Notify the commission that the licensee is seeking the compact privilege within a remote state or remote states.

6. Pay any applicable fees, including any state fee, for the compact privilege.

7. Report to the commission any adverse action taken by any nonmember state within thirty days after the date the adverse action is taken.

B. For the purposes of the compact privilege, an audiologist or speech-language pathologist shall hold only one home state license at a time.

C. Except as provided in section 6 of this compact, if an audiologist or speech-language pathologist changes the person's primary state of residence by moving between two member states, the audiologist or speech-language pathologist must apply for licensure in the new home state, and the license issued by the prior home state shall be deactivated in accordance with applicable rules adopted by the commission.

D. The audiologist or speech-language pathologist may apply for licensure in advance of a change in primary state of residence.

E. A license shall not be issued by the new home state until the audiologist or speech-language pathologist provides satisfactory evidence of a change in primary state of residence to the new home state and satisfies all applicable requirements to obtain a license from the new home state.

F. If an audiologist or speech-language pathologist changes the person's primary state of residence by moving from a member state to a nonmember state, the license issued by the prior home state shall convert to a single-state license, valid only in the former home state.

G. The compact privilege is valid until the expiration date of the home state license. The licensee must comply with the requirements of subsection A of this section to maintain the compact privilege in the remote state.

H. A licensee providing audiology or speech-language pathology services in a remote state under the compact privilege shall function within the laws and regulations of the remote state.

I. A licensee providing audiology or speech-language pathology services in a remote state is subject to that state's regulatory authority. A remote state may, in accordance with due process and that state's laws, remove a licensee's compact privilege in the remote state for a specific period of time, impose fines and take any other necessary actions to protect the health and safety of its citizens.

J. If a home state license is encumbered, the licensee shall lose the compact privilege in any remote state until both of the following occur:

1. The home state license is no longer encumbered.

2. Two years have elapsed from the date of the adverse action.

K. Once an encumbered license in the home state is restored to good standing, the licensee must meet the requirements of subsection A of this section to obtain a compact privilege in any remote state.

L. Once the requirements of subsection J of this section have been met, the licensee must meet the requirements prescribed in subsection A of this section to obtain a compact privilege in a remote state.

SECTION 5. COMPACT PRIVILEGE TO PRACTICE TELEHEALTH

Member states shall recognize the right of an audiologist or speech-language pathologist who is licensed by a home state in accordance with section 3 of this compact and under rules promulgated by the commission to practice audiology or speech-language pathology in any member state via telehealth under a privilege to practice as provided in the compact and rules promulgated by the commission.

SECTION 6. ACTIVE DUTY MILITARY PERSONNEL OR THEIR SPOUSES

Active duty military personnel, or their spouse, shall designate a home state where the individual has a current license in good standing. The individual may retain the home state designation during the period the service member is on active duty. Subsequent to designating a home state, the individual shall change the individual's home state only through an application for licensure in the new state.

SECTION 7. ADVERSE ACTIONS

A. In addition to the other powers conferred by state law, a remote state shall have the authority, in accordance with existing state due process law, to:

1. Take adverse action against an audiologist's or speech-language pathologist's privilege to practice within that member state.

2. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing board in a member state for the attendance and testimony of witnesses or the production of evidence from another member state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which the witnesses or evidence are located.

3. Only the home state shall have the power to take adverse action against an audiologist's or speech-language pathologist's license issued by the home state.

B. For the purposes of taking adverse action, the home state shall give the same priority and effect to reported conduct received from a member state as it would if the conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.

C. The home state shall complete any pending investigations of an audiologist or speech-language pathologist who changes the individual's primary state of residence during the course of the investigations. The home state shall also have the authority to take appropriate action or actions and shall promptly report the conclusions of the investigations to the administrator of the data system. The administrator of the coordinated licensure information system shall promptly notify the new home state of any adverse actions.

D. If otherwise allowed by state law, the member state may recover from the affected audiologist or speech-language pathologist the costs of investigations and disposition of cases resulting from any adverse action taken against that audiologist or speech-language pathologist.

E. The member state may take adverse action based on the factual findings of the remote state, provided that the member state follows the member state's own procedures for taking the adverse action.

F. With respect to joint investigations:

1. In addition to the authority granted to a member state by its respective audiology or speech-language pathology practice act or other applicable state law, any member state may participate with other member states in joint investigations of licensees.

2. Member states shall share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under the compact.

G. If an adverse action is taken by the home state against an audiologist's or speech-language pathologist's license, the audiologist's or speech-language pathologist's privilege to practice in all other member states shall be deactivated until all encumbrances have been removed from the state license. All home state disciplinary orders that impose adverse action against an audiologist's or speech-language pathologist's license shall include a statement that the audiologist's or speech-language pathologist's privilege to practice is deactivated in all member states during the pendency of the order.

H. If a member state takes adverse action, it shall promptly notify the administrator of the data system. The administrator of the data system shall promptly notify the home state of any adverse actions by remote states.

I. This compact does not override a member state's decision that participation in an alternative program may be used in lieu of adverse action.

SECTION 8. ESTABLISHMENT OF THE AUDIOLOGY AND

SPEECH-LANGUAGE PATHOLOGY COMPACT COMMISSION

A. The compact member states hereby create and establish a joint public agency known as the audiology and speech-language pathology compact commission, to which the following apply:

1. The commission is an instrumentality of the compact states.

2. Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

3. Nothing in this compact shall be construed to be a waiver of sovereign immunity.

B. Membership, voting and meetings of the commission are as follows:

1. Each member state shall have two delegates selected by that member state's licensing board. The delegates shall be current members of the licensing board. One shall be an audiologist and one shall be a speech-language pathologist.

2. An additional five delegates, who are either public members or board administrators from a state licensing board, shall be chosen by the executive committee from a pool of nominees provided by the commission at large.

3. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.

4. The member state board shall fill any vacancy occurring on the commission within ninety days.

5. Each delegate shall be entitled to one vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission.

6. A delegate shall vote in person or by other means as provided in the bylaws. The bylaws may provide for delegates' participation in meetings by telephone or other means of communication.

7. The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.

C. The commission shall have the following powers and duties:

1. Establish the fiscal year of the commission.

2. Establish bylaws.

3. Establish a code of ethics.

4. Maintain its financial records in accordance with the bylaws.

5. Meet and take actions as are consistent with the provisions of this compact and the bylaws.

6. Promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules shall have the force and effect of law and shall be binding in all member states.

7. Bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any state audiology or speech-language pathology licensing board to sue or be sued under applicable law shall not be affected.

8. Purchase and maintain insurance and bonds.

9. Borrow, accept or contract for services of personnel, including employees of a member state.

10. Hire employees, elect or appoint officers, fix compensation, define duties, grant individuals appropriate authority to carry out the purposes of this compact, and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters.

11. Accept any appropriate donations and grants of monies, equipment, supplies, materials and services and receive, use and dispose of the same, provided that at all times the commission shall avoid any appearance of impropriety and conflict of interest.

12. Lease, purchase, accept appropriate gifts or donations of or otherwise own, hold, improve or use any property, whether real, personal or mixed, provided that at all times the commission shall avoid any appearance of impropriety.

13. Sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, whether real, personal or mixed.

14. Establish a budget and make expenditures.

15. Borrow monies.

16. Appoint committees, including standing committees composed of members and other interested persons as may be designated in this compact and the bylaws.

17. Provide and receive information from, and cooperate with, law enforcement agencies.

18. Establish and elect an executive committee.

19. Perform other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of audiology and speech-language pathology licensure and practice.

D. The executive committee shall have the power to act on behalf of the commission according to the terms of this compact. The executive committee shall be composed of ten members as follows:

1. Seven voting members who are elected by the commission from the current membership of the commission.

2. Two ex officio members, one of whom is a nonvoting member from a recognized national audiology professional association and one of whom is a nonvoting member from a recognized national speech-language pathology association.

3. One ex officio member who is a nonvoting member from the recognized membership organization of the audiology and speech-language pathology licensing boards.

E. The following pertain to the executive committee:

1. Ex officio members shall be selected by their respective organizations, and the commission may remove any member of the executive committee as provided in the bylaws.

2. The executive committee shall meet at least annually.

3. The executive committee shall have the following duties and responsibilities:

(a) Recommend to the entire commission changes to the rules or bylaws, this compact legislation, fees paid by compact member states such as annual dues and any commission compact fee charged to licensees for the compact privilege.

(b) Ensure that compact administration services are appropriately provided, contractual or otherwise.

(c) Prepare and recommend the budget.

(d) Maintain financial records on behalf of the commission.

(e) Monitor compact compliance of member states and provide compliance reports to the commission.

(f) Establish additional committees as necessary.

(g) Perform any other duties as provided in rules or bylaws.

F. All meetings of the commission shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions prescribed in section 10 of this compact.

G. The commission or the executive committee or other committees of the commission may convene in a closed, nonpublic meeting if the commission or executive committee or other committees of the commission must discuss any of the following:

1. Noncompliance of a member state with its obligations under this compact.

2. The employment, compensation, discipline or other matters, practices or procedures related to specific employees or other matters related to the commission's internal personnel practices and procedures.

3. Current, threatened or reasonably anticipated litigation.

4. Negotiation of contracts for the purchase, lease or sale of goods, services or real estate.

5. The accusation of any person of a crime or the formal censuring of any person.

6. The disclosure of trade secrets or commercial or financial information that is privileged or confidential.

7. The disclosure of information of a personal nature if the disclosure would constitute a clearly unwarranted invasion of personal privacy.

8. The disclosure of investigative records compiled for law enforcement purposes.

9. The disclosure of information related to any investigative reports prepared by or on behalf of or for use of the commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the compact.

10. Matters specifically exempted from disclosure by federal or member state statute.

H. If a meeting, or portion of a meeting, is closed pursuant to this section, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.

I. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

J. Financing of the commission is as follows:

1. The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

2. The commission may accept any appropriate revenue sources, donations and grants of monies, equipment, supplies, materials and services.

3. The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based on a formula to be determined by the commission, which shall promulgate a rule binding on all member states.

4. The commission shall not incur obligations of any kind before securing the monies adequate to meet the same, and the commission shall not pledge the credit of any of the member states, except by and with the authority of the member state.

5. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission are subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of monies handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

K. Qualified immunity, defense and indemnification are as follows:

1. The members, officers, executive director, employees and representatives of the commission are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities. This paragraph does not protect any person from suit or liability for any damage, loss, injury or liability caused by the intentional or wilful or wanton misconduct of that person.

2. The commission shall defend any member, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, provided that this paragraph shall not be construed to prohibit that person from retaining his or her own counsel, and provided further, that the actual or alleged act, error or omission did not result from that person's intentional or wilful or wanton misconduct.

3. The commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, if the actual or alleged act, error or omission did not result from the intentional or wilful or wanton misconduct of that person.

SECTION 9. DATA SYSTEM

A. The commission shall provide for the development, maintenance and use of a coordinated database and reporting system containing licensure, adverse action and investigative information on all licensed individuals in member states.

B. Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this compact applies as required by the rules of the commission, including:

1. Identifying information.

2. Licensure data.

3. Adverse actions against a license or compact privilege.

4. Nonconfidential information related to alternative program participation.

5. Any denial of an application for licensure and the reason or reasons for denial.

6. Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

C. Investigative information pertaining to a licensee in any member state shall be available only to other member states.

D. The commission shall promptly notify all member states of any adverse action taken against a licensee or an individual applying for a license. Adverse action information pertaining to a licensee in any member state shall be available to any other member state.

E. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

F. Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the data system.

SECTION 10. RULEMAKING

A. The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment.

B. If a majority of the legislatures of the member states rejects a rule, by enacting a statute or resolution in the same manner used to adopt the compact within four years after the date of adoption of the rule, the rule shall have no further force and effect in any member state.

C. Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

D. Before promulgation and adoption of a final rule or rules by the commission, and at least thirty days in advance of the meeting at which the rule shall be considered and voted on, the commission shall file a notice of proposed rulemaking both:

1. On the website of the commission or other publicly accessible platform.

2. On the website of each member state audiology or speech-language pathology licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.

E. The notice of proposed rulemaking shall include all of the following:

1. The proposed time, date and location of the meeting in which the rule shall be considered and voted on.

2. The text of the proposed rule or amendment and the reason for the proposed rule.

3. A request for comments on the proposed rule from any interested person.

4. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

F. Before the adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.

G. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by either:

1. At least twenty-five persons.

2. A state or federal governmental subdivision or agency.

3. An association having at least twenty-five members.

H. If a hearing is held on the proposed rule or amendment, the commission shall publish the place, time and date of the scheduled public hearing. If the hearing is held via electronic means, the commission shall publish the mechanism for access to the electronic hearing. Additionally:

1. All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing at least five business days before the scheduled date of the hearing.

2. Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.

3. All hearings shall be recorded. A copy of the recording shall be made available on request.

4. This section does not require a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

I. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

J. If no written notice of intent to attend the public hearing by interested parties is received, the commission may proceed with promulgation of the proposed rule without a public hearing.

K. The commission, by majority vote of all members, shall take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

L. On determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment or a hearing, provided that the usual rulemaking procedures provided in the compact and in this section shall be retroactively applied to the rule as soon as reasonably possible but not later than ninety days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately in order to do any of the following:

1. Meet an imminent threat to public health, safety, or welfare.

2. Prevent a loss of commission or member state monies.

3. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule.

M. The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision shall be subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chairperson of the commission before the end of the notice period. If no challenge is made, the revision shall take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

SECTION 11. OVERSIGHT, DISPUTE RESOLUTION AND ENFORCEMENT

A. Dispute resolution shall be as follows:

1. On request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states.

2. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

B. Enforcement shall be as follows:

1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

2. By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district where the commission has its principal offices against a member state in default to enforce compliance with the provisions of this compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing member state shall be awarded all costs of litigation, including reasonable attorney fees.

3. The remedies in this compact are not the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

SECTION 12. DATE OF IMPLEMENTATION OF THE INTERSTATE COMMISSION

FOR AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY PRACTICE AND

ASSOCIATED RULES, WITHDRAWAL AND AMENDMENT

A. This compact is effective on the date on which the compact statute is enacted into law in the tenth member state. The provisions, which become effective at that time, shall be limited to the powers granted to the commission relating to assembly and the promulgation of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to implement and administer this compact.

B. Any state that joins this compact after the commission's initial adoption of the rules is subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.

C. Any member state may withdraw from this compact by enacting a statute repealing the compact, as follows:

1. A member state's withdrawal shall not take effect until six months after enactment of the repealing statute.

2. Withdrawal shall not affect the continuing requirement of the withdrawing state's audiology or speech-language pathology licensing board to comply with the investigative and adverse action reporting requirements of this compact before the effective date of withdrawal.

D. This compact does not invalidate or prevent any audiology or speech-language pathology licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the provisions of this compact.

E. This compact may be amended by the member states. An amendment to this compact does not become effective and binding on any member state until it is enacted into the laws of all member states.

SECTION 13. CONSTRUCTION AND SEVERABILITY

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any member state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact is held contrary to the constitution of any member state, the compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.

SECTION 14. BINDING EFFECT OF COMPACT AND OTHER LAWS

A. This compact does not prevent the enforcement of any other law of a member state that is not inconsistent with this compact.

B. All laws in a member state in conflict with this compact are superseded to the extent of the conflict.

C. All lawful actions of the commission, including all rules and bylaws promulgated by the commission, are binding on the member states.

D. All agreements between the commission and the member states are binding in accordance with their terms.

E. If any provision of this compact exceeds the constitutional limits imposed on the legislature of any member state, the provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

Chapter 17.1 Commission for the Deaf and the Hard of Hearing

Article 1 In General

§ 36-1941 Definitions

In this chapter, unless the context otherwise requires:

1. "Commission" means the commission for the deaf and the hard of hearing.

2. "Deaf" means a person who cannot generally understand speech sounds with or without a hearing aid when in optimal listening conditions.

3. "Deafblind" means a person who is deaf or hard of hearing, who has a central visual acuity of 20/200 or less in the better eye with corrective lenses, or a field defect such that the peripheral diameter of visual field subtends an angular distance not greater than twenty degrees, or a progressive visual loss having a prognosis leading to one or both of these conditions, and for whom the combination of the hearing and vision loss described affects the person's ability to communicate and receive environmental information both visually and auditorily.

4. "Hard of hearing" means a person who has a degree of hearing loss greater than 40dB PTA-2, but less than 85dB PTA-2, in the better ear.

5. "Interpreting" means translating or transliterating English concepts to any necessary specialized vocabulary used by a consumer or translating a consumer specialized vocabulary to English concepts.

6. "Necessary specialized vocabulary" includes American sign language, English based sign language, cued speech and oral interpreting.

7. "PTA-2" means the average of hearing levels at one thousand, two thousand and four thousand Hz.

§ 36-1942 Commission for the deaf and the hard of hearing

A. The commission for the deaf and the hard of hearing is established consisting of the following members appointed by the governor:

1. One member who is selected from the department of economic security.

2. One member who is selected from the Arizona state schools for the deaf and the blind at Tucson or the Phoenix day school for the deaf.

3. One member who is a dispensing clinical audiologist licensed pursuant to chapter 17 of this title.

4. One member who is a hearing aid dispenser licensed pursuant to chapter 17 of this title.

5. Four members who are deaf persons.

6. One member who is a licensed sign language interpreter.

7. One member who is a parent of a deaf person.

8. Four members who are hard of hearing.

B. Commission members serve three years and may be reappointed once. The governor may remove a commission member for cause.

C. The commission shall meet at least four times a year at the call of the chairman, who shall be selected by the commission from among its membership.

D. Members of the commission are not eligible to receive compensation but are eligible to receive reimbursement of expenses pursuant to title 38, chapter 4, article 2.

§ 36-1943 Executive director; duties

A. Subject to title 41, chapter 4, article 4, the commission shall appoint an executive director who serves at the pleasure of the commission. Subject to title 41, chapter 4, article 4, the commission may employ other employees as necessary, determine their compensation pursuant to section 38-611 and prescribe their powers and duties. With the approval of the commission, the executive director may contract for professional, technical and clerical services necessary to carry out functions of the commission.

B. The executive director shall be a trained professional experienced in problems of the deaf and the hard of hearing and skilled in the use of manual communication, commonly referred to as sign language, and may be either a deaf person, a person who is hard of hearing or a person with normal hearing. The executive director shall assist the commission to implement its programs and activities and to implement this chapter. The executive director shall not be a commission member. The executive director is eligible to receive compensation set by the commission within the range determined pursuant to section 38-611.

§ 36-1944 Duties

The commission shall act as a bureau of information to the deaf, the hard of hearing and the deafblind, state agencies and institutions providing services to the deaf, the hard of hearing and the deafblind, local agencies of government and other public or private community agencies and programs. In this capacity, the commission shall:

1. Inform the deaf, the hard of hearing and the deafblind of the availability of the programs and activities of the commission and other services available for the deaf, the hard of hearing and the deafblind at all levels of government.

2. Develop and foster a framework for consultation and cooperation with the rehabilitation services bureau of the department of economic security and with all institutions represented on the commission.

3. Study issues relating to the deaf, the hard of hearing and the deafblind, review the administration and operation of the various programs for the deaf, the hard of hearing and the deafblind in this state and make recommendations concerning these problems and programs to the several agencies and institutions represented on the commission as it deems necessary.

4. Submit an annual report to the governor and the legislature concerning its findings and recommendations.

5. Review the problems of the deaf, the hard of hearing and the deafblind as they relate to the need for effective and appropriate auxiliary aids in public places.

6. Review and compile information on the development of acoustical technology for the hard of hearing and advocate the use of this technology if it deems appropriate.

7. Make recommendations to state agencies, political subdivisions and institutions on how to meet the needs of the deaf, the hard of hearing and the deafblind.

8. Make recommendations to the legislature regarding statutory changes needed:

(a) To develop and support statewide newborn child hearing loss screening programs.

(b) To develop and update assessment standards that optimize the language acquisition and literacy development of deaf and hard of hearing newborns, infants and children.

§ 36-1945 Commission for the deaf and the hard of hearing fund; gifts and donations; annual report

A. The commission for the deaf and the hard of hearing fund is established consisting of fees, penalties and any legislative appropriations. The commission shall administer the fund. Monies in the fund are subject to legislative appropriation.

B. The commission may accept and spend federal monies and private grants, gifts, contributions and devises to assist in carrying out the purposes of this chapter. These monies do not revert to the state general fund at the end of a fiscal year.

C. The commission shall submit an annual report to the governor on all monies accepted by the commission pursuant to subsection B, the names of the donors and the respective amounts contributed and the amount of all disbursements from the fund.

§ 36-1946 Interpreters for the deaf and the hard of hearing; certification; licensure

The commission shall:

1. Adopt rules necessary to achieve the purposes of section 12-242.

2. By rule, classify interpreters for the deaf and the hard of hearing based on the level of interpreting skills acquired by that person.

3. By rule, establish standards and procedures for the qualification and licensure of each classification of interpreters.

4. Help establish partnerships with colleges and universities in this state to provide interpreter and support service provider training and degree programs.

5. By rule, establish standards and procedures to certify sign language teachers to teach American sign language.

6. Beginning on September 1, 2007, license interpreters for the deaf and the hard of hearing pursuant to article 2 of this chapter.

§ 36-1947 Telecommunication devices for the deaf and the hearing and speech impaired; fund

A. The commission shall establish and administer a statewide program to purchase, repair and distribute telecommunication devices to residents of this state who are deaf or severely hearing or speech impaired and establish a dual party relay system making all phases of public telephone service available to persons who are deaf or severely hearing or speech impaired.

B. The commission may adopt administrative procedures, rules, criteria and forms to establish and administer the telecommunication device program under this section.

C. Telecommunication devices furnished by the commission under this section remain the property of this state. A person who receives a telecommunication device from the commission under this section is liable for the loss of or damage to the device. The commission may impose a civil penalty against the person in an amount equal to the cost of the device or the amount of damage done to the device. If a person objects to the imposition of a civil penalty, the commission shall conduct a hearing as prescribed in title 41, chapter 6, article 10. Monies collected by the commission under this subsection shall be deposited in the telecommunication fund for the deaf established by subsection D of this section.

D. The telecommunication fund for the deaf is established. The commission shall administer the fund. Monies in the fund shall be derived from the telecommunication services excise tax revenues distributed pursuant to section 42-5252, subsection B. Interest accruing to the fund shall be deposited in the fund. Monies in the fund are exempt from section 35-190 relating to lapsing of appropriations. Subject to legislative appropriation, the commission shall use fund monies to purchase and repair telecommunication devices, to administer the program established by this section and for the operating costs of the commission.

Article 2 Licensure

§ 36-1971 Licensure; acts and persons not affected

A. A person shall not practice as an interpreter for the deaf and the hard of hearing without a license issued pursuant to this article. The licensure requirements of this article also apply to interpreters who provide services for legal proceedings as prescribed in section 12-242.

B. The commission by rule shall prescribe education, examination and work history requirements for the following three categories of licenses:

1. Legal.

2. Generalist.

3. Provisional.

C. This article does not apply to:

1. An interpreter who works in this state for less than twenty days if that person registers with the commission to provide interpreting services in nonlegal situations.

2. An interpreter who provides interpreting services at religious activities.

3. An interpreter who provides interpreting services on an emergency basis if the delay necessary to obtain a licensed interpreter is likely to cause injury or loss to the consumer.

4. An interpreter who works without compensation in nonlegal situations.

5. An interpreter who works in a school in this state pursuant to the individual education plan of a deaf or hard of hearing pupil. The qualifications of an interpreter working in a school in this state shall be determined by the individualized education program team. A school district shall inform a parent or guardian of a deaf or hard of hearing pupil of the parent or guardian's right to request a licensed interpreter.

6. Activities and services of an interpreter intern or student in training if both of the following are true:

(a) The interpreter is enrolled in a program of study in interpreting at an accredited institution of higher learning.

(b) The interpreter works under the supervision of a person licensed pursuant to this article as part of a supervised program of study and is identified to all consumers as an interpreter intern or student in training.

§ 36-1972 Use of title; prohibited acts; violation; classification

A. A person who is not licensed pursuant to this article shall not:

1. Use any title, abbreviation, words, letters, signs or figures to indicate that the person is licensed pursuant to this chapter.

2. Practice as an interpreter for the deaf and the hard of hearing.

3. Use another person's license.

B. A person who violates this section is guilty of a class 2 misdemeanor.

§ 36-1973 Qualifications for licensure

A. To receive a license to practice as an interpreter pursuant to this article a person shall submit an application and application fee as prescribed by the commission.

B. The applicant shall document to the commission's satisfaction that the applicant has successfully completed the education, examination and work history requirements for the specific category of license for which the licensee is applying.

§ 36-1974 Issuance and renewal of license; continuing education

A. The executive director shall issue a license if the applicant has satisfied all of the requirements for licensure under this article.

B. A license issued pursuant to this article is subject to renewal one year after the date it was issued and terminates thirty days after the renewal date unless it is renewed.

C. Each licensee shall renew the license not earlier than sixty days before and not later than thirty days after the license expires by submitting the renewal fee and a completed renewal form. A licensee who does not renew a license as required by this article must also pay a penalty fee as prescribed by the commission for late renewal. A person who practices interpreting in this state after that person's license has expired is in violation of this article.

D. A person whose license terminates shall submit an application and application fee as an original applicant for licensure.

E. The commission by rule may prescribe continuing education requirements as a condition of license renewal.

§ 36-1975 Denial of licensure

The commission may refuse to issue or renew a license if the commission finds that any of the following is true:

1. The applicant committed fraud or misrepresentation in applying for a license in this state or another state.

2. The applicant was convicted of a felony offense or any other offense involving moral turpitude.

3. The applicant does not meet minimum qualifications as prescribed by this article.

4. The applicant was adjudicated insane or incompetent.

5. The applicant engaged in fraud, dishonesty or corruption on a certification examination in another state.

§ 36-1976 Revocation or suspension of license

A. The commission may revoke or suspend a license issued under this article, place a licensee on probation, issue a reprimand or impose a civil penalty for any of the following reasons:

1. Unprofessional conduct.

2. A violation of this article.

3. Gross negligence or incompetence in the performance of duties.

4. Fraud, dishonesty or corruption.

5. Inability to perform the duties of an interpreter at a level of skill that is required by the commission.

6. Conviction of a felony offense or any other offense involving moral turpitude.

7. Failing to meet minimum qualifications as prescribed by this article.

8. Adjudication of insanity or incompetency.

B. Before it takes disciplinary action pursuant to this section, the commission shall give a licensee notice and an opportunity for a hearing pursuant to its rules.

C. The commission may issue subpoenas, examine witnesses and administer oaths pursuant to a hearing held under this section.

§ 36-1977 Right to examine and copy evidence

In connection with a commission investigation conducted pursuant to section 36-1976, the commission at all reasonable times has the right to examine and copy any documents, reports, records or other physical evidence of any person being investigated or reports, records and any other documents maintained by and in the possession of any public or private agency if the commission believes this information is related to unprofessional conduct or the mental or physical ability of a licensee to practice pursuant to this article.

§ 36-1978 Injunctive relief; bond; service of process

A. In addition to all other available remedies, if the commission has any reason to believe that a person has violated this article or a commission rule, the commission through the attorney general or the county attorney of the county in which the violation is alleged to have occurred may apply to the superior court in that county for an injunction restraining that person from engaging in the violation.

B. The court shall issue a temporary restraining order, a preliminary injunction or a permanent injunction without requiring the commission to post a bond.

C. Service of process may be on the defendant in any county of this state where the defendant is found.

Chapter 18 Alcohol and Drug Abuse

Article 1 General Provisions

§ 36-2001 Addictive behavior services

The Arizona health care cost containment system administration shall establish services for addictive behavior, including alcohol abuse and drug abuse.

§ 36-2003 Powers and duties

A. The Arizona health care cost containment system administration may:

1. Accept grants, matching funds and direct payments from public or private agencies for the conduct of programs and activities.

2. Make contracts and incur obligations as are reasonably necessary to perform the duties and functions of addictive behavior services.

3. Employ and specify the duties of administrative, secretarial and clerical assistants, and contract for services of outside consultants, advisors and aides as are necessary to perform such duties and functions.

4. Use funds, facilities and services to provide matching contributions under federal or other programs that further the objectives and programs of the administration.

5. Make such rules as are necessary or desirable to carry out assigned responsibilities.

6. Provide for appropriate programs of treatment and rehabilitation consisting of halfway house treatment centers, detoxification centers, recovery centers and inpatient and outpatient and traveling clinics.

B. The Arizona health care cost containment system administration shall:

1. Provide for and implement a uniform training and educational program for persons who are associated with control of alcohol abuse and drug abuse, prevention, rehabilitation, treatment or enforcement. Only for the purpose of funding such training and educational programs, "alcohol abuse" and "drug abuse" shall be considered to be one and the same.

2. Formulate policies, plans and programs designed to effectuate the purposes of this article.

3. Stimulate and encourage all local, state, regional and federal governmental agencies, and all private persons and enterprises that have similar and related objectives and purposes, and cooperate with such agencies, persons and enterprises and correlate Arizona health care cost containment system plans, programs and operations with those of such agencies, persons and enterprises.

4. Conduct research on the administration's own initiative or at the request of the governor, the legislature or state or local agencies pertaining to any of the section objectives.

5. Provide information and advice on request by local, state and federal agencies and by private citizens and business enterprises on matters within the scope of section activities.

6. Advise with and make recommendations to the governor and the legislature on all matters concerning the administration's objectives.

7. Provide for an ongoing evaluation of the effectiveness of state and local services in the areas of alcohol and drug abuse prevention, treatment, rehabilitation, education and enforcement.

8. Evaluate and make recommendations on improving the coordination and cooperation between state and local agencies and programs for prevention, treatment, rehabilitation, enforcement and other areas of control of drug abuse and alcohol abuse.

9. Prepare a state plan or state plans to discharge assigned responsibilities. The plan or plans shall include programs for alcohol abuse control and drug abuse control.

§ 36-2004 Designation to administer state plan

The Arizona health care cost containment system is designated as the single state agency to develop and administer the state plans for alcohol and drug abuse and for alcoholism as provided in Public Law 91-616.

§ 36-2005 Substance abuse services fund; purpose; administration

A. The substance abuse services fund is established. The fund shall consist of monies collected pursuant to section 12-116.02 and distributed pursuant to section 36-2219.01.

B. Subject to legislative appropriation, the Arizona health care cost containment system administration shall administer the fund and may expend monies in the fund for administration of the fund and for alcohol and other drug screening, education or treatment for persons who have been ordered by the court to attend pursuant to sections 5-395.01, 8-343, 28-1381, 28-1382 and 28-1383 and who do not have sufficient financial ability to pay. Monies deposited pursuant to section 36-2219.01, subsection B, paragraph 4 are subject to legislative appropriation and shall be accounted for separately for use in administering section 36-141.

C. Monies in the substance abuse services fund are exempt from the provisions of section 35-190 relating to lapsing appropriations.

§ 36-2006 Department of health services monitoring of screening, education and treatment programs

A. The department of health services shall monitor the alcohol and other drug screening, education or treatment programs and facilities that are used pursuant to sections 5-395.01, 8-249, 28-1381, 28-1382 and 28-1383.

B. The department of health services shall:

1. Adopt rules establishing the standards for approval of alcohol and other drug screening, education and treatment facilities.

2. Approve alcohol and other drug screening, education and treatment facilities.

3. Adopt rules establishing the standards for referrals to alcohol and other drug screening, education and treatment facilities.

4. Establish a standardized screening assessment.

5. Establish reporting and record keeping requirements for alcohol and other drug screening, education and treatment facilities.

Article 2 Evaluation and Treatment of Persons Impaired by Alcoholism

§ 36-2021 Definitions

In this chapter, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Alcoholic" means a person who habitually lacks self-control with respect to the use of alcoholic beverages or who uses alcoholic beverages to the extent that the person's health is substantially impaired or endangered or social or economic functions are substantially disrupted.

3. "Approved private treatment facility" means a private agency meeting the standards established by the department and approved pursuant to sections 36-2023 and 36-2029.

4. "Approved public treatment facility" means a treatment agency operating under the directions and control of a county, providing treatment through a contract with a county, meeting the standards established by the department and approved pursuant to sections 36-2023 and 36-2029.

5. "Chronic alcoholic" means an alcoholic who is incapacitated by alcohol and who during the preceding twelve months has been admitted to a local alcoholism reception center on ten or more occasions or has been admitted for three or more episodes of inpatient or residential alcoholism treatment.

6. "Court" means the supreme court, the court of appeals, a superior court, a justice of the peace court, a municipal court or a city court authorized by charter.

7. "Department" means the department of health services.

8. "Director" means the director of the administration.

9. "Evaluation" means a multidisciplinary professional analysis of a person's medical, psychological, social, financial and legal conditions. Persons providing evaluation services shall be properly qualified professionals and may be full-time employees of an approved treatment facility providing evaluation services or may be part-time employees or may be employed on a contractual basis.

10. "Incapacitated by alcohol" means that a person as a result of the use of alcohol is unconscious or has judgment otherwise so impaired that the person is incapable of realizing and making a rational decision with respect to the person's need for evaluation and treatment, is unable to take care of basic personal needs or safety such as food, clothing, shelter or medical care or lacks sufficient understanding or capacity to make or communicate rational decisions.

11. "Intoxicated person" means a person whose mental or physical functioning is substantially impaired as a result of the immediate effects of alcohol in the person's system.

12. "Local alcoholism reception center" or "center" means an initial reception agency for a person who is intoxicated or who is incapacitated by alcohol to receive initial evaluation and processing for assignment for further evaluation or into a treatment program.

13. "Treatment" means the broad range of emergency, outpatient, intermediate and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological and social service care, vocational rehabilitation and career counseling, which may be extended to alcoholics and intoxicated persons.

§ 36-2022 Establishment of facilities

A. The administration shall develop, encourage and foster statewide, county and local plans and programs for the prevention of alcoholism and treatment of alcoholics and intoxicated persons in cooperation with public and private agencies, organizations and individuals and provide technical assistance and consultation services for these purposes.

B. Counties may establish a public treatment facility or facilities for the evaluation and treatment of alcoholics and intoxicated persons by resolution of the board of supervisors.

C. Counties may contract with other counties for the services of a public treatment facility or may contract with a private treatment facility.

§ 36-2023 Rules

A. The department shall adopt and enforce rules to establish standards for approved public and private treatment facilities that must be met for a treatment facility to be approved. The department periodically shall inspect approved facilities at reasonable times and in a reasonable manner. Each approved public and private treatment facility shall file with the department on request information the department requires pursuant to rule. The department shall remove from the list of approved treatment facilities a facility that without good cause fails to furnish information as requested or that files fraudulent information.

B. The department in compliance with subsection A of this section shall adopt and may amend or repeal rules for the acceptance of persons into a treatment program, in light of the available treatment resources and facilities, with a view to the early and effective provision of evaluation and treatment for alcoholics and intoxicated persons. In establishing the rules, the department shall be guided by the following standards:

1. An intoxicated person or person incapacitated by alcohol, who voluntarily seeks treatment or who is transported to an approved facility by a peace officer or other person, shall be initially brought to and evaluated at a local alcoholism reception center.

2. A person shall receive an initial evaluation.

3. A patient shall be initially assigned or transferred to outpatient treatment or intermediate treatment, unless the person is found to require inpatient treatment.

4. A person shall not be denied treatment solely because the person has withdrawn from treatment against medical advice on a prior occasion or because the person has relapsed after earlier treatment.

5. An individualized treatment plan shall be prepared and maintained on a current basis for each patient.

6. Provision shall be made for a continuum of coordinated treatment services, so that a person who leaves the facility or another form of treatment will have available and use other appropriate treatment.

C. The administration shall:

1. Enlist the assistance of all public and private agencies, organizations and individuals engaged in the prevention of alcoholism and treatment of alcoholics and intoxicated persons at approved public and private facilities.

2. Cooperate with the state department of corrections in establishing and conducting programs to provide treatment for alcoholics in penal institutions and alcoholics on parole or community supervision from penal institutions at approved public and private facilities.

3. Cooperate with the department of education, schools, police departments, courts and other public and private agencies, organizations and individuals in establishing programs for the prevention of alcoholism and treatment of alcoholics and intoxicated persons and in preparing curriculum materials for use at all levels of school education.

4. Specify a uniform method for keeping statistical information by approved public and private treatment facilities and collect and make available relevant statistical information, including the number of persons treated, frequency of admission, and readmission and frequency and duration of treatment.

5. Cooperate with the department of transportation in establishing and conducting programs designed to deal with the problem of persons operating motor vehicles while intoxicated.

6. Prepare an annual report on drug abuse treatment programs in this state that receive monies from the administration to be submitted by January 1 of each year to the governor, the president of the senate and the speaker of the house of representatives and to be made available to the general public through the Arizona drug and gang prevention resource center. The report shall include:

(a) The name and location of each program.

(b) The amount and sources of funding for each program.

(c) The number of clients who received services during the preceding fiscal year.

(d) A description of the demographic characteristics of the client population served by each program, including age groups, gender and ethnicity.

(e) A description of client problems addressed by the programs, including the types of substances abused.

(f) A summary of the numbers and types of services available and provided during the preceding fiscal year.

(g) An evaluation of the results achieved by the programs.

§ 36-2024 Treatment of alcoholics

A. An alcoholic may apply for evaluation and treatment directly to any approved public or private treatment facility. If the applicant is a minor or incompetent person, either the applicant or a parent, legal guardian or other legal representative of the applicant shall apply for evaluation and treatment.

B. Subject to rules adopted by the department, the administrator in charge of any approved public or private treatment facility may determine who shall be admitted for evaluation and treatment. If a person is refused admission to an approved private treatment facility because of financial reasons, the administrator in charge, subject to rules established by the department, shall refer the person to an approved public treatment facility for treatment, if possible and appropriate.

C. If a patient who is receiving inpatient care leaves an approved treatment facility, the patient shall be encouraged to consent to appropriate outpatient treatment or intermediate treatment.

§ 36-2025 Treatment and services for intoxicated persons and persons incapacitated by alcohol

A. An intoxicated person may come voluntarily to an approved local alcoholism reception center for emergency alcoholism treatment.

B. A person who voluntarily comes or is brought to a local alcoholism reception center and is in need of immediate medical treatment shall be referred to an approved treatment facility and shall be examined by a licensed physician as soon as possible and may be admitted as a patient or referred to another approved treatment facility or program.

C. A person who is not admitted to an approved local alcoholism reception center and who is not referred to an approved treatment facility or program and who has no funds may be taken to his home by personnel at the local alcoholism reception center. If he has no home, the approved local alcoholism reception center personnel shall assist him in obtaining shelter.

D. If the patient is admitted to an approved local alcoholism reception center for initial evaluation and processing, his family or next of kin shall be notified as promptly as possible. If an adult patient who is not incapacitated by alcohol requests that there be no notification, his request shall be respected.

E. If the administrator in charge of the approved local alcoholism reception center determines that it is for the patient's benefit, the patient shall be encouraged to agree to assignment for further evaluation or to agree to assignment into a treatment program.

§ 36-2026 Emergency admission

A. A publicly intoxicated person may be brought by a peace officer or any other person to an approved local alcoholism reception center for emergency evaluation and treatment if the intoxicated person:

1. Has threatened, attempted or inflicted physical harm on self or others, and is likely to inflict physical harm on self or others unless admitted.

2. Is incapacitated by alcohol.

B. A peace officer who has reasonable cause to believe that a person is intoxicated in a public place and that the person is or may be a danger to self or others may transport the person to a local alcoholism reception center. Unnecessary or unreasonable force shall not be used in transporting the person, and the person shall not be subjected to any greater restraint than is necessary to transport the person to the local alcoholism reception center.

C. A peace officer who has reasonable cause to believe that a person is intoxicated in a public place or a place open to the public, that the person is or may be a danger to self or others and that there is no responsible person immediately available to assist the intoxicated person may transport the person to a detention facility if both of the following apply:

1. A local alcoholism reception center or other approved facility is not available within ten miles or the peace officer has determined that the local alcoholism reception center or other approved facility is filled to capacity and has no further capacity at the present time to provide evaluation and treatment services to additional persons.

2. The peace officer has been informed by the governing body of the city or town or the board of supervisors of the county in which the peace officer is employed that the department has determined that the city, town or county has made a reasonable effort to provide adequate local alcoholism reception services for persons incapacitated by alcohol and, based on that determination, has issued a renewable three-month temporary waiver to allow the transportation of certain intoxicated persons in the city, town or county to detention facilities pursuant to this section. The determination may be made by the director of the department on application by the governing body of the city or town or the board of supervisors of a county.

D. An intoxicated person who is received or accepted by a local alcoholism reception center or detention facility shall not be subject to unnecessary or unreasonable force. The local alcoholism reception center or detention facility shall use such methods and exercise such restraint of the intoxicated person as is reasonably necessary for the safety of the person and others and consistent with this section.

E. The administrator in charge of an approved local alcoholism reception center shall discharge any person admitted pursuant to this section not more than twenty-four hours, excluding weekends and holidays, after the person requests to be discharged or after the administrator on advice of the medical staff determines that the grounds for admission no longer exist.

F. Any person who is transported to a detention facility pursuant to this section may be held in protective custody until the person is no longer intoxicated, until released to a responsible person or for a period not exceeding twelve hours, whichever occurs first.

G. Any person who is released from protective custody pursuant to this section may be transported at that person's request to a local alcoholism reception center or approved facility for evaluation and treatment if such facilities are available.

H. A person who is held in protective custody pursuant to this section is not considered to have been arrested or to have been charged with any crime and may not be fingerprinted or photographed for any reason.

§ 36-2027 Evaluation and treatment of persons charged with a crime

A. A court may order an evaluation and treatment at an approved treatment facility of a person who is brought before the court and charged with a crime if:

1. It appears that such person is an alcoholic, and

2. Such person, after being advised of his privilege to undergo evaluation and treatment, chooses the evaluation and treatment procedures. The court shall in no event order the person to undergo treatment and evaluation for in excess of thirty days.

B. The court shall fully apprise the person charged with the crime of the options available and the consequences which may occur.

C. The person charged with the crime has the right to legal counsel at proceedings held pursuant to this section.

D. If the court issues an order for evaluation and treatment as provided in this section, proceedings on the criminal charge or charges then pending in the court from which the order for evaluation and treatment issued shall be suspended until such time as the evaluation and treatment of the defendant and the subsequent detention of the defendant, if any, are completed. Upon completion of the evaluation and treatment, and detention, if any, the defendant shall be returned to the court where the order for evaluation and treatment was made and proceedings on the criminal charge or charges shall be resumed or dismissed. No charge or charges shall be dismissed based on defendant's failure to receive a speedy trial.

E. The cost of evaluation and treatment of an indigent patient treated pursuant to court order shall be a charge to the county, city, town or charter city whose court issued the order for evaluation.

§ 36-2028 Payment for treatment; financial ability of patient or guardian

A. A patient who is being treated by an approved treatment facility or the estate of the patient, or a person who is obligated to provide the cost of the evaluation and treatment and having sufficient financial ability, is liable to the approved treatment facility for the cost of evaluation and treatment of the patient. For a person who is determined to be eligible for coverage through the Arizona health care cost containment system, financial liability shall be established in accordance with the rules established by the administration.

B. The administration shall adopt rules governing financial ability that take into consideration the income, savings and other personal and real property of the person required to pay as well as any support being furnished by that person to any person as required by law. The rules shall comply with applicable federal requirements for cost sharing.

C. Each approved treatment facility shall furnish the administration with such information as it requires to enable it to establish and maintain a cost reporting system of the cost of the evaluation and treatment. Each approved treatment facility shall ensure that records are maintained containing such information and in such form as the administration requires for the purposes of this section.

D. The administration shall prepare and adopt patient fee schedules to be used by approved treatment facilities for services rendered to each patient who is determined to be eligible for coverage through the Arizona health care cost containment system and who is afflicted with alcoholism. In preparing patient fee schedules, the administration shall take into account the existing charges for available services. The administration is not prohibited from including the amount of expenditures for capital outlay in its determination of the fee schedules.

§ 36-2029 Funding of facilities; contracts; limitations

A. The administration may use municipal, county, state and federal monies appropriated or otherwise available for the evaluation and treatment of alcoholics to assist in the establishment and maintenance of approved public or private treatment facilities. The monies may be expended for professional fees for services at an approved treatment facility or in contract for advancement or reimbursement of services provided at an approved treatment facility or any other appropriate manner and may be used for any purpose necessary to provide evaluation and treatment at approved treatment facilities. These monies may not be used for salaries or any other purpose within the administration but may be used for consultation services in the interest of approved treatment facilities.

B. A public or private treatment facility providing or intending to provide evaluation and treatment and desiring to contract with the administration for the furnishing of such services shall submit a program, plan and budget to the administration on the forms and in the manner required by the administration. If such a facility is approved, the administration may contract with the facility for services as required and on such terms and conditions as the administration requires.

C. Each approved treatment facility shall provide the administration with a record of all federal, state, county, city and private monies received for the previous year and an estimate of monies to be received by the facility for the following year.

D. An approved private or public treatment facility providing evaluation and treatment may receive state funding on complying with the rules established by the department. Any such facility is not eligible for state funding until approved by the administration.

E. This article does not place on the administration or the state any liability for the well-being and care of alcoholics or persons incapacitated by alcohol in a public or private treatment facility or the responsibility for funding such programs beyond the limits of legislative appropriation therefor.

§ 36-2030 Immunity from criminal or civil liability

A peace officer, administrator in charge of an approved treatment facility, or any person who in good faith acts in compliance with this article shall not be criminally or civilly liable.

§ 36-2031 Criminal laws limitations

A. No county, municipality or other political subdivision may adopt or enforce any local law, ordinance, resolution or rule having the force of law that includes being a common drunkard or being found in an intoxicated condition as one of the elements of the offense giving rise to criminal or civil penalty or sanctions, but nothing in this article shall affect any laws, ordinances, resolutions or rules against drunken driving, driving under the influence of alcohol or other similar offenses involving the operation of vehicles, aircraft, boats, machinery or other equipment, or regarding the sale, purchase, dispensing, possessing or using of alcoholic beverages at stated times and places or by particular classes of persons.

B. No county, municipality or other political subdivision may interpret or apply any law of general application to circumvent the provision of subsection A.

Article 3 Drug Detoxification and Maintenance Standards

§ 36-2051 Definition of federal act

In this article, "federal act" means the drug abuse office and treatment act of 1972 and regulations adopted pursuant to that act.

§ 36-2052 Designation of state agency

The administration is designated as the state authority for the purposes of exercising authority under the federal act.

Article 4 Sober Living Homes

§ 36-2061 Definitions

In this article, unless the context otherwise requires:

1. "Assistance or activity directed toward recovery from any substance use disorder" includes a supervised, monitored or peer-led environment directed toward recovery from any substance use disorder.

2. "Certifying organization" means an organization that certifies homes as sober living homes and that is affiliated with a national organization approved by the department whose primary function is to improve access to and the quality of sober living residences through standards, education, research and advocacy.

3. "Close friend" means any individual whose close association with the person is the equivalent of a family relationship.

4. "License" means a license issued by the director pursuant to this article.

5. "Medication-assisted treatment" means the use of pharmacological medications that are approved by the United States food and drug administration, in combination with counseling and behavioral therapies, to provide a whole patient approach to treating substance use disorders.

6. "Service or treatment directed toward recovery from any substance use disorder" includes providing or arranging transportation to or from any service, treatment or activity directed toward recovery from any substance use disorder.

7. "Sober living home":

(a) Means any premises, place or dwelling unit, or any person that provides any premises, place or dwelling unit, that may provide verification of abstinence and that does at least one of the following:

(i) Provides alcohol-free and drug-free housing in a supervised, monitored or peer-led environment for individuals who are in recovery or seeking recovery from any substance use disorder.

(ii) Advertises, markets, holds itself out or otherwise implies through any means, including oral, written, electronic or printed means, that it provides or will provide a living environment directed toward recovery from any substance use disorder, including housing that provides or arranges for residents to receive any assistance or activity directed toward recovery from any substance use disorder and housing that arranges for residents to receive any service or treatment directed toward recovery from any substance use disorder.

(b) Does not include:

(i) Any premises, place or dwelling unit that is licensed to provide on-site medical services, behavioral health services or medication administration.

(ii) Any person who provides any premises, place or dwelling unit directed toward recovery from any substance abuse disorder exclusively to residents who are related to the person by affinity or consanguinity of the first or second degree, a person who is a close friend of the person for whom the person serves as a legal guardian, and the person is not operating the premises, place or dwelling unit as a business and does not require, collect or receive any form of compensation for profit from the residents, including insurance or rent.

(iii) Any housing for persons in recovery from substance use disorders that is self-run, self-supported, alcohol and drug free, chartered and monitored by a nationally recognized nonprofit credentialing entity, established in accordance with 42 United States Code section 300x-25 and held to the standards of that nationally recognized nonprofit credentialing entity.

(c) Beginning on the effective date of the rules for licensure adopted pursuant to sections 36-4202 and 36-4204, does not include a transitional housing facility as defined in section 36-4201.

§ 36-2062 Licensure required; standards; administrative clearance from local jurisdiction; use of title

A. The director shall adopt rules to establish minimum standards and requirements for the licensure of sober living homes in this state necessary to ensure the public health, safety and welfare. The director may use the current standards adopted by any recognized national organization approved by the department as guidelines in prescribing the minimum standards and requirements under this subsection. The standards shall include:

1. A requirement that each sober living home develop policies and procedures to allow individuals who are on medication-assisted treatment to continue to receive this treatment while living in the sober living home.

2. Consistent and fair practices for drug and alcohol testing, including frequency, that promote the residents' recovery.

3. Policies and procedures to meet the requirement that the sober living home maintain an environment that promotes the recovery, health and safety of residents and the safety of the surrounding neighborhood and the community at large.

4. Policies and procedures for discharge planning of persons living in the sober living home that do not negatively impact the surrounding community, including policies and procedures to be implemented if the sober living home's license is suspended or revoked.

5. A good neighbor policy to address neighborhood concerns and complaints.

6. A requirement that the operator of each sober living home have available for emergency personnel an up-to-date list of current medications and medical conditions of each person living in the sober living home.

7. A policy that ensures residents are informed of all sober living home rules, residency requirements and resident agreements.

8. Policies and procedures for managing all monies received and spent by the sober living home in accordance with standard accounting practices, including monies received from residents of the sober living home.

9. A requirement that each sober living home post a statement of resident rights that includes the right to file a complaint about the sober living home or provider and information about how to file a complaint.

10. Policies that promote recovery by requiring residents to participate in treatment, self-help groups or other recovery supports.

11. Policies and procedures that require the sober living home to maintain an environment that is free from alcohol and illegal substances at all times and that require abstinence from alcohol and illicit drugs.

12. Procedures regarding the appropriate use and security of medication by a resident.

13. Policies regarding the maintenance of sober living homes, including the installation of functioning smoke detectors, carbon monoxide detectors and fire extinguishers and compliance with local fire codes and rules applicable to comparable dwellings occupied by single families.

14. Policies and procedures that prohibit a sober living home owner, employee or administrator from requiring a resident to sign any document for the purpose of relinquishing the resident's public assistance benefits, including medical assistance benefits, cash assistance and supplemental nutrition assistance program benefits.

15. Policies and procedures for managing complaints about sober living homes.

16. Policies and procedures for notifying the department and a family member or other emergency contact designated by a resident under certain circumstances, including death, permanent or severe harm and overdose.

17. Policies and procedures for providing activities that promote independent living and life skills development.

18. Policies and procedures for providing activities directed primarily toward recovery from substance use disorders.

B. The licensure of a sober living home under this article is for one year.

C. To receive and maintain licensure, a sober living home must comply with all federal, state and local laws, including the Americans with disabilities act of 1990. The sober living home shall obtain and maintain current documentation from the local jurisdiction verifying compliance with all local zoning, building, fire and licensing ordinances and rules. The sober living home shall provide documentation to the department on request, in the application for an initial license and when requesting approval for any proposed change in the maximum number of residents or any construction of or modification to the sober living home. The department shall identify on each license the maximum number of residents who are allowed to live in the sober living home, including any manager or other staff living on the premises.

D. A treatment facility that is licensed by the department to treat substance use disorders and that has one or more sober living homes on the same campus as the facility's program shall obtain licensure for each sober living home pursuant to this article.

E. A person shall not establish, conduct or maintain in this state a sober living home unless that person holds a current and valid license issued by the department. The license is valid only for the establishment, operation and maintenance of the sober living home. The licensee shall not:

1. Imply by advertising or directory listing or otherwise imply that the licensee is authorized to perform services more specialized or of a higher degree of care than is authorized by this article and the adopted rules for sober living homes.

2. Transfer or assign the license. A license is valid only for the premises occupied by the sober living home at the time of its issuance.

§ 36-2062.01 Legislative findings and intent; substantial compliance; definition

A. The legislature recognizes the need to protect both people who are in recovery and the public from unscrupulous and incompetent operators of sober living homes and therefore finds and determines that substantial compliance with and enforcement of the requirements prescribed in section 36-2062 are necessary and required to ensure the public health, safety and welfare.

B. For the purposes of this section, "substantial compliance" means that the nature or number of violations revealed by any type of inspection or investigation of a sober living home does not pose a direct risk to the life, health or safety of the sober living home's residents.

§ 36-2063 Fees; licensure and renewal; inspections; complaints; investigations; penalties and sanctions; third-party contractors

A. The department shall establish fees for initial licensure and license renewal of a sober living home and a fee for the late payment of licensing fees that includes a grace period. The department shall deposit, pursuant to sections 35-146 and 35-147, ninety percent of the fees collected pursuant to this section in the health services licensing fund established by section 36-414 and ten percent of the fees collected pursuant to this section in the state general fund.

B. On a determination by the director that there is reasonable cause to believe a sober living home is not adhering to the requirements of this article or the rules adopted pursuant to this article, the director and any duly designated employee or agent of the director may enter on and into the premises of any sober living home that is licensed or required to be licensed pursuant to this article at any reasonable time for the purpose of determining the state of compliance with this article, the rules adopted pursuant to this article and local fire ordinances or rules. Any application for licensure or license renewal under this article constitutes permission for and complete acquiescence in any entry or inspection of the premises during the pendency of the license application or license renewal and, if licensed, during the term of the license.

C. Except as provided in section 36-2064, The department or its third-party contractor shall conduct a physical, on-site inspection of a sober living home to verify compliance with the requirements of this article and the rules adopted pursuant to this article at the following times:

1. Before issuing an initial license or approving any proposed change in the maximum number of residents or any construction of or modification to a sober living home. Applicants are not allowed to self-attest to compliance in lieu of this inspection.

2. At least annually for each sober living home.

3. On a determination by the director that there is reasonable cause to believe that a sober living home is not adhering to the requirements of this article or the rules adopted pursuant to this article.

4. On notification by a sober living home pursuant to subsection K of this section that the sober living home believes it is in substantial compliance with this article and the rules adopted pursuant to this article.

D. After receiving a complaint that identifies an alleged violation of this article or the rules adopted pursuant to this article, the department or its third-party contractor shall investigate the sober living home that is the subject of the complaint and shall conduct a physical inspection if requested by local law enforcement or if the director determines that there is reasonable cause to believe the sober living home is not adhering to the requirements of this article or the rules adopted pursuant to this article.

E. If an investigation or inspection of a sober living home reveals that a person has violated this article or the rules adopted pursuant to this article, the director may impose a civil penalty of not more than $1,000 for each violation, which may be assessed for each resident or person who the department determines was impacted by the violation. A person operating a sober living home in this state that has failed to obtain or maintain licensure of the sober living home shall pay an additional civil penalty of up to $1,000 for each violation. Each day that a violation occurs constitutes a separate violation. The director may issue a notice that includes the proposed amount of the civil penalty assessment. If a person requests a hearing to appeal an assessment, the director shall not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days for which the violation has been documented by the department.

F. In determining the amount of the civil penalty pursuant to subsection E of this section, the department shall consider all of the following:

1. Repeated violations of statutes or rules.

2. Patterns of noncompliance.

3. Types of violations.

4. The severity of violations.

5. The potential for and occurrences of actual harm, including to the sober living home's staff or residents.

6. Threats to health and safety, including to the sober living home's staff or residents.

7. The number of persons affected by the violations.

8. The number of violations.

9. The size of the facility.

10. The length of time that the violations have been occurring.

G. If a licensed or unlicensed sober living home has a business relationship with a person or entity that is found to be engaging in fraudulent, abusive or misleading health care-related practices, the sober living home is subject to civil penalties pursuant to this section, including license suspension or revocation. Each day a violation occurs constitutes a separate violation.

H. Subject to title 41, chapter 6, article 10, except as provided in subsection J of this section, the director may deny, revoke or suspend a sober living home license if any owner, officer, agent or employee of the sober living home does any of the following:

1. Violates this article or the rules adopted pursuant to this article.

2. Commits a felony under the laws of any state or of the United States arising out of or in connection with the operation of a sober living home. The record of conviction or a copy of the record certified by the clerk of the court or by the judge who sentenced the person is conclusive evidence of conviction.

3. Knowingly aids, allows or abets the submission of false or inaccurate information required by this article or the rules adopted pursuant to this article.

4. Violates the requirements for licensure of the sober living home pursuant to this article.

I. If a licensee or any owner, officer, agent or employee of a sober living home refuses to allow the department or its employee or agent to inspect the sober living home's premises, that action shall be deemed reasonable cause to believe that a substantial violation of subsection H, paragraph 1 of this section exists.

J. If the director reasonably believes that a violation of subsection H of this section has occurred and that the life or safety of the sober living home's residents or staff or the public is immediately threatened or affected, on written notice to the owner or agent of the sober living home, the director may order one or more of the following intermediate sanctions until the sober living home is in substantial compliance with this article and the rules adopted pursuant to this article:

1. The immediate restriction of the acceptance and reacceptance of residents to the sober living home.

2. The selected transfer of residents out of the sober living home.

3. The reduction of the sober living home's capacity.

4. The termination of any specific service, policy, procedure or practice of the sober living home.

K. A sober living home that is sanctioned pursuant to subsection J of this section shall notify the department in writing when the sober living home believes it is in substantial compliance with this article and the rules adopted pursuant to this article. On receipt of this notification the department shall conduct an inspection. If the department determines that the sober living home is in substantial compliance, the director shall immediately rescind the sanction or sanctions. If the department determines that the sober living home is not in substantial compliance, the sanction or sanctions shall remain in effect. At least fourteen days after the date of the inspection, the sober living home may again notify the department that the sober living home is in substantial compliance and the department shall conduct another inspection. If the department determines on the repeat inspection that the sober living home is still not in substantial compliance, the sanction or sanctions shall remain in effect. The sober living home may notify the department of substantial compliance not sooner than thirty days after the date of the last inspection. The sober living home shall make all notifications of substantial compliance by certified mail. The department shall conduct all inspections required by this subsection within fourteen days after receiving a notification of substantial compliance. If the department does not conduct an inspection within this time period, the sanction or sanctions have no further effect.

L. A licensee that is subject to an intermediate sanction ordered by the director pursuant to subsection J of this section may request a hearing to review the director's action. The licensee shall make this request in writing with the office of administrative hearings within ten days after receiving notice of the director's action. The office of administrative hearings shall conduct an administrative hearing within seven business days after the notice of appeal has been filed.

M. In addition to any other remedies prescribed in this article, the director may issue a cease and desist order against a sober living home that does not hold a current or valid license or that exceeds the scope of activities or services authorized by a license issued pursuant to this article. The attorney general or a county attorney may bring an action for an injunction to restrain the violation or to enjoin the future operation or maintenance of the sober living home until the sober living home complies with this article or the rules adopted pursuant to this article. Before issuing a cease and desist order or bringing an action for an injunction pursuant to this section, the department may issue to the owner or agent of the licensed or unlicensed sober living home a certified letter that states the factual basis for the department's belief that the sober living home is operating in violation of this article or the rules adopted pursuant to this article. The department may include in the certified letter a description of the enforcement options available to the department if the violation or violations continue.

N. If a political subdivision of this state requests an update from the department on the status of the investigation of a complaint filed by the political subdivision relating to a sober living home, the department shall notify the political subdivision of the status within five business days after the request. If requested by the political subdivision, the department shall provide to the political subdivision the findings of its investigation, including copies of investigative reports without personal identifying information of the sober living home residents.

O. The department may contract with a third party to assist the department with licensure, investigations and inspections, except that the department shall not contract with any owner, operator, administrator, accrediting body or association of sober living homes. Third-party contractors shall be paid from the health services licensing fund established by section 36-414.

§ 36-2064 Certified sober living homes; licensure; inspection waiver

A. A sober living home that is licensed in this state and that is certified by a certifying organization may operate in this state and receive referrals pursuant to section 36-2065.

B. In lieu of an initial on-site licensure inspection and any annual on-site inspection, the department shall issue a license to a sober living home that submits an application prescribed by the department and that meets the following requirements:

1. Is currently certified as a sober living home by a certifying organization.

2. Meets all department licensure requirements.

3. Does not receive any monies from this state or the federal government.

4. Has not been subject to an enforcement action pursuant to section 36-2063 within the preceding year.

C. The director may accept proof that a sober living home is a certified sober living home in lieu of all compliance inspections required by this article if the director receives a copy of the sober living home's certification report for the licensure period and the sober living home is certified by a certifying organization. If the certification report is not valid for the entire licensure period, the department may conduct a compliance inspection of the sober living home during the time period the department does not have a valid certification report for the sober living home.

§ 36-2065 Referrals; licensed sober living homes

A. A state agency or a state-contracted vendor that directs substance abuse treatment shall refer a person only to a licensed sober living home.

B. Only a licensed sober living home is eligible for federal or state funding to deliver sober living home services in this state.

C. Persons whose substance abuse treatment is funded with federal or state monies may be referred only to a licensed sober living home.

D. A state court shall give first consideration to a licensed sober living home when making residential recommendations for individuals under its supervision.

E. A health care institution that provides substance abuse treatment and that is licensed by the department shall refer a patient or client only to a licensed sober living home.

F. A behavioral health provider or a behavioral health professional who is licensed pursuant to title 32, chapter 33 shall refer a patient or client only to a licensed sober living home.

§ 36-2066 Posting; confidential information; notification of local jurisdictions

A. The department shall post on its public website the name and telephone number of each licensed sober living home and shall update the list quarterly. The department shall not disclose the address of a licensed sober living home, except that the department, on request, shall disclose the address of the sober living home to:

1. A local jurisdiction for zoning purposes.

2. Local law enforcement.

3. Emergency personnel.

4. A third-party contractor of the department.

B. A sober living home's address is not a public record and is not subject to title 39, chapter 1, article 2. This section does not prohibit a sober living home from publishing or otherwise self-disclosing its address.

C. If a local jurisdiction provides its contact information to the department for notifications relating to sober living homes, the department shall notify the local jurisdiction of all initial licenses issued pursuant to this article in that jurisdiction in the preceding month. The department is not obligated to provide the notifications under this subsection to a local jurisdiction that does not provide the local jurisdiction's contact information to the department.

§ 36-2067 Department; annual report

A. On or before January 31 of each year, the department shall submit to the senate health and human services committee and the house of representatives health committee, or their successor committees, a report on licensed and unlicensed sober living homes in this state that includes:

1. The number of licensed sober living homes in each city, town and county.

2. The number of sober living homes that are licensed each year.

3. The number of complaints against licensed sober living homes received by the department each year.

4. The number of complaints against licensed sober living homes investigated by the department or its third-party contractor each year.

5. The number of enforcement actions taken by the department against licensed sober living homes each year.

6. The number of complaints against residences, places, dwelling units or other premises suspected of being unlicensed sober living homes.

7. The number of investigations resulting from complaints against unlicensed sober living homes, including how many of those investigated met the legal requirements for sober living home licensure and how the department took action on its findings.

8. The number of enforcement actions taken by the department against unlicensed sober living homes each year.

B. The department shall provide a copy of the report submitted pursuant to subsection A of this section to the secretary of state.

§ 36-2068 Legal action; licensure; change of ownership; definitions

A. The director may continue to pursue any court, administrative or enforcement action against a licensee even if the sober living home is in the process of being sold or transferred or has closed.

B. The department may revoke or suspend a sober living home license or deny an application for a sober living home license if:

1. The applicant, the licensee or a controlling person has a sober living home or health care institution license that is in an enforcement action or court action related to the health and safety of the residents or patients.

2. The department has determined for reasons other than those specified in paragraph 1 of this subsection that the issuance of a license is likely to jeopardize resident safety.

3. The applicant, the licensee or a controlling person has had in any state or jurisdiction an application or license to operate a sober living home or a health care institution denied, suspended or revoked, unless the denial was based on the failure to complete the licensing process or to pay a required licensing fee within the required time frame.

4. The applicant, the licensee or a controlling person has had in any state or jurisdiction a health professional license or certificate denied, suspended or revoked.

5. The applicant, the licensee or a controlling person provides false or misleading information to the department.

C. The department may deny the approval of a change in ownership of a currently licensed sober living home if the department determines that the transfer of ownership, whether involving a direct owner or indirect owner, may jeopardize resident safety.

D. For the purposes of this section:

1. "Controlling person" means a person who, with respect to a business organization:

(a) Has the power to vote at least ten percent of the outstanding voting securities of the business organization.

(b) If the business organization is a partnership, is a general partner or is a limited partner who holds at least ten percent of the voting rights of the partnership.

(c) If the business organization is a corporation, association or limited liability company, is the president, the chief executive officer, the incorporator, an agent or any person who owns or controls at least ten percent of the voting securities.

(d) Holds a beneficial interest in ten percent or more of the liabilities of the business organization.

2. "Direct owner" means a person that has an ownership or control interest in the sober living home totaling fifty-one percent or more.

3. "Indirect owner":

(a) Means a person that has an ownership or control interest in a direct owner totaling fifty-one percent or more.

(b) Includes an ownership or control interest in an indirect owner totaling fifty-one percent or more and a combination of direct ownership and indirect ownership or control interests totaling fifty-one percent or more in the sober living home.

§ 36-2069 Fingerprinting requirements; definitions

(Eff. 3/26/26)

A. Except as provided in subsection E or F of this section, as a condition of licensure or continued licensure of a sober living home that receives referrals pursuant to section 36-2065, subsection A or C, the licensee and each paid staff member of a sober living home shall have a valid fingerprint clearance card that is issued pursuant to title 41, chapter 12, article 3.1 or shall apply for a fingerprint clearance card within twenty working days after beginning employment or contracted work.

B. A licensee shall make a documented, good faith effort to verify the current status of each paid staff member's fingerprint clearance card.

C. The licensee or the paid staff member, or the licensee on behalf of the paid staff member, shall submit a completed application that is provided by the department of public safety within twenty days after the date the person begins employment or contracted work.

D. Except as provided in subsection E or F of this section, a sober living home shall not allow a paid staff member to continue employment or contracted work if the person has been denied a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1 or has had a fingerprint clearance card suspended or revoked.

E. The licensee or the paid staff member of a sober living home who is eligible pursuant to section 41-1758.07, subsection C to petition the board of fingerprinting for a good cause exception and who provides documentation of having applied for a good cause exception pursuant to section 41-619.55 but who has not yet received a decision is exempt from the fingerprinting requirements of this section until a decision is made.

F. A sober living home may employ or continue to employ a paid staff member who is denied a fingerprint clearance card if the paid staff member does both of the following:

1. Successfully completes treatment for substance use or, if applicable, recidivism reduction as prescribed by rule.

2. Passes a background and screening evaluation conducted by the sober living home that demonstrates that the individual is not a threat to the health or safety of the residents of the sober living home. A background and screening evaluation includes prior employment or personal reference checks.

G. For the purposes of this section:

1. "Licensee" means the individual or business organization to which the department has issued a license to operate a sober living home.

2. "Monetary compensation" means salary or wages.

3. "Paid staff member":

(a) Means an employee who provides monitoring, supervision or assistance or other services to residents at a sober living home and who receives monetary compensation from the sober living home.

(b) Includes a person who provides janitorial, maintenance, housekeeping or transportation services, whether as a contractor or employee of the sober living home.

(c) Does not include a resident of the sober living home unless the resident receives monetary compensation to provide monitoring, supervision or assistance or other services to the residents of the sober living home.

Chapter 19 Kidney Treatment Centers

Article 1 General Provisions

§ 36-2101 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

§ 36-2102 Medical affiliation; contract for services; funds; limitation

A. The director may contract with any Arizona hospital, the Arizona board of regents, a licensed dialysis center or home delivery health service for:

1. The operation and administration of limited care dialysis centers.

2. Assistance in home dialysis.

3. Kidney transplants.

B. State funds appropriated to the department for the continuation of limited care dialysis centers, assistance in home dialysis, kidney transplants and related services shall not be utilized to pay for general medical care services other than kidney transplants, dialysis treatment and necessary laboratory procedures, including prescription drugs, related to such treatment or transplant and complications arising in the treatment of dialysis patients.

§ 36-2103 Functions of regional limited care dialysis centers; limitations

Each regional limited care dialysis center shall:

1. Provide dialysis treatment services and supplies for home dialysis treatment services and kidney transplants and related services. Such services and supplies shall be provided only when funds from medical insurance, if any, of an individual patient are exhausted or insufficient to purchase such supplies or services.

2. Develop and utilize methods of dialysis designed to make the process more efficient and economical.

3. Seek the active participation of and consultation with industry in order to make equipment and procedures more efficient.

§ 36-2104 Acceptance of other funds

The department may accept and utilize any public or private funds which may become available for regional limited care dialysis centers from federal, voluntary, philanthropic or other sources in order to augment state funds.

Chapter 20 Abortion

Article 1 General Provisions

§ 36-2151 Definitions

In this article, unless the context otherwise requires:

1. "Abortion" means the use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Abortion does not include birth control devices, oral contraceptives used to inhibit or prevent ovulation, conception or the implantation of a fertilized ovum in the uterus or the use of any means to save the life or preserve the health of the unborn child, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus.

2. "Auscultation" means the act of listening for sounds made by internal organs of the unborn child, specifically for a heartbeat, using an ultrasound transducer and fetal heart rate monitor.

3. "Bodily remains" means the physical remains, corpse or body parts of an unborn child who has been expelled or extracted from his or her mother through abortion.

4. "Conception" means the fusion of a human spermatozoon with a human ovum.

5. "Final disposition" has the same meaning prescribed in section 36-301.

6. "Genetic abnormality" has the same meaning prescribed in section 13-3603.02.

7. "Gestational age" means the age of the unborn child as calculated from the first day of the last menstrual period of the pregnant woman.

8. "Health professional" has the same meaning prescribed in section 32-3201.

9. "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

10. "Medication abortion" means the use of any medication, drug or other substance that is intended to cause or induce an abortion.

11. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

12. "Pregnant" or "pregnancy" means a female reproductive condition of having a developing unborn child in the body and that begins with conception.

13. "Probable gestational age" means the gestational age of the unborn child at the time the abortion is planned to be performed and as determined with reasonable probability by the attending physician.

14. "Surgical abortion" means the use of a surgical instrument or a machine to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Surgical abortion does not include the use of any means to increase the probability of a live birth, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus. Surgical abortion does not include patient care incidental to the procedure.

15. "Ultrasound" means the use of ultrasonic waves for diagnostic or therapeutic purposes to monitor a developing unborn child.

16. "Unborn child" means the offspring of human beings from conception until birth.

§ 36-2152 Parental consent; exception; hearings; time limits; violations; classification; civil relief; statute of limitations

A. In addition to the other requirements of this chapter, a person shall not knowingly perform an abortion on a pregnant unemancipated minor unless the attending physician has secured the written and notarized consent from one of the minor's parents or the minor's guardian or conservator or unless a judge of the superior court authorizes the physician to perform the abortion pursuant to subsection B of this section. Notwithstanding section 41-319, the notarized statement of parental consent and the description of the document or notarial act recorded in the notary journal are confidential and are not public records.

B. A judge of the superior court, on petition or motion, and after an appropriate hearing, shall authorize a physician to perform the abortion if the judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed abortion. If the judge determines that the pregnant minor is not mature or if the pregnant minor does not claim to be mature, the judge shall determine whether the performance of an abortion on her without the consent from one of her parents or her guardian or conservator would be in her best interests and shall authorize a physician to perform the abortion without consent if the judge concludes that the pregnant minor's best interests would be served.

C. If the pregnant minor claims to be mature at a proceeding held pursuant to subsection B of this section, the minor must prove by clear and convincing evidence that she is sufficiently mature and capable of giving informed consent without consulting her parent or legal guardian based on her experience level, perspective and judgment. In assessing the pregnant minor's experience level, the court may consider, among other relevant factors, the minor's age and experiences working outside the home, living away from home, traveling on her own, handling personal finances and making other significant decisions. In assessing the pregnant minor's perspective, the court may consider, among other relevant factors, what steps the minor took to explore her options and the extent to which she considered and weighed the potential consequences of each option. In assessing the pregnant minor's judgment, the court may consider, among other relevant factors, the minor's conduct since learning of her pregnancy and her intellectual ability to understand her options and to make an informed decision.

D. The pregnant minor may participate in the court proceedings on her own behalf. The court shall appoint a guardian ad litem for her. The court shall advise her that she has the right to court-appointed counsel and, on her request, shall provide her with counsel unless she appears through private counsel or she knowingly and intelligently waives her right to counsel.

E. Proceedings in the court under this section are confidential and have precedence over other pending matters. Members of the public shall not inspect, obtain copies of or otherwise have access to records of court proceedings under this section unless authorized by law. A judge who conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a confidential record of the evidence to be maintained, including the judge's own findings and conclusions. The minor may file the petition using a fictitious name. For the purposes of this subsection, public does not include judges, clerks, administrators, professionals or other persons employed by or working under the supervision of the court or employees of other public agencies who are authorized by state or federal rule or law to inspect and copy closed court records.

F. The court shall hold the hearing and shall issue a ruling within forty-eight hours, excluding weekends and holidays, after the petition is filed. If the court fails to issue a ruling within this time period, the petition is deemed to have been granted and the consent requirement is waived.

G. An expedited confidential appeal is available to a pregnant minor for whom the court denies an order authorizing an abortion without parental consent. The appellate court shall hold the hearing and issue a ruling within forty-eight hours, excluding weekends and holidays, after the petition for appellate review is filed. Filing fees are not required of the pregnant minor at either the trial or the appellate level.

H. Parental consent or judicial authorization is not required under this section if either:

1. The pregnant minor certifies to the attending physician that the pregnancy resulted from sexual conduct with a minor by the minor's parent, stepparent, uncle, grandparent, sibling, adoptive parent, legal guardian or foster parent or by a person who lives in the same household with the minor and the minor's mother. The physician performing the abortion shall report the sexual conduct with a minor to the proper law enforcement officials pursuant to section 13-3620 and shall preserve and forward a sample of the fetal tissue to these officials for use in a criminal investigation.

2. The attending physician certifies in the pregnant minor's medical record that, on the basis of the physician's good faith clinical judgment, the pregnant minor has a condition that so complicates her medical condition as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.

I. A person who performs an abortion in violation of this section is guilty of a class 1 misdemeanor. A person who intentionally causes, aids or assists a minor in obtaining an abortion in violation of this section is guilty of a class 1 misdemeanor. A person is not subject to any liability under this section if the person establishes by written evidence that the person relied on evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with this section are true.

J. In addition to other remedies available under the common or statutory law of this state, one or both of the minor's parents or the minor's guardian may bring a civil action in the superior court in the county in which the parents or the guardian resides to obtain appropriate relief for a violation of this section, unless the pregnancy resulted from the criminal conduct of the parent or guardian. The civil action may be based on a claim that failure to obtain consent was a result of simple negligence, gross negligence, wantonness, wilfulness, intention or any other legal standard of care. The civil action may be brought against the person who performs the abortion in violation of this section and any person who causes, aids or assists a minor to obtain an abortion without meeting the requirements of this section. Relief pursuant to this subsection includes the following:

1. Money damages for all psychological, emotional and physical injuries that result from the violation of this section.

2. Statutory damages in an amount equal to $5,000 or three times the cost of the abortion, whichever is greater.

3. Reasonable attorney fees and costs.

K. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

L. The consent required by this section must be obtained on a form prescribed by the department of health services. At a minimum, the form must:

1. List the possible medical risks that may occur with any surgical, medical or diagnostic procedure, including the potential for infection, blood clots, hemorrhage, allergic reactions and death.

2. List the possible medical risks that may occur with a surgical abortion, including hemorrhage, uterine perforation, sterility, injury to the bowel or bladder, a possible hysterectomy as a result of a complication or injury during the procedure and failure to remove the unborn child that may result in an additional procedure.

3. List the possible medical risks that may occur with a medication abortion, including hemorrhage, infection, failure to remove the unborn child that may result in an additional procedure, sterility and the possible continuation of the pregnancy.

4. Require the pregnant minor's and the pregnant minor's parent's initials on each page of the form and a full signature on the final page of the form.

5. Include a space for the notary's signature and seal on the final page of the form.

M. The physician must maintain the form in the pregnant minor's records for seven years after the date of the procedure or five years after the date of the minor's maturity, whichever is longer.

§ 36-2153 Informed consent; requirements; information; website; signage; violation; civil relief; statute of limitations

A. An abortion shall not be performed or induced without the voluntary and informed consent of the woman on whom the abortion is to be performed or induced. Except in the case of a medical emergency and in addition to the other requirements of this chapter, consent to an abortion is voluntary and informed only if all of the following are true:

1. At least twenty-four hours before the abortion, the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, of:

(a) The name of the physician who will perform the abortion.

(b) The nature of the proposed procedure or treatment.

(c) The immediate and long-term medical risks associated with the procedure that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

(d) Alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

(e) The probable gestational age of the unborn child at the time the abortion is to be performed.

(f) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.

(g) The medical risks associated with carrying the child to term.

2. At least twenty-four hours before the abortion, the physician who is to perform the abortion, the referring physician or a qualified physician, physician assistant, nurse, psychologist or licensed behavioral health professional to whom the responsibility has been delegated by either physician has informed the woman, orally and in person, that:

(a) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care.

(b) The father of the unborn child is liable to assist in the support of the child, even if he has offered to pay for the abortion. In the case of rape or incest, this information may be omitted.

(c) Public and private agencies and services are available to assist the woman during her pregnancy and after the birth of her child if she chooses not to have an abortion, whether she chooses to keep the child or place the child for adoption.

(d) It is unlawful for any person to coerce a woman to undergo an abortion.

(e) The woman is free to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she might otherwise be entitled.

(f) The department of health services maintains a website that describes the unborn child and lists the agencies that offer alternatives to abortion.

(g) The woman has the right to review the website and that a printed copy of the materials on the website will be provided to her free of charge if she chooses to review these materials.

(h) In the case of a surgical abortion, the woman has the right to determine final disposition of bodily remains and to be informed of the available options for locations and methods for disposition of bodily remains.

3. The information in paragraphs 1 and 2 of this subsection is provided to the woman individually and in a private room to protect her privacy and to ensure that the information focuses on her individual circumstances and that she has adequate opportunity to ask questions.

4. The woman certifies in writing before the abortion that the information required to be provided pursuant to paragraphs 1 and 2 of this subsection has been provided.

5. In the case of a surgical abortion, if the woman desires to exercise her right to determine final disposition of bodily remains, the woman indicates in writing her choice for the location and method of final disposition of bodily remains.

B. If a woman has taken mifepristone as part of a two-drug regimen to terminate her pregnancy, has not yet taken the second drug and consults an abortion clinic questioning her decision to terminate her pregnancy or seeking information regarding the health of her fetus or the efficacy of mifepristone alone to terminate a pregnancy, the abortion clinic staff shall inform the woman that the use of mifepristone alone to end a pregnancy is not always effective and that she should immediately consult a physician if she would like more information.

C. If a medical emergency compels the performance of an abortion, the physician shall inform the woman, before the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert the woman's death or to avert substantial and irreversible impairment of a major bodily function.

D. The department of health services shall establish and shall annually update a website that includes a link to a printable version of all materials listed on the website. The materials must be written in an easily understood manner and printed in a typeface that is large enough to be clearly legible. The website must include all of the following materials:

1. Information that is organized geographically by location and that is designed to inform the woman about public and private agencies and services that are available to assist a woman through pregnancy, at childbirth and while her child is dependent, including adoption agencies. The materials shall include a comprehensive list of the agencies, a description of the services they offer and the manner in which these agencies may be contacted, including the agencies' telephone numbers and website addresses.

2. Information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care.

3. A statement that it is unlawful for any person to coerce a woman to undergo an abortion.

4. A statement that any physician who performs an abortion on a woman without obtaining the woman's voluntary and informed consent or without affording her a private medical consultation may be liable to the woman for damages in a civil action.

5. A statement that the father of a child is liable to assist in the support of that child, even if the father has offered to pay for an abortion, and that the law allows adoptive parents to pay costs of prenatal care, childbirth and neonatal care.

6. Information that is designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including pictures or drawings representing the development of unborn children at two-week gestational increments and any relevant information on the possibility of the unborn child's survival. The pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for each stage of pregnancy. The information provided pursuant to this paragraph must be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages.

7. Objective information that describes the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with carrying a child to term.

8. Information explaining the efficacy of mifepristone taken alone, without a follow-up drug as part of a two-drug regimen, to terminate a pregnancy and advising a woman to immediately contact a physician if the woman has taken only mifepristone and questions her decision to terminate her pregnancy or seeks information regarding the health of her fetus.

E. An individual who is not a physician shall not perform a surgical abortion.

F. A person shall not write or communicate a prescription for a drug or drugs to induce an abortion or require or obtain payment for a service provided to a patient who has inquired about an abortion or scheduled an abortion until the twenty-four-hour reflection period required by subsection A of this section expires.

G. A person shall not intimidate or coerce in any way any person to obtain an abortion. A parent, a guardian or any other person shall not coerce a minor to obtain an abortion. If a minor is denied financial support by the minor's parents, guardians or custodian due to the minor's refusal to have an abortion performed, the minor is deemed emancipated for the purposes of eligibility for public assistance benefits, except that the emancipated minor may not use these benefits to obtain an abortion.

H. An abortion clinic as defined in section 36-449.01 shall conspicuously post signs that are visible to all who enter the abortion clinic, that are clearly readable and that state it is unlawful for any person to force a woman to have an abortion and a woman who is being forced to have an abortion has the right to contact any local or state law enforcement or social service agency to receive protection from any actual or threatened physical, emotional or psychological abuse. The signs shall be posted in the waiting room, consultation rooms and procedure rooms.

I. A person shall not require a woman to obtain an abortion as a provision in a contract or as a condition of employment.

J. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.

K. In addition to other remedies available under the common or statutory law of this state, any of the following may file a civil action to obtain appropriate relief for a violation of this section:

1. A woman on whom an abortion has been performed without her informed consent as required by this section.

2. The father of the unborn child if the father was married to the mother at the time she received the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.

3. A maternal grandparent of the unborn child if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.

L. A civil action filed pursuant to subsection K of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides and may be based on a claim that failure to obtain informed consent was a result of simple negligence, gross negligence, wantonness, wilfulness, intention or any other legal standard of care. Relief pursuant to subsection K of this section includes the following:

1. Money damages for all psychological, emotional and physical injuries resulting from the violation of this section.

2. Statutory damages in an amount equal to $5,000 or three times the cost of the abortion, whichever is greater.

3. Reasonable attorney fees and costs.

M. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

§ 36-2153.01 Website information; agencies providing support for pregnant women; adoption information

A. On or before February 1, 2022, the department of health services shall provide on the department's public website home page a conspicuous link that directs an individual to the following easily comprehensible information, in both English and Spanish:

1. A list of public and private agencies and services available to assist a woman through pregnancy, on childbirth and while her child is dependent. Any agency that counsels, refers, performs, induces, prescribes or provides any means for abortion may not be included on the list.

2. Each agency's services, physical address, telephone number and website address, if available.

3. Information on and a link to a separate featured webpage that is accessible by redirecting from the domain name AdoptionOption.AZ.gov and that lists all of the following:

(a) Public and nonprofit adoption agencies that are not affiliated with an abortion provider and that are arranged geographically. The link shall include the information specified in paragraph 2 of this subsection.

(b) Easily comprehensible first steps to assist a pregnant woman seeking to confidentially explore the option of placing her child for adoption.

(c) Whether the adoption agency allows the woman to choose the adoptive parents.

(d) Agencies that offer obstetric ultrasounds free of charge.

(e) Agencies that offer confidential counseling free of charge to a woman considering placing her child for adoption.

B. All information provided pursuant to subsection A of this section shall be available in an easily downloadable printed format.

§ 36-2154 Right to refuse to participate in abortion; abortion medication or emergency contraception

A. A hospital is not required to admit any patient for the purpose of performing an abortion. A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital, doctor, clinic or other medical or surgical facility in which an abortion has been authorized, who states in writing an objection to the abortion on moral or religious grounds is not required to facilitate or participate in the medical or surgical procedures that will result in the abortion.

B. A pharmacy, hospital or health professional, or any employee of a pharmacy, hospital or health professional, who states in writing an objection to abortion, abortion medication, emergency contraception or any medication or device intended to inhibit or prevent implantation of a fertilized ovum on moral or religious grounds is not required to facilitate or participate in the provision of an abortion, abortion medication, emergency contraception or any medication or device intended to inhibit or prevent implantation of a fertilized ovum. The pharmacy, hospital or health professional, or an employee of the pharmacy, hospital or health professional, shall return to the patient the patient's written prescription order.

§ 36-2155 Performance of an abortion by individual who is not a physician; prohibition; definitions

A. An individual who is not a physician shall not perform a surgical abortion.

B. For the purposes of this section:

1. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

2. "Surgical abortion" means the use of a surgical instrument or a machine to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will cause, with reasonable likelihood, the death of the unborn child. Surgical abortion does not include the use of any means to increase the probability of a live birth, to preserve the life or health of the child after a live birth, to terminate an ectopic pregnancy or to remove a dead fetus. Surgical abortion does not include patient care incidental to the procedure.

§ 36-2156 Informed consent; ultrasound required; violation; civil relief; statute of limitations

A. An abortion shall not be performed or induced without the voluntary and informed consent of the woman on whom the abortion is to be performed or induced. Except in the case of a medical emergency and in addition to the other requirements of this chapter, consent to an abortion is voluntary and informed only if both of the following are true:

1. At least twenty-four hours before the woman having any part of an abortion performed or induced, and before the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform the abortion, the referring physician or a qualified person working in conjunction with either physician shall:

(a) Perform fetal ultrasound imaging and auscultation of fetal heart tone services on the woman undergoing the abortion.

(b) Offer to provide the woman with an opportunity to view the active ultrasound image of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible. The active ultrasound image must be of a quality consistent with standard medical practice in the community, contain the dimensions of the unborn child and accurately portray the presence of external members and internal organs, if present or viewable, of the unborn child. The auscultation of fetal heart tone must be of a quality consistent with standard medical practice in the community.

(c) Offer to provide the woman with a simultaneous explanation of what the ultrasound is depicting, including the presence and location of the unborn child within the uterus, the number of unborn children depicted, the dimensions of the unborn child and the presence of any external members and internal organs, if present or viewable.

(d) Offer to provide the patient with a physical picture of the ultrasound image of the unborn child.

2. The woman certifies in writing before the abortion that she has been given the opportunity to view the active ultrasound image and hear the heartbeat of the unborn child if the heartbeat is audible and that she opted to view or not view the active ultrasound image and hear or not hear the heartbeat of the unborn child.

B. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.

C. In addition to other remedies available under the common or statutory law of this state, any of the following may file a civil action to obtain appropriate relief for a violation of this section:

1. A woman on whom an abortion has been performed without her informed consent as required by this section.

2. The father of the unborn child if married to the mother at the time she received the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.

3. The maternal grandparents of the unborn child if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.

D. A civil action filed pursuant to subsection C of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides and may be based on a claim that failure to obtain informed consent was a result of simple negligence, gross negligence, wantonness, wilfulness, intention or any other legal standard of care. Relief pursuant to subsection C of this section includes any of the following:

1. Money damages for all psychological, emotional and physical injuries resulting from the violation of this section.

2. Statutory damages in an amount equal to five thousand dollars or three times the cost of the abortion, whichever is greater.

3. Reasonable attorney fees and costs.

E. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

§ 36-2157 Affidavit

A person shall not knowingly perform or induce an abortion before that person completes an affidavit that:

1. States that the person making the affidavit is not aborting the child because of the child's sex or race or because of a genetic abnormality of the child and has no knowledge that the child to be aborted is being aborted because of the child's sex or race or because of a genetic abnormality of the child.

2. Is signed by the person performing or inducing the abortion.

§ 36-2158 Informed consent; fetal condition; website; unprofessional conduct; civil relief; statute of limitations; definitions

A. A person shall not perform or induce an abortion without first obtaining the voluntary and informed consent of the woman on whom the abortion is to be performed or induced. Except in the case of a medical emergency and in addition to the other requirements of this chapter, consent to an abortion is voluntary and informed only if all of the following occur:

1. In the case of a woman seeking an abortion of her unborn child diagnosed with a lethal fetal condition, at least twenty-four hours before the abortion the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, that:

(a) Perinatal hospice services are available and the physician has offered this care as an alternative to abortion.

(b) The department of health services maintains a website that lists perinatal hospice programs that are available both in this state and nationally and that are organized geographically by location.

(c) The woman has a right to review the website and that a printed copy of the materials on the website will be provided to her free of charge if she chooses to review these materials.

2. In the case of a woman seeking an abortion of her unborn child diagnosed with a nonlethal fetal condition, at least twenty-four hours before the abortion the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person:

(a) Of up-to-date, evidence-based information concerning the range of outcomes for individuals living with the diagnosed condition, including physical, developmental, educational and psychosocial outcomes.

(b) That the department of health services maintains a website that lists information regarding support services, hotlines, resource centers or clearinghouses, national and local peer support groups and other education and support programs available to assist the woman and her unborn child, any national or local registries of families willing to adopt newborns with the nonlethal fetal condition and contact information for adoption agencies willing to place newborns with the nonlethal fetal condition with families willing to adopt.

(c) That the woman has a right to review the website and that a printed copy of the materials on the website will be provided to her free of charge if she chooses to review these materials.

(d) That section 13-3603.02 prohibits abortion because of the unborn child's sex or race or because of a genetic abnormality.

3. The woman certifies in writing before the abortion that the information required to be provided pursuant to this subsection has been provided.

B. The department of health services shall establish and annually update a website that includes the information prescribed in subsection A, paragraph 1, subdivision (b) and paragraph 2, subdivision (b) of this section.

C. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.

D. In addition to other remedies available under the common or statutory law of this state, any of the following individuals may file a civil action to obtain appropriate relief for a violation of this section:

1. A woman on whom an abortion has been performed without her informed consent as required by this section.

2. The father of the unborn child if the father was married to the mother at the time she received the abortion, unless the pregnancy resulted from the father's criminal conduct.

3. A maternal grandparent of the unborn child if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from the maternal grandparent's criminal conduct.

E. A civil action filed pursuant to subsection D of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides and may be based on a claim that failure to obtain informed consent was a result of simple negligence, gross negligence, wantonness, wilfulness, intention or any other legal standard of care. Relief pursuant to this subsection includes the following:

1. Money damages for all psychological, emotional and physical injuries resulting from the violation of this section.

2. Statutory damages in an amount equal to $5,000 or three times the cost of the abortion, whichever is greater.

3. Reasonable attorney fees and costs.

F. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

G. For the purposes of this section:

1. "Lethal fetal condition" means a fetal condition that is diagnosed before birth and that will result, with reasonable certainty, in the death of the unborn child within three months after birth.

2. "Nonlethal fetal condition" means a fetal condition that is diagnosed before birth and that will not result in the death of the unborn child within three months after birth but may result in physical or mental disability or abnormality.

3. "Perinatal hospice" means comprehensive support to the pregnant woman and her family that includes supportive care from the time of diagnosis through the time of birth and death of the infant and through the postpartum period. Supportive care may include counseling and medical care by maternal-fetal medical specialists, obstetricians, neonatologists, anesthesia specialists, clergy, social workers and specialty nurses who are focused on alleviating fear and ensuring that the woman and her family experience the life and death of the child in a comfortable and supportive environment.

§ 36-2159 Abortion; gestational age; violation; classification; unprofessional conduct; civil relief; statute of limitations

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

C. A person who knowingly violates this section commits a class 1 misdemeanor.

D. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.

E. In addition to other remedies available under the common or statutory law of this state, any of the following individuals may file a civil action to obtain appropriate relief for a violation of this section:

1. A woman on whom an abortion has been performed in violation of this section.

2. The father of the unborn child if the father is married to the mother at the time she received the abortion, unless the pregnancy resulted from the father's criminal conduct.

3. The maternal grandparents of the unborn child if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from either of the maternal grandparent's criminal conduct.

F. A civil action filed pursuant to subsection E of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides. Relief pursuant to this subsection includes the following:

1. Money damages for all psychological, emotional and physical injuries resulting from the violation of this section.

2. Statutory damages in an amount equal to five thousand dollars or three times the cost of the abortion, whichever is greater.

3. Reasonable attorney fees and costs.

G. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

H. A woman on whom an abortion is performed or induced in violation of this section may not be prosecuted under this section or for conspiracy to commit a violation of this section.

§ 36-2160 Abortion-inducing drugs; definition

A. An abortion-inducing drug may be provided only by a qualified physician in accordance with the requirements of this chapter.

B. A manufacturer, supplier or physician or any other person is prohibited from providing an abortion-inducing drug via courier, delivery or mail service.

C. This section does not apply to drugs that may be known to cause an abortion but that are prescribed for other medical indications.

D. For the purposes of this section, "abortion-inducing drug" means a medicine or drug or any other substance used for a medication abortion.

Article 2 Abortion Reporting Requirements

§ 36-2161 Abortions; reporting requirements

A. A hospital or facility in this state where abortions are performed must submit to the department of health services on a form prescribed by the department a report of each abortion performed in the hospital or facility. The report shall not identify the individual patient by name or include any other information or identifier that would make it possible to identify, in any manner or under any circumstances, a woman who has obtained or sought to obtain an abortion. The report must include the following information:

1. The name and address of the facility where the abortion was performed.

2. The type of facility where the abortion was performed.

3. The county where the abortion was performed.

4. The woman's age.

5. The woman's educational background by highest grade completed and, if applicable, level of college completed.

6. The county and state in which the woman resides.

7. The woman's race and ethnicity.

8. The woman's marital status.

9. The number of prior pregnancies and prior abortions of the woman.

10. The number of previous spontaneous terminations of pregnancy of the woman.

11. The gestational age of the unborn child at the time of the abortion.

12. The reason for the abortion, including at least one of the following:

(a) The abortion is elective.

(b) The abortion is due to maternal health considerations, including one of the following:

(i) A premature rupture of membranes.

(ii) An anatomical abnormality.

(iii) Chorioamnionitis.

(iv) Preeclampsia.

(v) Other.

(c) The abortion is due to fetal health considerations, including the fetus being diagnosed with at least one of the following:

(i) A lethal anomaly.

(ii) A central nervous system anomaly.

(iii) Other.

(d) The pregnancy is the result of a sexual assault.

(e) The pregnancy is the result of incest.

(f) The woman is being coerced into obtaining an abortion.

(g) The woman is a victim of sex trafficking.

(h) The woman is a victim of domestic violence.

(i) Other.

(j) The woman declined to answer.

13. The type of procedure performed or prescribed and the date of the abortion.

14. Any preexisting medical conditions of the woman that would complicate pregnancy.

15. Any known medical complication that resulted from the abortion, including at least one of the following:

(a) Shock.

(b) Uterine perforation.

(c) Cervical laceration requiring suture or repair.

(d) Heavy bleeding or hemorrhage with estimated blood loss of at least five hundred cubic centimeters.

(e) Aspiration or allergic response.

(f) Postprocedure infection.

(g) Sepsis.

(h) Incomplete abortion retaining part of the fetus requiring reevacuation.

(i) Damage to the uterus.

(j) Failed termination of pregnancy.

(k) Death of the patient.

(l) Other.

(m) None.

16. The basis for any medical judgment that a medical emergency existed that excused the physician from compliance with the requirements of this chapter.

17. The physician's statement if required pursuant to section 36-2301.01.

18. If applicable, the weight of the aborted fetus for any abortion performed pursuant to section 36-2301.01.

19. Whether a fetus or embryo was delivered alive as defined in section 36-2301 during or immediately after an attempted abortion and the efforts made to promote, preserve and maintain the life of the fetus or embryo pursuant to section 36-2301.

20. Statements by the physician and all clinical staff who observed the fetus or embryo during or immediately after the abortion certifying under penalty of perjury that, to the best of their knowledge, the aborted fetus or embryo was not delivered alive as defined in section 36-2301.

21. The medical specialty of the physician performing the abortion, including one of the following:

(a) Obstetrics-gynecology.

(b) General or family practice.

(c) Emergency medicine.

(d) Other.

22. The type of admission for the patient, including whether the abortion was performed:

(a) As an outpatient procedure in an abortion clinic.

(b) As an outpatient procedure at a hospital.

(c) As an inpatient procedure at a hospital.

(d) As an outpatient procedure at a health care institution other than an abortion clinic or hospital.

23. Whether anesthesia was administered to the mother.

24. Whether anesthesia was administered to the unborn child.

25. Whether any genetic abnormality of the unborn child was detected at or before the time of the abortion by genetic testing, such as maternal serum tests, or by ultrasound, such as nuchal translucency screening, or by other forms of testing.

26. If a surgical abortion was performed, the method of final disposition of bodily remains and whether the woman exercised her right to choose the final disposition of bodily remains.

B. The hospital or facility shall request the information specified in subsection A, paragraph 12 of this section at the same time the information pursuant to section 36-2153 is provided to the woman individually and in a private room to protect the woman's privacy. The information requested pursuant to subsection A, paragraph 12 of this section may be obtained on a medical form provided to the woman to complete if the woman completes the form individually and in a private room.

C. If the woman who is seeking the abortion discloses that the abortion is being sought because of a reason described in subsection A, paragraph 12, subdivision (d), (e), (f), (g) or (h) of this section, the hospital or facility shall provide the woman with information regarding the woman's right to report a crime to law enforcement and resources available for assistance and services, including a national human trafficking resource hotline.

D. The report must be signed by the physician who performed the abortion or, if a health professional other than a physician is authorized by law to prescribe or administer abortion medication, the signature and title of the person who prescribed or administered the abortion medication. The form may be signed electronically and shall indicate that the person who signs the report is attesting that the information in the report is correct to the best of the person's knowledge. The hospital or facility must transmit the report to the department within fifteen days after the last day of each reporting month.

E. Any report filed pursuant to this section shall be filed electronically at an internet website that is designated by the department unless the person required to file the report applies for a waiver from electronic reporting by submitting a written request to the department.

§ 36-2162 Complications; reporting requirements

A. A health professional who provides medical care or treatment to a woman who, in the good faith judgment of the health professional, is in need of medical care because of a complication or complications resulting from having undergone an abortion or attempted abortion must file a report with the department of health services on a form prescribed by the department. The report shall not identify the individual patient by name but must contain the following information and other information as the department may require:

1. The date of the abortion.

2. The woman's age.

3. The number of pregnancies the woman may have had before the abortion.

4. The number and type of abortions the woman may have had before this abortion.

5. The name and address of the facility where the abortion was performed.

6. The gestational age of the unborn child at the time of the abortion, if known.

7. The type of abortion performed, if known.

8. The nature of the complication or complications, including at least one of the following:

(a) Shock.

(b) Uterine perforation.

(c) Cervical laceration requiring suture or repair.

(d) Heavy bleeding or hemorrhage with estimated blood loss of at least five hundred cubic centimeters.

(e) Aspiration or allergic response.

(f) Postprocedure infection.

(g) Sepsis.

(h) Incomplete abortion retaining part of the fetus requiring reevacuation.

(i) Damage to the uterus.

(j) Failed termination of pregnancy.

(k) Death of the patient.

(l) Other.

9. The medical treatment given.

10. The nature and extent, if known, of any permanent condition caused by the complication.

B. The hospital or facility shall complete the complication report, which may be signed electronically and shall indicate that the person who signs the report is attesting that the information in the report is correct to the best of that person's knowledge. The hospital or facility must transmit the report to the department within fifteen days after the last day of each reporting month.

C. Any report filed pursuant to this section shall be filed electronically at an internet website that is designated by the department unless the person required to file the report applies for a waiver from electronic reporting by submitting a written request to the department.

§ 36-2162.01 Informed consent; reporting requirements

A. A physician in this state who provides informed consent information regarding abortion pursuant to section 36-2153 or performs fetal ultrasound imaging and auscultation of fetal heart tone services pursuant to section 36-2156 or who delegates to a person authorized by section 36-2153 or 36-2156 the duty to provide the information or services required by those sections shall submit to the department of health services on a form prescribed by the department a report that includes the following information:

1. The number of women to whom the physician provided the information described in section 36-2153, subsection A, paragraph 1, and, of those women, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion.

2. The number of women to whom the physician, physician assistant, nurse, psychologist or licensed behavioral health professional provided the information described in section 36-2153, subsection A, paragraph 2, and, of those women, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion, and, of each of those numbers, the number provided by the physician and the number provided by a physician assistant, nurse, psychologist or licensed behavioral health professional.

3. The number of women for whom the physician or qualified person working in conjunction with the physician performed fetal ultrasound imaging and auscultation of fetal heart tone services described in section 36-2156, subsection A, paragraph 1, and, of those numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion, and, of each of those numbers, the number provided by the physician and the number provided by a qualified person working in conjunction with the physician.

4. The number of abortions performed by the physician in which information required by sections 36-2153 and 36-2156 to be provided at least twenty-four hours before the abortion was not provided because a medical emergency compelled the performance of an abortion to avert the woman's death and the number of abortions in which this required information was not provided because a medical emergency compelled the performance of an abortion to avert substantial and irreversible impairment of a major bodily function of the woman.

B. The report may not identify the individual patient by name or include any other information or identifier that would make it possible to identify, in any manner or under any circumstances, a woman who has obtained or sought to obtain an abortion.

C. The report shall be signed by the physician who provided to the woman the information required by section 36-2153, subsection A, paragraph 1 or the physician who delegated the duty to another person authorized by law to provide to the woman the information required by section 36-2153, subsection A, paragraph 2 or section 36-2156, subsection A, paragraph 1. The form may be signed electronically and shall indicate that the physician who signs the report is attesting that the information in the report is correct to the best of the physician's knowledge. The physician must transmit the report to the department within fifteen days after the last day of each reporting month.

D. Any report filed pursuant to this section shall be filed electronically at an internet website that is designated by the department unless the person required to file the report applies for a waiver from electronic reporting by submitting a written request to the department.

§ 36-2163 Reports; confidentiality; annual statistical report; violations; classification; unprofessional conduct; penalties

A. A report required by this article shall not contain the name of the woman, common identifiers such as the woman's social security number, driver license number or insurance carrier identification numbers or any other information or identifiers that would make it possible to identify in any manner or under any circumstances an individual who has obtained or seeks to obtain an abortion.

B. The department of health services shall collect all abortion reports, complication reports and informed consent reports and prepare a comprehensive annual statistical report based on the data gathered in the reports. The statistical report shall include a breakdown of the number of abortions by gestational age of the unborn child at the time of the abortion and the type of procedure performed or prescribed. The statistical report shall include a breakdown by month of the reasons for abortions pursuant to section 36-2161 and a breakdown by month of the number of abortions performed or prescribed by each hospital and facility pursuant to section 36-2161. All data included on the forms pursuant to sections 36-2161, 36-2162 and 36-2162.01 shall be included in the statistical report, except that the department shall confidentially maintain the data that alone or in combination may constitute information from which an individual performing or having an abortion may be identified using epidemiologic principles. The statistical report shall not lead to the disclosure of the identity of any person filing a report or about whom a report is filed. The department shall make the statistical report available on its website and for public inspection and copying.

C. The statistical report prepared by the department pursuant to subsection B of this section shall include statistics from the administrative office of the courts containing the following information:

1. The number of petitions filed pursuant to section 36-2152, subsection B.

2. Of the petitions filed pursuant to section 36-2152, subsection B, the number in which the judge appointed a guardian ad litem or court-appointed counsel for the minor pursuant to section 36-2152, subsection D.

3. Of the petitions filed pursuant to section 36-2152, subsection B, the number in which the judge issued an order authorizing an abortion without parental consent.

4. Of the petitions filed pursuant to section 36-2152, subsection B, the number in which the judge issued an order denying the petition.

5. Of the petitions denied, the number appealed to the court of appeals.

6. The number of those appeals that resulted in the denials being affirmed.

7. The number of those appeals that resulted in the denial being reversed.

D. The statistical report prepared by the department pursuant to subsection B of this section shall include statistics from the Arizona health care cost containment system containing the following information:

1. The total number of abortions partially or fully paid for with state monies through the Arizona health care cost containment system.

2. The total amount of state monies used to pay for the abortions and expenses incidental to the abortions.

3. The total number of abortions, if any, paid for with state monies and performed out of state.

E. Except for a statistical report as provided in subsection B of this section, a report filed pursuant to this article is not a public record and is not available for public inspection, except that disclosure may be made to law enforcement officials on an order of a court after application showing good cause. The court may condition disclosure of the information on any appropriate safeguards it may impose.

F. Original copies of all reports filed pursuant to sections 36-2161 and 36-2162 shall be available to the Arizona medical board and the Arizona board of osteopathic examiners in medicine and surgery for use in the performance of their official duties. The Arizona medical board and the Arizona board of osteopathic examiners in medicine and surgery shall maintain the confidentiality of any reports obtained pursuant to this subsection.

G. An employee, agent or contractor of the department who wilfully discloses any information obtained from reports filed pursuant to this article, other than disclosure authorized under subsections B, E and F of this section or as otherwise authorized by law, is guilty of a class 3 misdemeanor.

H. A person who is required by this article to file a report, keep any records or supply any information and who wilfully fails to file that report, keep records or supply information as required by law is guilty of unprofessional conduct and is subject to discipline, including license suspension or revocation.

I. A person who wilfully delivers or discloses to the department any report, record or information known by that person to be false commits a class 1 misdemeanor.

J. In addition to the penalties prescribed by subsections G, H and I of this section, an organization or facility that wilfully violates the reporting requirements of this article is subject to discipline by the department, including the civil penalties prescribed in section 36-431.01. If an organization or facility that is licensed pursuant to chapter 4, article 10 of this title wilfully violates the reporting requirements of this article, the department may assess a civil penalty pursuant to section 36-431.01, impose an intermediate sanction pursuant to section 36-427, suspend or revoke a license pursuant to section 36-427, deny a license or bring an action for an injunction pursuant to section 36-430.

§ 36-2164 Construction of article

This article does not establish or recognize a right to an abortion and does not make lawful an abortion that is otherwise unlawful.

Chapter 21 Medically Underserved Areas

Article 1 General Provisions

§ 36-2171 Definitions

In this chapter, unless the context otherwise requires:

1. "Advance practice provider" means a physician assistant as defined in section 32-2501 or a registered nurse practitioner as defined in section 32-1601.

2. "Behavioral health provider" means a physician who is a board-certified or board-eligible psychiatrist, a psychologist, a physician assistant or a registered nurse practitioner who is certified to practice as a behavioral health specialist or a person who is licensed pursuant to title 32 as a clinical social worker, professional counselor or marriage and family therapist.

3. "Department" means the department of health services.

4. "Pharmacist" has the same meaning prescribed in section 32-1901.

5. "Rural" means either of the following:

(a) A county with a population of less than four hundred thousand persons according to the most recent United States decennial census.

(b) A census county division with less than fifty thousand persons in a county with a population of four hundred thousand or more persons according to the most recent United States decennial census.

§ 36-2172 Primary care provider loan repayment program; purpose; eligibility; default; use of monies

A. The primary care provider loan repayment program is established in the department to pay off portions of education loans taken out by physicians, dentists, pharmacists, advance practice providers and behavioral health providers.

B. The department shall prescribe application and eligibility requirements that are consistent with the requirements of the national health service corps loan repayment program (42 Code of Federal Regulations part 62). To be eligible to participate in the primary care provider loan repayment program, an applicant shall meet all of the following requirements:

1. Have completed the final year of a course of study or program approved by recognized accrediting agencies for higher education in a health profession licensed pursuant to title 32 or hold an active license in a health profession licensed pursuant to title 32.

2. Demonstrate current or prospective employment with a public or nonprofit entity located and providing services in a federally designated health professional shortage area in this state as designated under 42 Code of Federal Regulations part 5.

3. Contract with the department to serve and be qualified to serve in general dentistry, family medicine, pediatrics, obstetrics, internal medicine, geriatrics, psychiatry, pharmacy or behavioral health.

C. In addition to the requirements of subsection B of this section, an applicant who is a physician shall meet both of the following requirements:

1. Have completed a professional residency program in family medicine, pediatrics, obstetrics, internal medicine or psychiatry or a fellowship, residency or certification program in geriatrics.

2. Contract with the department to serve for at least two years.

D. An advance practice provider, behavioral health provider or dentist who participates in the primary care provider loan repayment program shall initially contract with the department to provide services pursuant to this section for at least two years.

E. An applicant who works at an Indian health service facility or tribal or urban Indian health facility is not required to provide a sliding fee scale to be eligible for the program.

F. In making recommendations for the primary care provider loan repayment program, the department shall give priority to applicants who:

1. Intend to practice in rural areas most in need of primary care services.

2. Have been assigned to a high-need health professional shortage area pursuant to 42 Code of Federal Regulations part 5.

3. Meet criteria established in rule to determine priority consistent with the national health service corps loan repayment program (42 Code of Federal Regulations part 62, subpart B).

G. All loan repayment contract obligations are subject to the availability of monies and legislative appropriation. The department may cancel or suspend a loan repayment contract based on unavailability of monies for the program. The department is not liable for any claims, actual damages or consequential damages arising out of a cancellation or suspension of a contract.

H. This section does not prevent the department from encumbering an amount that is sufficient to ensure payment of each primary care provider loan for the services rendered during a contract period.

I. The department shall issue program monies to pay primary care provider loans that are limited to the amount of principal, interest and related expenses of educational loans, not to exceed the provider's total student loan indebtedness, according to the following schedule:

1. For physicians and dentists:

(a) For the first two years of service, a maximum of $65,000.

(b) For subsequent years, a maximum of $35,000.

2. For advance practice providers, pharmacists and behavioral health providers:

(a) For the first two years of service, a maximum of $50,000.

(b) For subsequent years, a maximum of $25,000.

J. A participant in the primary care provider loan repayment program who breaches the loan repayment contract by failing to begin or to complete the obligated services is liable for liquidated damages in an amount equivalent to the amount that would be owed for default as prescribed by the federal grants to states for loan repayment program or as determined and authorized by the department. The department may waive the liquidated damages provisions of this subsection if it determines that death or permanent physical disability accounted for the failure of the participant to fulfill the contract. The department may prescribe additional conditions for default, cancellation, waiver or suspension that are consistent with the national health service corps loan repayment program (42 Code of Federal Regulations sections 62.27 and 62.28).

K. Notwithstanding section 41-192, the department may retain legal counsel and commence whatever actions are necessary to collect loan payments and charges if there is a default or a breach of a contract entered into pursuant to this section.

L. The director of the department may authorize the program to be implemented independent of the federal grants for state loan repayment program based on the needs of this state.

M. The department may use monies to develop programs such as resident-to-service loan repayment and employer recruitment assistance to increase participation in the primary care provider loan repayment program. The department may use private donations, grants and federal monies to implement, support, promote or maintain the program.

§ 36-2173 Obstetrical practitioners; underserved areas; payment of insurance premiums; prioritization

A. A physician or an advance practice provider who provides obstetrical services in rural areas of this state may apply for and receive financial assistance to offset medical malpractice premium expenses.

B. To be qualified for assistance, a person shall apply to the department on a form and in a manner prescribed by the department and shall meet the following requirements:

1. Have current obstetrical delivery privileges at one or more hospitals that are located in rural areas of this state and that are not operated by the federal government.

2. Have a contract with the Arizona health care cost containment system administration for obstetrical services with one or more of the system's prepaid contractors.

3. Be licensed under title 32, chapter 13, 15, 17 or 25.

4. Personally incur malpractice insurance costs.

C. The department shall establish an index that uses indicators to determine a score for each applicant service area. These indicators shall include:

1. The availability of obstetrical services based on a population to provider ratio.

2. The area's geographic accessibility to obstetrical services.

3. The percentage of the area's population that is at or below a designated federal poverty level.

D. The department shall identify physicians and advance practice providers who are practicing in medically underserved areas and shall notify them of the eligibility for assistance under this section. A physician or advance practice provider shall submit an application for assistance within thirty days of receiving the notification. The department shall offer assistance to qualified applicants based on the ranking of the area in which the applicant serves as established under subsection C of this section. The applicant shall enter into a contract with the department under which the applicant agrees to remain in practice in the specific area for one year. These contracts are exempt from the requirements of title 41, chapter 23.

E. Family physicians and advance practice providers who perform less than fifty-one deliveries per year and who are required to pay an additional premium to perform obstetrical services are eligible to receive an amount of not more than five thousand dollars. Family physicians and obstetricians who perform more than fifty deliveries per year are eligible to receive an amount of not more than ten thousand dollars.

F. The health care provider shall submit a report to the department that contains statistical information required by the department and that identifies the number of women to whom the provider has provided medical services during childbirth, the women's ages, the number of prenatal visits each woman received, the number of these women who are enrolled in the Arizona health care cost containment system and the women's insurance status.

§ 36-2174 Rural private primary care provider loan repayment program; private practice; rules

A. Subject to the availability of monies, the department shall establish a rural private primary care provider loan repayment program for physicians, dentists, pharmacists, behavioral health providers and advance practice providers with current or prospective rural primary care practices located in federally designated health professional shortage areas or medically underserved areas in this state, as prescribed in section 36-2352. To be eligible to participate in the program, an applicant shall agree to provide organized, discounted, sliding fee scale services for medically uninsured individuals from families with annual incomes below two hundred percent of the federal poverty guidelines as established annually by the United States department of health and human services. An applicant who works at an Indian health service or tribal facility is not required to provide a sliding fee scale to be eligible for the program. The department shall approve the sliding fee scale used by the provider. The provider shall ensure notice to consumers of the availability of these services. The department shall give preference to applicants who agree to serve in rural areas.

B. Except as provided in section 36-2172, subsection B, paragraph 2, the program established pursuant to this section and loan repayment contracts made pursuant to this section shall comply with the requirements of section 36-2172.

C. The department may apply for and receive private donations and grant monies to implement the rural private primary care provider loan repayment program established pursuant to this section.

D. The department shall adopt rules to cancel or suspend a loan repayment contract, impose a penalty for default or find a person in default of a contract.

§ 36-2175 Behavioral health care provider loan repayment program; purpose; eligibility; default; use of monies

A. The behavioral health care provider loan repayment program is established in the department to pay off portions of educational loans taken out by behavioral health care providers and nurses, including behavioral health technicians, behavioral health nurse practitioners, psychiatric nurse practitioners and licensed practical nurses, physicians, psychiatrists, and psychologists who serve in behavioral health facilities, including the Arizona state hospital, behavioral health residential facilities and secure behavioral health residential facilities.

B. The department shall prescribe application and eligibility requirements. To be eligible to participate in the behavioral health care provider loan repayment program, an applicant shall meet at least the following requirements:

1. Have completed the final year of a course of study or program approved by recognized accrediting agencies for higher education in a health profession licensed pursuant to title 32 or hold an active license in a health profession licensed pursuant to title 32.

2. Demonstrate current employment providing direct patient care with a public or nonprofit entity located and providing services in a behavioral health hospital, a behavioral health residential facility or a secure behavioral health residential facility in this state.

3. Demonstrate that the current employer is contracted with the Arizona health care cost containment system to provide services.

4. Not be participating in any other loan repayment program established by this article.

C. In addition to the requirements of subsection B of this section, an applicant who is a physician shall have completed a professional residency or certification program in behavioral health care.

D. A behavioral health care provider or nurse who participates in the behavioral health care provider loan repayment program shall initially contract with the department to provide services pursuant to this section for at least two years.

E. In making recommendations for the behavioral health care provider loan repayment program, the department shall give priority to applicants who intend to practice in the Arizona state hospital, a behavioral health residential facility or a secure behavioral health residential facility in this state.

F. All loan repayment contract obligations are subject to the availability of monies and legislative appropriation. The department may cancel or suspend a loan repayment contract based on unavailability of monies for the program. The department is not liable for any claims, actual damages or consequential damages arising out of a cancellation or suspension of a contract.

G. This section does not prevent the department from encumbering an amount that is sufficient to ensure payment of each behavioral health care provider loan for the services rendered during a contract period.

H. The department shall issue program monies to pay behavioral health care provider loans that are limited to the amount of principal, interest and related expenses of educational loans, not to exceed the behavioral health care provider's or nurse's total student loan indebtedness, according to the following schedule:

1. For the first two years of service, a maximum of $50,000.

2. For subsequent years, a maximum of $25,000.

I. A participant in the behavioral health care provider loan repayment program who breaches the loan repayment contract by failing to begin or to complete the obligated services is liable for liquidated damages in an amount equivalent to the amount that would be owed for default as determined and authorized by the department. The department may waive the liquidated damages provisions of this subsection if it determines that death or permanent physical disability accounted for the failure of the participant to fulfill the contract. The department may prescribe additional conditions for default, cancellation, waiver or suspension.

J. Notwithstanding section 41-192, the department may retain legal counsel and commence actions that are necessary to collect loan payments and charges if there is a default or a breach of a contract entered into pursuant to this section.

K. The department may use monies to develop programs such as resident-to-service loan repayment and employer recruitment assistance to increase participation in the behavioral health care provider loan repayment program. The department may use private donations, grants and federal monies to implement, support, promote or maintain the program.

Chapter 21.1 Emergency Medical Services

Article 1 General Provisions

§ 36-2201 Definitions

In this chapter, unless the context otherwise requires:

1. "Administrative medical direction" means supervision of emergency medical care technicians by a base hospital medical director, administrative medical director or basic life support medical director. For the purposes of this paragraph, "administrative medical director" means a physician who is licensed pursuant to title 32, chapter 13 or 17 and who provides direction within the emergency medical services and trauma system.

2. "Advanced emergency medical technician" means a person who has been trained in an advanced emergency medical technician program certified by the director or in an equivalent training program and who is certified by the director to render services pursuant to section 36-2205.

3. "Advanced life support" means the level of assessment and care identified in the scope of practice approved by the director for the advanced emergency medical technician, emergency medical technician I-99 and paramedic.

4. "Advanced life support base hospital" means a health care institution that offers general medical and surgical services, that is certified by the director as an advanced life support base hospital and that is affiliated by written agreement with a licensed ambulance service, municipal rescue service, fire department, fire district or health services district for medical direction, evaluation and control of emergency medical care technicians.

5. "Ambulance":

(a) Means any publicly or privately owned surface, water or air vehicle, including a helicopter, that contains a stretcher and necessary medical equipment and supplies pursuant to section 36-2202 and that is especially designed and constructed or modified and equipped to be used, maintained or operated primarily to transport individuals who are sick, injured or wounded or who require medical monitoring or aid.

(b) Does not include a surface vehicle that is owned and operated by a private sole proprietor, partnership, private corporation or municipal corporation for the emergency transportation and in-transit care of its employees or a vehicle that is operated to accommodate an incapacitated person or person with a disability who does not require medical monitoring, care or treatment during transport and that is not advertised as having medical equipment and supplies or ambulance attendants.

6. "Ambulance attendant" means any of the following:

(a) An emergency medical technician, an advanced emergency medical technician, an emergency medical technician I-99 or a paramedic whose primary responsibility is the care of patients in an ambulance and who meets the standards and criteria adopted pursuant to section 36-2204.

(b) An emergency medical responder who is employed by an ambulance service operating under section 36-2202 and whose primary responsibility is driving an ambulance.

(c) A physician who is licensed pursuant to title 32, chapter 13 or 17.

(d) A professional nurse who is licensed pursuant to title 32, chapter 15 and who meets the state board of nursing criteria to care for patients in the prehospital care system.

(e) A professional nurse who is licensed pursuant to title 32, chapter 15 and whose primary responsibility is the care of patients in an ambulance during an interfacility transport.

7. "Ambulance service" means a person who owns and operates one or more ambulances.

8. "Basic life support" means the level of assessment and care identified in the scope of practice approved by the director for the emergency medical responder and emergency medical technician.

9. "Bureau" means the bureau of emergency medical services and trauma system in the department.

10. "Centralized medical direction communications center" means a facility that is housed within a hospital, medical center or trauma center or a freestanding communication center that meets the following criteria:

(a) Has the ability to communicate with ambulance services and emergency medical services providers rendering patient care outside of the hospital setting via radio and telephone.

(b) Is staffed twenty-four hours a day seven days a week by at least a physician licensed pursuant to title 32, chapter 13 or 17.

11. "Certificate of necessity" means a certificate that is issued to an ambulance service by the department and that describes the following:

(a) The service area.

(b) The level of service.

(c) The type of service.

(d) The hours of operation.

(e) The effective date.

(f) The expiration date.

(g) The legal name and address of the ambulance service.

(h) The any limiting or special provisions the director prescribes.

12. "Council" means the emergency medical services council.

13. "Department" means the department of health services.

14. "Director" means the director of the department of health services.

15. "Emergency medical care technician" means an individual who has been certified by the department as an emergency medical technician, an advanced emergency medical technician, an emergency medical technician I-99 or a paramedic.

16. "Emergency medical responder" as an ambulance attendant, whose primary responsibility is driving an ambulance, means a person who has successfully completed training in an emergency medical responder program that is certified by the director or is approved by the emergency medical services provider's administrative medical director on file with the department or in an equivalent training program.

17. "Emergency medical responder program" means a program that has been submitted for review by the department and includes at least the following:

(a) Emergency vehicle driver training.

(b) Cardiopulmonary resuscitation certification.

(c) Automated external defibrillator training.

(d) Training in the use of noninvasive diagnostic devices, including blood glucose monitors and pulse oximeters.

(e) Training on obtaining a patient's vital signs, including blood pressure, pulse and respiratory rate.

18. "Emergency medical services" means those services required following an accident or an emergency medical situation:

(a) For on-site emergency medical care.

(b) To transport the sick or injured by a licensed ground or air ambulance.

(c) In using emergency communications media.

(d) In using emergency receiving facilities.

(e) In administering initial care and preliminary treatment procedures by emergency medical care technicians.

19. "Emergency medical services provider" means any governmental entity, quasi-governmental entity or corporation whether public or private that renders emergency medical services in this state.

20. "Emergency medical technician" means a person who has been trained in an emergency medical technician program certified by the director or in an equivalent training program and who is certified by the director as qualified to render services pursuant to section 36-2205.

21. "Emergency receiving facility" means a licensed health care institution that offers emergency medical services, is staffed twenty-four hours a day and has a physician on call.

22. "Epinephrine delivery system" means a single-use device or product that contains a premeasured dose of epinephrine and that is approved by the United States food and drug administration to prevent or treat a life-threatening allergic reaction.

23. "Fit and proper" means that the director determines that an applicant for a certificate of necessity or a certificate holder has the expertise, integrity, fiscal competence and resources to provide ambulance service in the service area.

24. "Medical record" means any patient record, including clinical records, prehospital care records, medical reports, laboratory reports and statements, any file, film, record or report or oral statements relating to diagnostic findings, treatment or outcome of patients, whether written, electronic or recorded, and any information from which a patient or the patient's family might be identified.

25. "National certification organization" means a national organization that tests and certifies the ability of an emergency medical care technician and whose tests are based on national education standards.

26. "National education standards" means the emergency medical services education standards of the United States department of transportation or other similar emergency medical services education standards developed by that department or its successor agency.

27. "Paramedic" means a person who has been trained in a paramedic program certified by the director or in an equivalent training program and who is certified by the director to render services pursuant to section 36-2205.

28. "Physician" means any person licensed pursuant to title 32, chapter 13 or 17.

29. "Police dog":

(a) Means a specially trained dog that is owned or used by a law enforcement department or agency of this state or any political subdivision of this state and that is used in the course of the department's or agency's official work.

(b) Includes a search and rescue dog, service dog, accelerant detection canine or other dog that is in use by the law enforcement department or agency for official duties.

30. "Stretcher van" means a vehicle that contains a stretcher and that is operated to accommodate an incapacitated person or person with a disability who does not require medical monitoring, aid, care or treatment during transport.

31. "Suboperation station" means a physical facility or location at which an ambulance service conducts operations for the dispatch of ambulances and personnel and that may be staffed twenty-four hours a day or less as determined by system use.

32. "Trauma center" means any acute care hospital that provides in-house twenty-four-hour daily dedicated trauma surgical services that is designated pursuant to section 36-2225.

33. "Trauma registry" means data collected by the department on trauma patients and on the incidence, causes, severity, outcomes and operation of a trauma system and its components.

34. "Trauma system" means an integrated and organized arrangement of health care resources having the specific capability to perform triage, transport and provide care.

35. "Validated testing procedure" means a testing procedure that includes practical skills, or attests practical skills proficiency on a form developed by the department by the educational training program, identified pursuant to section 36-2204, paragraph 2, that is certified as valid by an organization capable of determining testing procedure and testing content validity and that is recommended by the medical direction commission and the emergency medical services council before the director's approval.

36. "Wheelchair van" means a vehicle that contains or that is designed and constructed or modified to contain a wheelchair and that is operated to accommodate an incapacitated person or person with a disability who does not require medical monitoring, aid, care or treatment during transport.

§ 36-2202 Duties of the director; qualifications of medical director

A. The director shall:

1. Appoint a medical director of the emergency medical services and trauma system.

2. Adopt standards and criteria for the denial or granting of certification and recertification of emergency medical care technicians. These standards shall allow the department to certify qualified emergency medical care technicians who have completed statewide standardized training required under section 36-2204, paragraph 1 and a standardized certification test required under section 36-2204, paragraph 2, who hold valid certification with a national certification organization or who have completed training and testing by the United States armed forces at a level comparable to the national standards for emergency medical care technicians. Before the director may consider approving a statewide standardized training or a standardized certification test, or both, each of these must first be recommended by the medical direction commission and the emergency medical services council to ensure that the standardized training content is consistent with national education standards and that the standardized certification test examines comparable material to that examined in the tests of a national certification organization.

3. Adopt standards and criteria that pertain to the quality of emergency care pursuant to section 36-2204.

4. Adopt rules necessary to carry out this chapter. Each rule shall identify all sections and subsections of this chapter under which the rule was formulated.

5. Adopt reasonable medical equipment, supply, staffing and safety standards, criteria and procedures to issue a certificate of registration to operate an ambulance.

6. Maintain a state system for recertifying emergency medical care technicians, except as otherwise provided by section 36-2202.01, that is independent from any national certification organization recertification process. This system shall allow emergency medical care technicians to choose to be recertified under the state or the national certification organization recertification system subject to subsection H of this section.

B. Emergency medical technicians who choose the state recertification process shall recertify in one of the following ways:

1. Successfully completing an emergency medical technician refresher course approved by the department.

2. Successfully completing an emergency medical technician challenge course approved by the department.

3. For emergency medical care technicians who are currently certified at the emergency medical technician level by the department, attesting on a form provided by the department that the applicant holds a valid and current cardiopulmonary resuscitation certification, has and will maintain documented proof of a minimum of twenty-four hours of continuing medical education within the last two years consistent with department rules and has functioned in the capacity of an emergency medical technician for at least two hundred forty hours during the last two years.

C. After consultation with the emergency medical services council, the director may authorize pilot programs designed to improve the safety and efficiency of ambulance inspections for governmental or quasi-governmental entities that provide emergency medical services in this state.

D. The rules, standards and criteria adopted by the director pursuant to subsection A, paragraphs 2, 3, 4 and 5 of this section shall be adopted in accordance with title 41, chapter 6, except that the director may adopt on an emergency basis pursuant to section 41-1026 rules relating to the regulation of ambulance services in this state necessary to protect the public peace, health and safety in advance of adopting rules, standards and criteria as otherwise provided by this subsection.

E. The director may waive the requirement for compliance with a protocol adopted pursuant to section 36-2205 if the director determines that the techniques, drug formularies or training makes the protocol inconsistent with contemporary medical practices.

F. The director may suspend a protocol adopted pursuant to section 36-2205 if the director does all of the following:

1. Determines that the rule is not in the public's best interest.

2. Initiates procedures pursuant to title 41, chapter 6 to repeal the rule.

3. Notifies all interested parties in writing of the director's action and the reasons for that action. Parties interested in receiving notification shall submit a written request to the director.

G. To be eligible for appointment as the medical director of the emergency medical services and trauma system, the person shall be qualified in emergency medicine and shall be licensed as a physician in one of the states of the United States.

H. Applicants for certification shall apply to the director for certification. Emergency medical care technicians shall apply for recertification to the director every two years. The director may extend the expiration date of an emergency medical care technician's certificate for thirty days. The department shall establish a fee for this extension by rule. Emergency medical care technicians shall pass an examination administered by the department as a condition for recertification only if required to do so by the advanced life support base hospital's medical director or the emergency medical care technician's medical director.

I. The medical director of the emergency medical services and trauma system is exempt from title 41, chapter 4, articles 5 and 6 and is entitled to receive compensation pursuant to section 38-611, subsection A.

J. The standards, criteria and procedures adopted by the director pursuant to subsection A, paragraph 5 of this section shall require that ambulance services:

1. Providing interfacility transportation in any certificate of necessity area of this state have one ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (a), (c), (d) or (e) and one ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (a), (b), (c), (d), or (e) staffing an ambulance while transporting a patient. If an ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (b) is staffing the ambulance pursuant to this paragraph, that ambulance attendant may exclusively drive the ambulance.

2. Serving a rural or wilderness certificate of necessity area with a population of less than ten thousand persons have at least one ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (a), (c), (d) or (e) and one ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (a) or (b) staffing an ambulance while transporting a patient.

3. Serving a population of ten thousand persons or more have at least one ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (a) and one ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (a), (c), (d) or (e) staffing an ambulance while transporting a patient.

K. If the department determines there is not a qualified administrative medical director, the department shall ensure the provision of administrative medical direction for an emergency medical technician if the emergency medical technician meets all of the following criteria:

1. Is employed by a nonprofit or governmental provider employing less than twelve full-time emergency medical technicians.

2. Stipulates to the inability to secure a physician who is willing to provide administrative medical direction.

3. Stipulates that the provider agency does not provide administrative medical direction for its employees.

§ 36-2202.01 Test administration

The test for certification or recertification, pursuant to section 36-2202, may be administered by the department or one of the following approved by the director:

1. Representatives appointed by the director in consultation with the medical director of the emergency medical services and trauma system.

2. A testing facility.

3. An emergency medical services provider or ambulance service provider that has a training or education program. Emergency medical service providers or ambulance service providers may enter into contracts or intergovernmental agreements with other public entities for the purposes of emergency medical care technician testing and recertification testing. The training or education program must be staffed by at least three full-time persons who provide education and training to emergency services personnel. Two of these persons must be certified at a minimum of emergency medical care technician or higher and at least one person must be a paramedic or a registered nurse licensed pursuant to title 32, chapter 15. The medical director of an emergency medical training or education program must be a physician licensed pursuant to title 32, chapter 13 or 17.

§ 36-2203 Emergency medical services council; membership; delayed repeal

(Rpld. 1/2/28)

A. The emergency medical services council is established. The medical director of the emergency medical services and trauma system shall chair the council. The council is composed of the director of the department of public safety and the governor's highway safety coordinator, or their designees, and the following members who are appointed by the governor to three-year terms:

1. One representative from each of the four local emergency medical services coordinating systems prescribed in section 36-2210.

2. One physician specializing in emergency medicine from each of the four local emergency medical services coordinating regions prescribed in section 36-2210.

3. One professional nurse who is licensed pursuant to title 32, chapter 15 and who specializes in emergency medicine.

4. One emergency medical care technician.

5. Two representatives from ambulance service corporations.

6. Two hospital administrators, one of whom represents a county with a population of less than five hundred thousand persons.

7. One representative from each of the three employers of the largest number of emergency medical care technicians and paramedics.

8. One representative from a nongovernmental employer of emergency medical technicians I-99.

9. One representative from the state fire districts.

10. One physician who is licensed pursuant to title 32, chapter 13 or 17 and who specializes in trauma surgery.

11. One representative of a prehospital emergency medical training program.

12. Six public members.

13. One representative of a volunteer medical rescue program.

B. Public members of the council are eligible to receive compensation pursuant to section 38-611.

C. This section is repealed from and after January 1, 2028.

§ 36-2203.01 Medical direction commission; membership; duties

A. The medical direction commission is established consisting of the following twelve members:

1. The medical director of the emergency medical services and trauma system in the department of health services who shall serve as chairman.

2. The four emergency physicians who serve on the emergency medical services council pursuant to section 36-2203, subsection A, paragraph 2.

3. One physician who specializes in toxicology and who has a demonstrated interest or expertise in emergency medical services systems.

4. One full-time faculty representative of an emergency medicine residency program approved by a residency review commission.

5. One physician who specializes in trauma surgery and who has a demonstrated interest or expertise in emergency medical services systems.

6. One emergency physician who has a full-time practice based in a rural area.

7. One physician who specializes in severe acute head injury treatment or spinal cord care and who has a demonstrated interest or expertise in emergency medical services systems.

8. One physician who specializes in pediatric medicine and who has a demonstrated interest or expertise in emergency medical services systems.

9. One physician who specializes in cardiac care and who has a demonstrated interest or expertise in emergency medical services systems.

B. The governor shall make all appointments of members designated pursuant to subsection A, paragraphs 3 through 9 of this section. The governor may accept recommendations for the appointment of commission members from the following organizations:

1. The Arizona chapter of the American college of emergency physicians.

2. The Arizona chapter of the American college of surgeons.

3. The Arizona chapter of the American college of pediatrics.

4. The Arizona chapter of the American college of physicians.

C. The commission shall assist the director in developing medical protocols governing the medical treatments, procedures, medications, training and techniques that may be administered or performed by each classification of emergency medical care technicians pursuant to section 36-2205.

D. Members of the commission serve three year terms.

E. Members of the commission are not entitled to compensation but are entitled to reimbursement of expenses pursuant to title 38, chapter 4, article 2.

§ 36-2204 Medical control

The medical director of the statewide emergency medical services and trauma system, the emergency medical services council and the medical direction commission shall recommend to the director the following standards and criteria that pertain to the quality of emergency patient care:

1. Statewide standardized training, certification and recertification standards for all classifications of emergency medical care technicians.

2. A standardized and validated testing procedure for all classifications of emergency medical care technicians.

3. Medical standards for certification and recertification of training programs for all classifications of emergency medical care technicians.

4. Standardized continuing education criteria for all classifications of emergency medical care technicians.

5. Medical standards for certification and recertification of certified emergency receiving facilities and advanced life support base hospitals and approval of physicians providing medical control or medical direction for any classification of emergency medical care technicians who are required to be under medical control or medical direction.

6. Standards and mechanisms for monitoring and ongoing evaluation of performance levels of all classifications of emergency medical care technicians, emergency receiving facilities and advanced life support base hospitals and approval of physicians providing medical control or medical direction for any classification of emergency medical care technicians who are required to be under medical control or medical direction.

7. Objective criteria and mechanisms for decertification of all classifications of emergency medical care technicians, emergency receiving facilities and advanced life support base hospitals and for disapproval of physicians providing medical control or medical direction for any classification of emergency care technicians who are required to be under medical control or medical direction.

8. Medical standards for nonphysician prehospital treatment and prehospital triage of patients requiring emergency medical services.

9. Standards for emergency medical dispatcher training, including prearrival instructions. For the purposes of this paragraph, "emergency medical dispatch" means the receipt of calls requesting emergency medical services and the response of appropriate resources to the appropriate location.

10. Standards for a quality assurance process for components of the statewide emergency medical services and trauma system, including standards for maintaining the confidentiality of the information considered in the course of quality assurance and the records of the quality assurance activities pursuant to section 36-2403.

11. Standards for ambulance service and medical transportation that give consideration to the differences between urban, rural and wilderness areas.

12. Standards to allow an ambulance to transport a patient to a health care institution that is licensed as a special hospital and that is physically connected to an emergency receiving facility.

§ 36-2204.01 Emergency medical services providers; centralized medical direction communications center

An ambulance service or emergency medical services provider may provide centralized medical direction through a centralized medical direction communications center.

§ 36-2204.02 Emergency medical services providers; investigations

A. In lieu of the requirements of section 36-2211, the director may authorize an ambulance service or emergency medical services provider to investigate, discipline or determine the fitness of an employee to continue to provide patient care. This authority does not apply to the conviction of, a plea of guilty or no contest to or admission in a court proceeding to the elements of a felony. The employer listed on the emergency medical care technician's or ambulance attendant's certification or recertification application may limit the practice of the emergency medical care technician or ambulance attendant during the investigation if the employer meets all of the following requirements:

1. Has separate investigative or supervisory staff to conduct an investigation.

2. Has an employee assistance program for counseling.

3. Has policies and procedures for drug testing through urinalysis or other generally accepted methods.

4. Has policies and procedures for monitoring of personnel who are suspected of or who have been convicted of substance abuse.

B. An ambulance service or emergency medical services provider that conducts its own disciplinary investigations pursuant to subsection A of this section shall report the following to the medical director of the emergency medical services and trauma system:

1. The nature of the allegation.

2. The level of patient care being delivered by the employee and the supervision of the employee during the investigation or rehabilitative period, or both.

3. The final outcome of the investigation and the final recommendation on the employee's certification status.

C. The decisions of the employer are appealable under the employer's personnel policies and procedures. Except as provided in section 41-1092.08, subsection H, the final administrative decisions of the director are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 36-2205 Permitted treatment and medication; certification requirement; protocols

A. The director, in consultation with the medical director of the emergency medical services and trauma system, the emergency medical services council and the medical direction commission, shall establish protocols, which may include training criteria, governing the medical treatments, procedures, medications and techniques that may be administered or performed by each classification of emergency medical care technician. These protocols shall consider the differences in treatments and procedures for regional, urban, rural and wilderness areas and shall require that emergency medical care technicians authorized to perform advanced life support procedures render these treatments, procedures, medications or techniques only under the direction of a physician.

B. The protocols adopted by the director pursuant to this section are exempt from title 41, chapter 6.

C. Notwithstanding subsection B of this section, a person may petition the director, pursuant to section 41-1033, to amend a protocol adopted by the director.

D. In consultation with the medical director of the emergency medical services and trauma system, the emergency medical services council and the medical direction commission, the director shall establish protocols for emergency medical providers to refer and advise a patient or transport a patient by the most appropriate means to the most appropriate provider of medical services based on the patient's condition. The protocols shall consider the differences in treatments and procedures for regional, urban, rural and wilderness areas and shall require that emergency medical care technicians authorized to perform advanced life support procedures render these treatments, procedures, medications or techniques only under the direction of a physician.

E. The protocols established pursuant to subsection D of this section shall include triage and treatment protocols that allow all classifications of emergency medical care technicians responding to a person who has accessed 911, or a similar public dispatch number, for a condition that does not pose an immediate threat to life or limb to refer and advise a patient or transport a patient to the most appropriate health care institution, as defined in section 36-401, based on the patient's condition, taking into consideration factors including patient choice, the patient's health care provider, specialized health care facilities and local protocols.

§ 36-2206 Immunity; emergency instructions

A. Any health care provider licensed or certified to practice in this state who in good faith gives emergency instructions to emergency medical care technicians at the scene of an emergency is not liable for any civil damages as a result of issuing those instructions.

B. Any emergency medical services or health care provider who in good faith provides prearrival instructions following the minimum standards established by the state pursuant to section 36-2204, paragraph 9 is not liable for any civil damages as a result of issuing these instructions.

§ 36-2207 Authorization for political subdivisions to participate

Any city, town, county, fire district or health service district of this state may budget for and expend monies for participation in emergency paramedic programs and may enter into intergovernmental agreements for the delivery of such services pursuant to title 11, chapter 7, article 3.

§ 36-2208 Bureau of emergency medical services and trauma system

A. There is established within the department a bureau of emergency medical services and trauma system that is responsible for coordinating, establishing and administering a statewide system of emergency medical services, trauma care and a trauma registry.

B. This chapter does not prevent any individual, law enforcement officer, public agency or member of a city, town, fire district or volunteer fire department from rendering on-site emergency medical care or, if, in terms of the existing medical situation, it is deemed not advisable to await the arrival of an ambulance, from transporting emergency medical patients to a hospital or an emergency receiving facility, except that if any patient objects on religious grounds, that patient shall not be administered any medical treatment or be transported to a hospital or an emergency receiving facility.

C. The director shall develop an annual statewide emergency medical and trauma services plan and submit that plan to the council for review and approval. The statewide plan shall then be submitted to the governor for final adoption. Before submitting the plan to the governor, the director shall accept comments from the authorized local agencies and governmental entities.

D. A local emergency medical services coordinating system shall develop a regional emergency medical services plan that includes a needs assessment and submit the plan to the director and to the authorized local agencies within the area. The regional plans shall be integrated into the statewide plan by the department.

E. The state plan shall contain a budget component for funding local and state emergency medical services systems from the emergency medical services operating fund established pursuant to section 36-2218 based on the needs assessment of the local emergency medical services coordinating system plans. The components shall be included in the department's budget through the normal appropriation process.

§ 36-2209 Powers and duties of the director

A. The director shall:

1. Appoint and define the duties and prescribe the terms of employment of all employees of the bureau.

2. Adopt rules necessary for the operation of the bureau and for carrying out the purposes of this chapter.

3. Cooperate with and assist the personnel of emergency receiving facilities and other health care institutions in preparing a plan to be followed by these facilities and institutions in the event of a major disaster.

4. Cooperate with the state director of emergency management when a state of emergency or a state of war emergency has been declared by the governor.

B. The director may:

1. Request the cooperation of utilities, communications media and public and private agencies to aid and assist in the implementation and maintenance of a statewide emergency medical services system.

2. Enter into contracts and agreements with any local governmental entity, agency, facility or group that provides a similar program of emergency medical services in a contiguous state.

3. Enter into contracts and agreements for the acquisition and purchase of any equipment, tools, supplies, materials and services necessary in the administration of this chapter.

4. Enter into contracts with emergency receiving facilities, governmental entities, emergency rescue services and ambulance services, and the director may establish emergency medical services, including emergency receiving facilities, if necessary to assure the availability and quality of these services.

5. Accept and expend federal funds and private grants, gifts, contributions and devises to assist in carrying out the purposes of this chapter. These funds do not revert to the state general fund at the close of a fiscal year.

6. Establish an emergency medical services notification system that uses existing telephone communications networks.

7. Contract with private telephone companies for the establishment of a statewide emergency reporting telephone number.

8. Authorize the testing entity to collect fees determined by the director. In determining fees for testing entities the director shall consider the fees required by national certification organizations.

§ 36-2210 Local emergency medical services coordinating systems

The department shall contract with a local emergency medical services coordinating system that:

1. Conducts needs assessments and plans and coordinates a regional emergency medical and trauma services system within a designated planning area.

2. Has a governing board.

3. Demonstrates continued support annually by action of the governing bodies of the counties, cities, towns and fire districts within the planning area representing a majority of the total population of the area. For the purposes of this paragraph, the county represents the unincorporated areas of the county, except fire districts.

4. Offers emergency medical programs for the effective and coordinated delivery of emergency medical services if authorized by its governing board.

§ 36-2211 Grounds for censure, probation, suspension or revocation of emergency medical care technician certificate; proceedings; civil penalty; judicial review

A. The medical director of the emergency medical services and trauma system, on behalf of the director, may censure or place on probation an emergency medical care technician or suspend or revoke the certification issued to any emergency medical care technician pursuant to this article for any of the following causes:

1. Unprofessional conduct.

2. Conviction of, a plea of guilty or no contest to or admission in a court proceeding to the elements of a felony or of a misdemeanor involving moral turpitude during the time that a person is certified as an emergency medical care technician. The record of conviction or a copy of the record certified by the clerk of the court or by the judge by whom the person was sentenced is conclusive evidence of conviction.

3. Physical or mental incompetence to provide emergency medical services as an emergency medical care technician.

4. Gross incompetence or gross negligence in the provision of emergency medical services as an emergency medical care technician.

5. Wilful fraud or misrepresentation in the provision of emergency medical services as an emergency medical care technician or in the admission to that practice.

6. Use of any narcotic or dangerous drug or intoxicating beverage to an extent that the use impairs the ability to safely conduct the provision of emergency medical services as an emergency medical care technician.

7. The wilful violation of this chapter or the rules adopted pursuant to this chapter.

B. The medical director of the emergency medical services and trauma system on the medical director's own motion may investigate any evidence that appears to show the existence of any of the causes set forth in subsection A of this section. The medical director shall investigate the report under oath of any person that appears to show the existence of any of the causes set forth in subsection A of this section. Any person reporting pursuant to this section who provides the information in good faith is not subject to liability for civil damages as a result.

C. If, in the opinion of the medical director of the emergency medical services and trauma system, it appears the information is or may be true, the medical director shall request an informal interview with the emergency medical care technician. The interview shall be requested by the medical director in writing, stating the reasons for the interview and setting a date not less than ten days from the date of the notice for conducting the interview. The written request for an interview shall also state that if the medical director finds that cause exists for censure or probation or the suspension or revocation of the certificate the medical director may impose a civil penalty of not more than three hundred fifty dollars for each occurrence of cause as provided in subsection A of this section. The request for an interview shall also state that each day a cause for discipline exists constitutes a separate offense.

D. Following the investigation, including an informal interview if requested, and together with any mental, physical or professional competence examination as the medical director of the emergency medical services and trauma system deems necessary, the medical director may proceed in the following manner:

1. If the medical director finds that the evidence obtained pursuant to subsections B and C of this section does not warrant censure or probation of the emergency medical care technician or suspension or revocation of a certificate, the medical director shall notify the emergency medical care technician and terminate the investigation.

2. If the medical director finds that the evidence obtained pursuant to subsections B and C of this section does not warrant suspension or revocation of a certificate but does warrant censure or probation, the medical director may do either of the following:

(a) Issue a decree of censure.

(b) Fix a period and terms of probation best adapted to protect the public health and safety and rehabilitate and educate the emergency medical care technician. Failure to comply with any probation is cause for filing a complaint and holding a formal hearing as provided in paragraph 3 of this subsection.

3. If the medical director finds that the evidence obtained pursuant to subsections B and C of this section warrants suspension or revocation of a certificate issued under this article, or if the emergency medical care technician under investigation refuses to attend the informal interview authorized in subsection C of this section, a complaint shall be issued and formal proceedings shall be initiated. All proceedings pursuant to this paragraph shall be conducted pursuant to title 41, chapter 6, article 10.

E. If after a hearing as provided in this section any cause for censure, probation, suspension or revocation is found to exist, the emergency medical care technician is subject to censure or probation or suspension or revocation of the certificate or any combination of these for a period of time or permanently and under conditions as the medical director of the emergency medical services and trauma system deems appropriate.

F. In addition to other disciplinary action provided pursuant to this section, the medical director of the emergency medical services and trauma system may impose a civil penalty of not more than three hundred fifty dollars for each occurrence of cause as provided in subsection A of this section not to exceed twenty-five hundred dollars. Each day that cause for discipline exists constitutes a separate offense. All monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

G. Except as provided in section 41-1092.08, subsection H, final decisions of the medical director of the emergency medical services and trauma system are subject to judicial review pursuant to title 12, chapter 7, article 6.

§ 36-2212 Certificate of registration to operate an ambulance; termination on change in ownership; fees

A. A person shall not operate an ambulance in this state unless the ambulance has a certificate of registration and complies with this article and the rules, standards and criteria adopted pursuant to this article.

B. A person may obtain a certificate of registration to operate an ambulance by submitting an application on a form prescribed by the director and by demonstrating to the director's satisfaction that the applicant is in compliance with this article and all rules, standards and criteria adopted by the director for the operation of an ambulance.

C. A certificate of registration issued under this section terminates on any change of ownership or control of the ambulance. Following any change of ownership, the new owner of an ambulance shall apply for and receive a new certificate of registration from the director before the ambulance may again be operated in this state. This subsection does not apply if an ambulance service borrows, leases, rents or otherwise obtains a registered ambulance from another ambulance service to temporarily replace an inoperable ambulance.

D. The department shall issue a certificate of registration to a person that complies with the requirements of this article and that pays an initial registration fee. A certificate of registration is valid for one year, but an ambulance service may request that the department issue an initial certificate of registration that expires before the end of one year in order for the department to conduct an annual inspection of all of the ambulance service's ambulances at one time. A person may renew a certificate of registration by complying with the requirements of this article and by paying a renewal fee prescribed by the director. The fee for initial registration and registration renewal shall not exceed $50 for each ambulance. The department shall base these fees on an amount that approximates the per vehicle costs incurred by the department to administer this chapter. The director shall deposit, pursuant to sections 35-146 and 35-147, fees collected under this subsection in the state general fund. The department shall not charge a registration fee for an ambulance to an ambulance service that operates an ambulance or ambulances only as a volunteer not-for-profit service.

§ 36-2213 Regulation of air ambulance services

The director shall adopt rules to establish minimum standards for the operation of air ambulance services that are necessary to assure the public health and safety. The director may use the current standards adopted by the commission on accreditation of air medical services. Each rule shall reference the specific authority from this chapter under which the rule was formulated. The rules shall provide for the department to do the following:

1. Establish standards and requirements relating to at least the following:

(a) Medical control plans. These plans shall conform to the standards adopted pursuant to section 36-2204, paragraph 9.

(b) Qualifications of the medical director of the air ambulance services.

(c) Operation of only those air ambulances registered pursuant to section 36-2212 and licensed pursuant to title 28, chapter 25.

2. Establish response times and operation times to assure that the health and safety needs of the public are met.

3. Establish standards for emergency medical dispatch training, including prearrival instruction. For the purposes of this paragraph, "emergency medical dispatch" means the receipt of calls requesting emergency medical services and the response of appropriate resources to the appropriate location.

4. Require the filing of run log information.

5. Issue, transfer, suspend or revoke air ambulance service licenses under terms and conditions consistent with this chapter. These rules shall be consistent for all ambulance services.

6. Investigate the operation of an air ambulance service including a person operating an ambulance that has not been issued a certificate of registration and conduct on-site investigations of facilities communications equipment, vehicles, procedures, materials and equipment.

7. Prescribe the terms of the air ambulance service license.

8. Prescribe the criteria for the air ambulance service license inspection process and for determining an air ambulance service's compliance with licensure requirements. The director shall accept proof that an air ambulance service is accredited by the commission on accreditation of air medical services in lieu of all licensing inspections required if the director receives a copy of the air ambulance service's accreditation report.

§ 36-2214 Air ambulance service license

A. A person shall not operate an air ambulance service in this state unless the air ambulance service is licensed and complies with this article and the rules adopted pursuant to this article.

B. On receipt of a properly completed application for initial licensure or relicensure on a form prescribed by the director, the director shall conduct an inspection of the air ambulance service as prescribed by this article. If an application for a license is submitted due to a planned change of ownership, the director shall determine the need for an inspection of the air ambulance service.

C. The director shall issue a license if the director determines that an applicant and the air ambulance service for which the license is sought comply with the requirements of this article and rules adopted pursuant to this article and the applicant agrees to carry out a plan acceptable to the director to eliminate any deficiencies.

§ 36-2215 Required insurance or financial responsibility; denial or revocation for failure to comply

A. The director shall not issue an air ambulance service license to an ambulance service unless the applicant for the license or the licensee files with the department a certificate of insurance completed by an insurance company that is authorized to transact business in this state or other evidence of financial responsibility in an amount that the director by rule determines is necessary to adequately protect the interest of the public. The applicant for a license or the licensee shall have malpractice and liability insurance that requires the insurer to compensate for injuries to persons and for loss or damage to property resulting from the negligent operation of the air ambulance service.

B. The director shall deny the application for a license or revoke the license of any air ambulance service that fails to comply with this section.

§ 36-2216 Prohibited acts; classification

A. It is unlawful for any person to operate an ambulance in this state which does not comply with the provisions of this article or the rules adopted by the director under this article.

B. A person who violates subsection A is guilty of a class 1 misdemeanor.

§ 36-2217 Exemption from regulation

A. This chapter does not apply to:

1. Vehicles used for the emergency transportation of persons injured at an industrial site.

2. Persons engaged in and vehicles used for air transportation of sick or injured people in a noncritical or nonemergency situation as determined by a physician.

3. Medical evacuation equipment used and owned by the department of public safety in air, ground or water evacuation and including fixed wing aircraft, helicopters, ground ambulances and similar ground conveyances, snowmobiles and water traversing equipment.

4. Vehicles provided or contracted for emergency medical services by a political subdivision if these vehicles are primarily used to provide on the scene stabilization of sick, injured, wounded, incapacitated or helpless persons.

5. Ambulances from other states that are:

(a) Responding to a major catastrophe or emergency in this state because there are insufficient registered ambulances in this state to respond in that situation.

(b) Operating either from a location outside of this state to transport a patient to a location within this state or operating from a location outside of this state and crossing through this state to transport a patient to a location outside this state.

6. Stretcher vans that meet the requirements of section 36-2223.

B. Except as provided in subsection A, paragraph 5, subdivision (a) of this section, an ambulance from another state shall not pick up a patient in this state and transport that patient to another location in this state unless that ambulance is registered under this chapter.

§ 36-2218 Emergency medical services operating fund

A. An emergency medical services operating fund is established. The director shall administer the fund. The emergency medical services operating fund shall consist of monies collected pursuant to sections 12-116.02 and 36-3251 and distributed pursuant to section 36-2219.01, subsection B, paragraph 2.

B. The director of the department of health services with advice from the council shall expend monies in the fund for funding local and state emergency medical services systems. Monies in the fund are subject to annual legislative appropriation.

§ 36-2219 Emergency medical care technicians; requirements; transportation

A. An emergency medical care technician shall comply with either emergency medical standards and protocols established by the regional council or the medical direction for the local jurisdiction when considering emergency transport, including the appropriate use of telecommunications.

B. An emergency medical care technician may not do either of the following:

1. Provide a patient with a presumptive medical diagnosis and use that medical diagnosis as the basis for counseling the patient to decline emergency medical services transportation.

2. Counsel a patient to decline emergency medical services transportation, except as part of a specific alternate destination or treat-and-refer program that includes quality management and comprehensive medical direction oversight.

C. An emergency medical care technician shall explain to a patient the risks and consequences to the patient's health of not being transported.

D. It is not a violation of this section for an emergency medical care technician to inform a patient of the patient's right to accept or decline emergency medical services transportation, unless the emergency medical care technician does so in an effort to coerce the patient to decline emergency medical services.

§ 36-2219.01 Medical services enhancement fund

A. A medical services enhancement fund is established consisting of monies collected pursuant to section 12-116.02. The state treasurer shall administer the fund.

B. On the first day of each month, the state treasurer shall distribute or deposit:

1. Fourteen and two-tenths per cent in the substance abuse services fund established pursuant to section 36-2005.

2. Forty-eight and nine-tenths per cent in the emergency medical services operating fund established pursuant to section 36-2218 of which at least eight per cent shall be used for personnel expenses, education, training and equipment purchases in cities or towns with a population of less than ninety thousand persons according to the most recent United States decennial census.

3. Twenty-two per cent in the spinal and head injuries trust fund established pursuant to section 41-3203.

4. Nine and four-tenths per cent in a separate account of the substance abuse services fund established by section 36-2005 for use in administering the provisions of section 36-141.

5. Five and five-tenths per cent in the state general fund.

C. Monies distributed pursuant to subsection B of this section constitute a continuing appropriation.

§ 36-2220 Records; confidentiality; definition

A. Information developed, records kept and data collected by the department or a political subdivision of this state for the purpose of administering or evaluating the Arizona emergency medical services system or for the trauma system are available to the public except:

1. Any patient record, including clinical records, prehospital care records, medical reports, laboratory statements and reports, any file, film, record or report or oral statement relating to diagnostic findings, treatment or outcome of patients, whether written or recorded, and any information from which a patient, the patient's family or the patient's health care provider or facility might be identified except records, files and information are available to the patient, the patient's guardian or the patient's agent.

2. Information obtained and data collected for purposes of chapter 25 or chapter 4, article 5 of this title.

B. Unless otherwise provided by law, all medical records developed and kept by a prehospital component of the statewide trauma system and information contained in these records are confidential and may not be released to the public without written authorization by the patient, the patient's guardian or the patient's agent.

C. Notwithstanding subsection B of this section, a prehospital incident history report completed and kept by a nonhospital political subdivision of this state is available to the public except for information in that report that is protected from disclosure by the laws of this state or federal law, including confidential patient treatment information.

D. Patient records and medical records covered by this section may be obtained pursuant to section 12-2294.01.

E. Information, documents and records received by the department or prepared by the department in connection with an investigation that is conducted pursuant to this article and that relates to emergency medical care technicians are confidential and are not subject to public inspection or civil discovery. The results of the investigation and the decision of the department are available to the public after the investigation is completed and the investigation file is closed.

F. For the purposes of this section, "prehospital incident history report" means a record of the prehospital response, nature of the incident and transportation of an emergency medical services patient that is documented on a prehospital incident history report.

§ 36-2221 Trauma center data; requirements; confidentiality; violation; classification

A. Trauma centers shall submit to the department a uniform data set for the trauma patient as prescribed by the department. Advanced life support base hospitals that are not trauma centers may also submit this data to the department. The director shall identify the categories of patients who are to be reported as trauma patients under this section.

B. The department shall provide quarterly trauma system data reports to each hospital and designated trauma center submitting data.

C. The department may authorize other persons and organizations to use state trauma registry data:

1. To study the sources and causes of trauma.

2. To evaluate the cost, quality, efficacy and appropriateness of diagnostic, therapeutic, rehabilitative and preventive services and programs that are related to trauma.

D. Information collected by the state trauma registry that can identify an individual is confidential and may be used only pursuant to this section. A person who discloses confidential information in violation of this section is guilty of a class 3 misdemeanor.

§ 36-2222 Trauma advisory board; membership; compensation; duties

A. The trauma advisory board is established and consists of the following members:

1. The medical director of the bureau of the emergency medical services and trauma system who shall chair the board.

2. The director of the department of public safety or the director's designee.

3. Four members representing the four regional emergency medical services coordinating councils.

4. Two members from trauma centers in this state.

5. A representative from a statewide organization representing a national college of surgeons that is a recognized, authoritative body representing national trauma services standards.

6. A representative from a statewide fire district association.

7. A representative from a statewide hospital association.

8. A representative from a federal Indian health services organization.

9. A representative from a national organization of emergency physicians that is a recognized, authoritative body representing national emergency medicine standards.

10. A representative from a national association of retired persons.

11. A representative from a statewide rehabilitation facility.

12. A representative from an urban advanced life support base hospital that is not a trauma center.

13. A representative from a rural advanced life support base hospital that is not a trauma center.

14. A representative from a statewide ambulance association.

15. A representative from a fire department in a county with a population of five hundred thousand persons or more according to the most recent United States decennial census.

16. A representative of a tribal health organization.

17. A representative from a statewide neurosurgical society.

18. A representative from a statewide pediatric organization.

19. A representative from a society of trauma nurses.

20. A representative from a national association of orthopedic trauma.

B. Except for board members who serve under subsection A, paragraphs 1 and 2 of this section, board members are appointed by the director and serve staggered three year terms.

C. The director shall accept recommendations for appointment of board members from organizations representing consumers, insurers and governmental agencies that have an interest in the development of a statewide trauma system, including statewide chapters of a national trauma society, a national emergency medical nurses association, a medical association and an aeromedical association. Wherever appropriate to the entity being represented, the director shall consider qualified licensed physicians with experience in trauma care in anesthesia, emergency medicine, neurosurgery, orthopedics and pediatrics, and licensed nurses with experience in prehospital emergency care or trauma care.

D. Board members are not eligible to receive compensation but are eligible for reimbursement of expenses under title 38, chapter 4, article 2.

E. The board shall:

1. Make recommendations on the initial and long-term processes for the verification and designation of trauma center levels, including the evaluation of trauma center criteria.

2. Make recommendations on the development and implementation of comprehensive regional emergency medical services and trauma system plans.

3. Make recommendations on the state emergency medical services and trauma system quality improvement processes, including the state trauma registry.

4. Submit a report to the director on or before October 1 of each year regarding the board's accomplishments and recommendations.

F. The chairperson may appoint subcommittees to assist the board in meeting the requirements of subsection E of this section.

§ 36-2223 Stretcher vans; wheelchair vans; use; restrictions

A. A stretcher van may transport a person who:

1. Needs routine transportation to or from a medical appointment or service if that person is convalescent or otherwise nonambulatory and does not require medical monitoring en route to the destination facility, or aid, care or treatment during transport.

2. Is an inpatient at a facility and needs transportation to another hospital for diagnostic tests if that person's physician authorizes the use of a stretcher van.

B. A stretcher van or wheelchair van shall not transport a person who:

1. Is being administered intravenous fluids.

2. Was administered a medication that might prevent that person from caring for himself.

3. Needs or may need oxygen unless that person's physician has prescribed oxygen as a self-administered therapy.

4. Needs or may need suctioning.

5. Has sustained an injury and has not yet been evaluated by a physician.

6. Is experiencing an acute condition or the exacerbation of a chronic condition or a sudden injury or illness.

7. Needs to be transported from one hospital to another hospital if the destination hospital is the same level or a higher level as the hospital of origin.

8. Is being evaluated in an emergency room and for any reason must be transported to another hospital for diagnostic tests that are not available at the first hospital.

9. Is being medically monitored at the sending facility and will continue to be medically monitored at the destination facility.

C. A stretcher van or wheelchair van shall not contain medical equipment or supplies or display any marking, symbols or warning devices that imply that it offers medical care or ambulance transportation.

D. A stretcher van shall not respond or transport a person if the request for service originated within a public dispatch system.

E. An ambulance service that provides both ambulances and stretcher vans or wheelchair vans shall not use a registered ambulance in place of a stretcher van or wheelchair van if a stretcher van or wheelchair van is specifically requested or if a stretcher van or wheelchair van may be used but is not immediately available.

F. A person transporting patients in stretcher vans or wheelchair vans in violation of the criteria in subsection B of this section or operating in violation of subsection C of this section may be determined by the department after notice and a hearing pursuant to section 36-2245 to have operated an unregistered ambulance in violation of section 36-2212.

§ 36-2224 Interfacility transportation of patients; requirements

An ambulance service that transports a patient from a hospital within its certificated area to a hospital outside the certificated area is only required to transport that patient under medical direction to the nearest most appropriate facility as defined by federal medicare guidelines for ambulance services. This section shall not apply to any patient transport initiated or undertaken pursuant to the provisions of the federal emergency medical treatment and active labor act.

§ 36-2225 Statewide emergency medical services and trauma system; definitions

A. The department shall develop and administer a statewide emergency medical services and trauma system to implement the Arizona emergency medical services and trauma system plan. The department shall adopt rules to establish standards for the following:

1. Injury prevention activities to decrease the incidence of trauma and decrease the societal cost of preventable mortality and morbidity.

2. Public access to prehospital emergency medical services.

3. A statewide network of trauma centers that provide trauma care and to which trauma patients can be transported.

4. A trauma center designation and dedesignation process for health care institutions that provide trauma care. The department may adopt rules that:

(a) Allow for designation based on:

(i) A health care institution’s verification as a trauma facility by a national verification organization.

(ii) A determination by a national verification organization that a health care institution meets the state standards established by rule for designation as a trauma center.

(iii) A determination by the department that a health care institution meets the state standards established by rule for designation as a trauma center.

(b) Require that trauma centers submit data to the trauma registry.

5. Trauma system evaluation and quality review through the collection and analysis of data.

6. Protection of confidential patient care and trauma registry information.

B. For the purposes of this section:

1. "National verification organization" means the American college of surgeons committee on trauma or other nationally recognized organization that verifies the ability of health care institutions to provide trauma services at various levels.

2. "Trauma center" means a health care institution that is designated pursuant to rules adopted by the department to provide a specific level of trauma care.

§ 36-2226 Emergency administration of epinephrine by Good Samaritans; exemption from civil liability

A. Notwithstanding any other law, a person may administer epinephrine to another person who is suffering from a severe allergic reaction if the person acts in good faith and without compensation for the act of administering the epinephrine and a health professional who is qualified to administer epinephrine is not immediately available.

B. A person who administers epinephrine pursuant to subsection A is not subject to civil liability for any injury that results from that act unless the person acts with gross negligence, wilful misconduct or intentional wrongdoing.

§ 36-2226.01 Emergency administration of epinephrine; authorized entities; prescriptions; training; immunity; definitions

A. A practitioner may prescribe epinephrine delivery systems in the name of an authorized entity for use in accordance with this section, and pharmacists and practitioners may dispense epinephrine delivery systems pursuant to a prescription issued in the name of an authorized entity. A prescription issued pursuant to this section is valid for two years.

B. An authorized entity may acquire and stock a supply of epinephrine delivery systems pursuant to a prescription issued in accordance with this section. The epinephrine delivery systems shall be stored in a location that is readily accessible in an emergency and in accordance with the epinephrine delivery system's instructions for use and any additional requirements that may be established by the department. An authorized entity shall designate employees or agents who have completed the training required by subsection D of this section to be responsible for the storage, maintenance, control and general oversight of the epinephrine delivery systems acquired by the authorized entity.

C. An employee or agent of an authorized entity or another individual who has completed the training required by subsection D of this section may do either of the following:

1. Provide an epinephrine delivery system to any individual who the employee, agent or other individual believes in good faith is experiencing anaphylaxis, or to the parent, guardian or caregiver of the individual, for immediate administration, regardless of whether the individual has a prescription for an epinephrine delivery system or has previously been diagnosed with an allergy.

2. Administer an epinephrine delivery system to any individual who the employee, agent or other individual believes in good faith is experiencing anaphylaxis, regardless of whether the individual has a prescription for an epinephrine delivery system or has previously been diagnosed with an allergy.

D. An employee, agent or other individual described in subsection B or C of this section shall complete initial anaphylaxis training and, at least every two years thereafter, shall complete subsequent anaphylaxis training. The training shall be conducted by a nationally recognized organization that is experienced in training laypersons in emergency health treatment or an entity or individual approved by the department. The department may approve specific entities or individuals or may approve classes of entities or individuals to conduct this training. Training may be conducted online or in person and, at a minimum, shall cover:

1. How to recognize signs and symptoms of severe allergic reactions, including anaphylaxis.

2. Standards and procedures for the storage and administration of an epinephrine delivery system.

3. Emergency follow-up procedures.

E. The entity, organization or individual who conducts the training required by subsection D of this section shall issue a certificate, on a form developed or approved by the department, to each person who successfully completes the anaphylaxis training.

F. The administration of an epinephrine delivery system pursuant to this section is not the practice of medicine or any other profession that otherwise requires licensure.

G. A practitioner prescribing epinephrine delivery systems in the name of an authorized entity, an authorized entity, an employee or agent of an authorized entity and a person or entity that provides training pursuant to subsection D of this section are immune from civil liability with respect to all decisions made and actions or omissions taken that are based on good faith implementation of the requirements of this section, except in cases of gross negligence, wilful misconduct or intentional wrongdoing.

H. The immunity from civil liability provided in subsection G of this section does not affect a manufacturer's product liability regarding the design, manufacturing or instructions for use of an epinephrine delivery system.

I. An authorized entity that possesses and makes available epinephrine delivery systems shall submit to the department, on a form developed by the department, a report of each incident that occurs on the authorized entity's premises and that involves the administration of an epinephrine delivery system pursuant to subsection C of this section.

J. For the purposes of this section:

1. "Administer" means the direct application of an epinephrine delivery system to the body of an individual.

2. "Authorized entity" means any entity or organization in connection with or at which allergens capable of causing anaphylaxis may be present, including recreation camps, colleges and universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment and sports arenas.

3. "Practitioner" has the same meaning prescribed in section 32-1901.

§ 36-2226.02 Administration of epinephrine; immunity; definitions

A. A first responder who is trained in administering epinephrine injections may administer an epinephrine injection or epinephrine delivery system to a person who the first responder believes in good faith is experiencing anaphylaxis pursuant to a standing order issued by any of the following:

1. A physician licensed pursuant to title 32, chapter 13 or 17.

2. A naturopathic physician licensed pursuant to title 32, chapter 14.

3. A physician assistant licensed pursuant to title 32, chapter 25.

4. A nurse practitioner licensed pursuant to title 32, chapter 15 who is authorized by law to prescribe drugs.

B. The following individuals are immune from professional liability and criminal prosecution for any decision made, act or omission or injury that results from that act if the person acts with reasonable care and in good faith, except in cases of wanton or wilful neglect:

1. Physicians who are licensed pursuant to title 32, chapter 13 or 17 and who issue a standing order.

2. Naturopathic physicians who are licensed pursuant to title 32, chapter 14 and who issue a standing order.

3. Physician assistants who are licensed pursuant to title 32, chapter 25 and who issue a standing order.

4. Nurse practitioners who are licensed pursuant to title 32, chapter 15 and authorized by law to prescribe drugs and who issue a standing order.

5. First responders who administer epinephrine injections or epinephrine delivery systems pursuant to this section.

C. This section does not create a duty to act or standard of care for a first responder to administer an epinephrine injection or epinephrine delivery system.

D. For the purposes of this section:

1. "Ambulance attendant" means either of the following:

(a) An emergency medical technician, an advanced emergency medical technician, an emergency medical technician I-99 or a paramedic whose primary responsibility is the care of patients in an ambulance and who meets the standards and criteria adopted pursuant to section 36-2204.

(b) An emergency medical responder who is employed by an ambulance service operating under section 36-2202 and whose primary responsibility is the driving of an ambulance.

2. "First responder" means a law enforcement officer, a firefighter or an ambulance attendant.

§ 36-2227 Informal interviews; request for information; nondissemination; violation; classification

A. At least thirty days before the date of an informal interview held pursuant to this article or article 2 of this chapter, the department shall notify a person who is under investigation, or that person's designee, that the person or designee may submit a written request with the department at least ten business days before that interview that the department provide the following before the interview:

1. Except as provided pursuant to section 41-1010, the name of the person making the complaint.

2. Except as prohibited by state and federal privacy or confidentiality laws, any documents received by the department, in any format or medium, that are relevant to the investigation, including:

(a) Records obtained by the department from first responders, emergency medical care technicians or other health care providers.

(b) Witness statements or summaries.

(c) Patient records.

B. The department shall redact any information provided pursuant to subsection A of this section necessary to protect the personal identifying information of a patient.

C. A person who receives information pursuant to subsection A of this section may not copy, share or otherwise disseminate that information except as needed to participate in the informal interview or in an administrative proceeding or appeal arising from the investigation. A person who violates this subsection is guilty of a class 3 misdemeanor.

§ 36-2228 Administration of opioid antagonists; training; immunity; designation by director; definition

A. Pursuant to a standing order issued by a physician licensed pursuant to title 32, chapter 13 or 17 or a nurse practitioner licensed pursuant to title 32, chapter 15 and authorized by law to prescribe drugs, an emergency medical care technician, peace officer or ancillary law enforcement employee who is trained in the administration of naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration and designated by the director may administer naloxone hydrochloride or another opioid antagonist to a person who the emergency medical care technician, peace officer or ancillary law enforcement employee believes is suffering from an opioid-related drug overdose.

B. The department, in coordination with the Arizona peace officer standards and training board, shall develop a training module for emergency medical care technicians, peace officers and ancillary law enforcement employees that provides training regarding the identification of a person suffering from an opioid-related drug overdose and the use of naloxone hydrochloride or other opioid antagonists.

C. Physicians who are licensed pursuant to title 32, chapter 13 or 17 and who issue a standing order, nurse practitioners who are licensed pursuant to title 32, chapter 15 and authorized by law to prescribe drugs and who issue a standing order and emergency medical care technicians, peace officers and ancillary law enforcement employees who administer naloxone hydrochloride or any other opioid antagonist pursuant to this section are immune from professional liability and criminal prosecution for any decision made, act or omission or injury that results from that act if those persons act with reasonable care and in good faith, except in cases of wanton or wilful neglect. This section does not create a duty to act or standard of care for peace officers or ancillary law enforcement employees to administer an opioid antagonist.

D. The director shall designate opioid antagonists that may be used pursuant to this section based on an evaluation of the opioid antagonist's safety and efficacy.

E. For the purposes of this section, "ancillary law enforcement employee" means a detention officer, a probation or surveillance officer, a police aide or assistant, a crime scene specialist, a crime laboratory employee or any other type of law enforcement employee or employee of the state department of corrections who is authorized by the person's employing agency to administer naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration and designated by the director pursuant to this section.

§ 36-2229 Emergency administration of inhalers; authorized entities; training; immunity; definitions

A. A physician who is licensed pursuant to title 32, chapter 13 or 17 or a nurse practitioner who is licensed pursuant to title 32, chapter 15 may prescribe inhalers and spacers or holding chambers in the name of an authorized entity for use in accordance with this section, and pharmacists may dispense inhalers and spacers or holding chambers pursuant to a prescription issued in the name of an authorized entity. A prescription issued pursuant to this section is valid for two years.

B. An authorized entity may acquire and stock a supply of inhalers and spacers or holding chambers pursuant to a prescription issued in accordance with this section. The inhalers shall be stored in a location that is readily accessible in an emergency and in accordance with the inhaler's instructions for use. An authorized entity shall designate employees or agents who have completed the training required by subsection D of this section to be responsible for the storage, maintenance, control and general oversight of the inhalers and spacers or holding chambers acquired by the authorized entity.

C. If an employee or agent of an authorized entity or another individual who has completed the training required by subsection D of this section believes in good faith that an individual is experiencing respiratory distress, the employee, agent or other individual may provide and administer an inhaler to that individual or may provide an inhaler to the parent, guardian or caregiver of that individual, for immediate administration, regardless of whether the individual who is believed to be experiencing respiratory distress has a prescription for an inhaler and spacer or holding chamber or has previously been diagnosed with a condition requiring an inhaler.

D. An employee, agent or other individual described in subsection B or C of this section shall complete initial training for the use of inhalers and, at least every two years thereafter, shall complete subsequent training. The training shall be conducted by a nationally recognized organization that is experienced in training laypersons in emergency health treatment. Training may be conducted online or in person and, at a minimum, shall cover:

1. How to recognize signs and symptoms of respiratory distress.

2. Standards and procedures for the storage and administration of an inhaler.

3. Emergency follow-up procedures after the administration of an inhaler.

E. The organization that conducts the training required by subsection D of this section shall issue a certificate to each person who successfully completes the training.

F. The administration of an inhaler pursuant to this section is not the practice of medicine or any other profession that otherwise requires licensure.

G. Physicians licensed pursuant to title 32, chapter 13 or 17 and nurse practitioners licensed pursuant to title 32, chapter 15 who prescribe an inhaler and spacer or holding chamber in the name of an authorized entity, authorized entities and employees and agents of authorized entities that provide or administer inhalers and organizations that provide training pursuant to subsection D of this section are immune from civil liability with respect to all decisions made and actions or omissions taken that are based on good faith implementation of the requirements of this section, except in cases of gross negligence, wilful misconduct or intentional wrongdoing.

H. The immunity from civil liability provided in subsection G of this section does not affect a manufacturer's product liability regarding the design, manufacturing or instructions for use of an inhaler and spacer or holding chamber.

I. An authorized entity may accept monetary donations to purchase inhalers and spacers or holding chambers and may accept donations of inhalers and spacers or holding chambers directly from the product manufacturer.

J. For the purposes of this section:

1. "Authorized entity" means any entity or organization in connection with or at which allergens capable of causing respiratory distress symptoms may be present, including recreation camps, day care facilities, private schools, preschools, youth sports leagues, amusement parks, restaurants and sports arenas.

2. "Bronchodilator" means albuterol or another short-acting bronchodilator that is approved by the United States food and drug administration to treat respiratory distress.

3. "Inhaler" means a device that delivers a bronchodilator to alleviate symptoms of respiratory distress, that is manufactured in the form of a metered-dose inhaler or dry-powder inhaler and that includes a spacer or holding chamber that attaches to the inhaler to improve the delivery of the bronchodilator.

4. "Respiratory distress" includes the perceived or actual presence of coughing, wheezing or shortness of breath.

§ 36-2230 Ambulance services; police dogs; authorization; policies and procedures; immunity; billing

A. Each ambulance service shall require its emergency medical care technicians and ambulance attendants as defined in section 36-2201, paragraph 6, subdivision (b) to transport a police dog that is injured in the line of duty, along with a police officer who is trained in dog handling, if available, or other police personnel who are medically trained, by a ground ambulance or another emergency medical services vehicle to a veterinary clinic or veterinary hospital equipped to provide emergency treatment to dogs, if all of the following apply:

1. A person is not requiring emergency medical treatment or transport by the ground ambulance or other emergency medical services vehicle at that time.

2. The transport is not expected to take more than thirty minutes from the point of pickup to the veterinary clinic or veterinary hospital.

3. The ambulance service has at least one additional ground ambulance in service and available to respond to emergency calls.

4. The transport by a police officer in the police officer's emergency vehicle is not deemed to be more safe and more expeditious than transport by a ground ambulance.

B. An ambulance service may authorize its emergency medical care technicians, if trained, to provide emergency treatment to a police dog that is injured in the line of duty.

C. Each ambulance service may develop written policies and procedures for all of the following:

1. Appropriate training of the ambulance service's emergency medical care technician personnel to provide police dogs with basic level first aid, cardiopulmonary resuscitation and lifesaving interventions, including administering naloxone, that are developed in consultation with a veterinarian who is licensed in this state.

2. Safe handling procedures for injured police dogs, including the use of a muzzle, and response coordination with a law enforcement agency member who is trained in handling police dogs, that are developed in consultation with a veterinarian who is licensed in this state and a law enforcement police dog handler or trainer.

3. Identification of local veterinary facilities that will provide emergency treatment of injured police dogs on short notice.

4. Proper and complete decontamination of stretchers, the patient compartment and all contaminated medical equipment after a police dog has been transported by a ground ambulance or other emergency medical services vehicle.

5. Sterilization of the interior of a ground ambulance or other emergency medical services vehicle, including complete sanitizing of all allergens and disinfection to a standard safe for human transport before the ground ambulance or other vehicle is returned to human service.

D. Emergency medical care technicians and any other personnel certified under this chapter who in the performance of their duties and in good faith render emergency first aid, cardiopulmonary resuscitation, transportation or other emergency medical services to an injured police dog pursuant to this section are not personally liable as a result of rendering such aid or services.

E. An ambulance service that provides transport for an injured police dog pursuant to this section may bill the governmental entity that owns the police dog for the cost of the transport.

F. This section does not preclude a police officer who is trained in dog handling of an injured police dog from choosing to transport the injured police dog in the police officer's own emergency vehicle.

Article 2 Regulation of Ambulances and Ambulance Services

§ 36-2232 Director; powers and duties; regulation of ambulance services; inspections; response time compliance; mileage rate calculation factors

A. The director shall adopt rules to regulate the operation of ambulances and ambulance services in this state. Each rule shall identify all sections and subsections of this chapter under which the rule was formulated. The rules shall provide for the department to do the following:

1. Consistent with the requirements of subsection H of this section, determine, fix, alter and regulate just, reasonable and sufficient rates and charges for the provision of ambulances, including rates and charges for advanced life support service, basic life support service, patient loaded mileage, standby waiting, subscription service contracts and other contracts for services related to the provision of ambulances. The director shall inform all ambulance services of the procedures and methodology used to determine ambulance rates or charges.

2. Ensure evidence-based quality patient care is the priority for decision-making.

3. Regulate operating and response times of ambulances to meet the needs of the public and to ensure adequate service. The rules adopted by the director for certificated ambulance service response times shall include uniform standards for urban, suburban, rural and wilderness geographic areas within the certificate of necessity based on, at a minimum, population density and geographic and medical considerations. The calculation of response times shall begin when the public safety answering point contacts an ambulance service for dispatch and conclude when the ambulance service arrives at the dispatched location. On-scene arrival times for response time measurement shall be documented by the ambulance service using dispatch or global positioning system data, or a combination of both, and kept on file. Response time data that is compliant with the health insurance portability and accountability act of 1996 shall be filed annually with the department. When dispatch or global positioning system connectivity is not available, the ambulance service shall manually document on-scene arrival times for response time measurement. The response time data shall be filed in a department-approved format, and the department shall make the response time data publicly available.

4. Review response times established pursuant to paragraph 3 of this subsection with the ambulance service and update the response times based on, at a minimum, population density and geographic and medical considerations, and the financial impact on rates and charges, every six years. One additional review each six-year period may be requested by a city, town, fire district or fire authority whose jurisdictional boundaries in whole or in part are within the service area of a certificate of necessity or an existing certificate of necessity holder within the service area of the certificate of necessity.

5. Determine, fix, alter and regulate bases of operation. The director may issue a certificate of necessity to more than one ambulance service within any base of operation. For the purposes of this paragraph, "base of operation" means a service area granted under a certificate of necessity.

6. Issue, amend, transfer, suspend or revoke certificates of necessity under terms consistent with this article.

7. Prescribe a uniform system of accounts to be used by ambulance services that conforms to standard accounting forms and principles for the ambulance industry and generally accepted accounting principles.

8. Require the filing of an annual financial report and other data. These rules shall require an ambulance service to file the report with the department not later than one hundred eighty days after the completion of its annual accounting period.

9. Regulate ambulance services in all matters affecting services to the public to the end that this article may be fully carried out.

10. Prescribe bonding requirements, if any, for ambulance services granted authority to provide any type of subscription service.

11. Offer technical assistance to ambulance services to ensure compliance with the rules.

12. Offer technical assistance to ambulance services in order to obtain or to amend a certificate of necessity.

13. Inspect, at a maximum of twelve-month intervals, each ambulance registered pursuant to section 36-2212 to ensure that the vehicle is operational and safe and that all required medical equipment is operational. At the request of the provider, the inspection may be performed by a facility approved by the director. If a provider requests that the inspection be performed by a facility approved by the director, the provider shall pay the cost of the inspection.

B. The director may require any ambulance service offering subscription service contracts to obtain a bond in an amount determined by the director that is based on the number of subscription service contract holders and to file the bond with the director to protect all subscription service contract holders in this state who are covered under that subscription contract.

C. An ambulance service shall:

1. Maintain, establish, add, move or delete suboperation stations within its base of operation to ensure that the ambulance service meets the established response times or those approved by the director in a political subdivision contract.

2. Determine the operating hours of its suboperation stations to provide for coverage of its base of operation.

3. Provide the department with a list of suboperation station locations.

4. Notify the department not later than thirty days after the ambulance service makes a change in the number or location of its suboperation stations.

5. Beginning January 1, 2024, install and maintain an electronic global positioning system monitoring device in each vehicle that is used for transport to record on-scene arrival times for response time measurement. The department shall provide a waiver on a department-approved form to an ambulance service that can reasonably demonstrate it is unable to meet the requirements of this paragraph.

D. At any time, the director or the director's agents may:

1. Inquire into the operation of an ambulance service, including a person operating an ambulance that has not been issued a certificate of registration or a person who does not have or is operating outside of a certificate of necessity.

2. Conduct on-site inspections of facilities, communications equipment, vehicles, procedures, materials and equipment.

3. Review the qualifications of ambulance attendants.

E. If all ambulance services that have been granted authority to operate within the same service area or that have overlapping certificates of necessity apply for uniform rates and charges, the director may establish uniform rates and charges for the service area.

F. In consultation with the medical director of the emergency medical services and trauma system, the emergency medical services council and the medical direction commission, the director of the department of health services shall establish protocols for ambulance services to refer and advise a patient or transport a patient by the most appropriate means to the most appropriate provider of medical services based on the patient's condition. The protocols shall include triage and treatment protocols that allow all classifications of emergency medical care technicians responding to a person who has accessed 911, or a similar public dispatch number, for a condition that does not pose an immediate threat to life or limb to refer and advise a patient or transport a patient to the most appropriate health care institution as defined in section 36-401 based on the patient's condition, taking into consideration factors including patient choice, the patient's health care provider, specialized health care facilities and local protocols.

G. The director, when reviewing an ambulance service's response time compliance with its certificate of necessity, shall consider in addition to other factors the effect of hospital diversion, delayed emergency department admission and the number of ambulances engaged in response or transport in the affected area.

H. The department shall incorporate all of the following factors when calculating the proposed mileage rate:

1. The cost of licensure and registration of each ground ambulance vehicle.

2. The cost of fuel.

3. The cost of ground ambulance vehicle maintenance.

4. The cost of ground ambulance vehicle repair.

5. The cost of tires.

6. The cost of ground ambulance vehicle insurance.

7. The cost of mechanic wages, benefits and payroll taxes.

8. The cost of loan interest related to the ground ambulance vehicles.

9. The cost of the weighted allocation of overhead.

10. The cost of ground ambulance vehicle depreciation.

11. The cost of reserves for replacement of ground ambulance vehicles and equipment.

§ 36-2233 Certificate of necessity to operate an ambulance service; notification of interested parties; exceptions; service areas

A. Any person wishing to operate an ambulance service in this state shall apply to the department on a form prescribed by the director for a certificate of necessity.

B. Within one hundred eighty days after receiving an application for a certificate of necessity as prescribed in this section, the director shall make a determination based on whether necessity for the ambulance service is found to exist and the applicant meets the requirements of subsection F of this section. If the director requests additional information from the applicant after initial review, the applicant shall have thirty business days to respond. On request, the director may give the applicant one additional period of thirty business days to respond. If the applicant fails to respond to the director's request for additional information, the department shall deem the initial or amended application withdrawn. An application deemed withdrawn is not an appealable agency action pursuant to title 41, chapter 6, article 10. The applicant may appeal a denial only pursuant to section 36-2234. The one hundred eighty-day period for the director to make the determination of necessity does not include the time the applicant uses to respond to requests for additional information.

C. On receipt of an initial or amended application for a certificate of necessity, the department shall post a notice of the application on its website. Within thirty days after the department posts a notice pursuant to this subsection, any interested party may provide information to the director on a form in a department-approved format for consideration. If an interested party fails to respond to the notice within sixty days in a department-approved format, the information may not be considered during the review of the application.

D. For the purposes of this section, a city, town, fire district, fire authority or tribal government whose jurisdictional boundaries in whole or in part are within the service area of a certificate of necessity, an existing certificate of necessity holder within the service area of the certificate of necessity or a hospital that is licensed pursuant to chapter 4 of this title and that is located within the service area of a certificate of necessity is considered to be an interested party as a matter of law.

E. All interested parties shall be notified of any application for an initial or amended certificate of necessity within fifteen days after the application is filed, within fifteen days after the application is complete and within fifteen days after a decision by the director. The director's decision pursuant to subsection F of this section is final unless appealed pursuant to section 36-2234, subsection A.

F. The director shall issue a certificate of necessity if all of the following apply:

1. The director finds that public necessity requires the service or any part of the service proposed by the applicant.

2. The director finds that the applicant is fit and proper to provide the service.

3. The applicant has paid the appropriate fees pursuant to section 36-2240.

4. The applicant has filed a surety bond pursuant to section 36-2237.

G. A certificate of necessity issued pursuant to subsection F of this section shall be for all or part of the service proposed by the applicant as determined necessary by the director for public convenience and necessity.

H. This section does not require a certificate of necessity for:

1. Vehicles and persons that are exempt from a certificate of registration pursuant to section 36-2217.

2. Ambulance services operating under temporary authority pursuant to section 36-2242.

I. The director may grant a service area by one or any combination of the following descriptions:

1. Metes and bounds.

2. A city, town or political subdivision not limited to a specific date. The merger or consolidation of two or more fire districts pursuant to section 48-820 or 48-822 does not expand the service area boundaries of an existing certificate of necessity.

3. A city, town or political subdivision as of a specific date that does not include annexation.

§ 36-2234 Hearings; waiver of hearing; appeals; emergency action; suspension; judicial review; definition

A. The applicant or any certificate of necessity holder whose ambulance service area in whole or in part is within the affected service area of the initial or amended certificate of necessity may appeal pursuant to title 41, chapter 6, article 10 the director's determination within thirty days after the decision. If an appeal is made, the director shall require a public hearing be held within one hundred twenty days after the hearing notice is issued on the director's determination on the initial or amended certificate of necessity.

B. For the purposes of any hearing held pursuant to this section, a city, town, fire district, fire authority or tribal government whose jurisdictional boundaries in whole or in part are within the service area of a certificate of necessity, an existing certificate of necessity holder within the service area of the certificate of necessity or a hospital that is licensed pursuant to chapter 4 of this title and that is located within the service area of a certificate of necessity is considered to be an interested party as a matter of law.

C. The director shall require a public hearing on any proposed action relating to an adjustment of general public rates, charges or certificate of necessity transfers unless subsection E, G or O of this section applies.

D. An appeal pursuant to subsection A of this section or a public hearing held pursuant to subsection C of this section shall meet the following requirements:

1. The hearing shall be held pursuant to title 41, chapter 6, article 10, except as specifically provided in this section.

2. The director shall mail notice of the hearing to every ambulance service in the affected region and every interested party as specified in subsection B of this section not later than fifteen days before the hearing.

3. The director may mail notice to other persons who the director determines are interested in the hearing.

4. In a hearing or rehearing conducted pursuant to this article, an ambulance service may be represented by a corporate officer, an employee or a designee who has been specifically authorized by the ambulance service to represent it.

5. A certificate of necessity appeal hearing may not last more than five consecutive business days unless the administrative law judge determines, in writing, on the final day of the hearing that there is an extraordinary need for additional hearing days. The administrative law judge in that case may add up to five additional consecutive business days for the hearing. The additional hearing days shall be calendared within thirty days after the end of the initial hearing.

6. The administrative law judge of the office of administrative hearings shall issue a written decision within twenty days after the hearing is concluded. The written decision shall contain a concise explanation of the reasons supporting the decision, including the findings of fact and conclusions of law. The administrative law judge shall serve a copy of the decision on the department and all parties to the action. On request of the department, the office of administrative hearings shall also transmit to the department the record of the hearing as described in section 12-904. A copy of the administrative law judge's decision is deemed sent on personal delivery of the decision or five days after the decision is mailed to the director.

7. Within thirty days after the date the office of administrative hearings sends a copy of the administrative law judge's decision to the department, the director shall review the decision and accept, reject or modify the decision. If the director rejects or modifies the decision, the director must file with the office of administrative hearings and serve on all parties a copy of the administrative law judge's decision with the director's rejection or modification and a written justification setting forth the reasons for the rejection or modification of each finding of fact or conclusion of law. If there is a rejection or modification of a conclusion of law, the written justification shall be sent to the president of the senate and the speaker of the house of representatives.

8. If the director does not accept, reject or modify the administrative law judge's decision within thirty days after the date the office of administrative hearings sends a copy of the administrative law judge's decision to the director, as evidenced by receipt of such action by the office of administrative hearings on or before the thirtieth day, the office of administrative hearings shall certify the administrative law judge's decision as the final administrative decision.

9. The decision entered as specifically provided by this subsection is the final administrative decision.

E. The director may waive the hearing required under subsection C of this section if notification, including a general description of the proposed action of the department and the time and manner for any interested person to request a hearing, is given and all of the following apply:

1. Notification of the proposed action has been sent to every ambulance service in the affected region not later than fifteen days before the action.

2. The director has notified other persons who the director determines are interested in the proposed action not later than fifteen days before the action.

3. The director has published notice of the proposed action in a newspaper of general circulation in the affected region at least once each week for two consecutive weeks before the action is taken.

4. The director has received no requests within the fifteen-day notification period for a hearing to be held on the proposed action.

F. If the director receives a request pursuant to subsection E, paragraph 4 of this section, the director shall hold a hearing in compliance with subsection D of this section.

G. The director shall not hold a hearing if a person requests a hearing regarding a rate increase that does not exceed the amount computed as follows:

1. Determine the percentage growth in the transportation consumer price index of the United States department of labor, bureau of labor statistics, from the end of the second preceding calendar year to the calendar year immediately preceding the calendar year for which the rate increase is requested.

2. Determine the percentage growth in the medical care consumer price index of the United States department of labor, bureau of labor statistics, from the end of the second preceding calendar year to the calendar year immediately preceding the calendar year for which the rate increase is requested.

3. Add the amount determined in paragraph 1 of this subsection to the amount determined in paragraph 2 of this subsection and divide the sum by two.

H. A rate increase authorized pursuant to subsection G of this section is deemed to be fixed by the department at the requested level. Notwithstanding subsection E of this section, the department shall hold a hearing pursuant to section 36-2232, subsection E for any proposed uniform rate or charge that exceeds the annual rate increase prescribed in subsection G of this section. The department shall require the applicants to submit the following information signed by the designated financial officer and the chief executive of the ambulance service who has fiduciary responsibility for providing accurate financial information:

1. A financial statement for the previous twenty-four months relating to the certificated areas.

2. Any additional information the department requires to analyze the request.

I. If an ambulance service with an established general public rate applies for a contract rate or range of rates that is up to thirty percent less than its established rate, the director shall grant the rate without a public hearing or waiver, and without any right of intervention, unless within ninety days after the filing of a completed application the director determines that the contract rate or range of rates applied for does not accurately reflect the cost and economics of providing the contract services, would adversely affect the service available to the general public in the area of service as designated by its certificate of necessity or would cause any fixed rate, fare or charge to the general public to be adversely affected.

J. If the department disallows a proposed contract rate pursuant to subsection I of this section, the ambulance service has a right to a hearing for review of the proposed contract rate or range of rates.

K. The director may adopt rules for the establishment of a contract rate or range of rates that may be implemented and that exceeds the thirty percent rate variance identified pursuant to subsection I of this section.

L. Subsections I, J and K of this section are limited to contract rates or a range of rates applied for prescheduled, interfacility or convalescent transports.

M. A service contract between an ambulance service and a political subdivision of this state, including local fire districts, shall be filed with and approved by the department in accordance with the following requirements:

1. On receipt of the proposed contract, the department has fifteen days to review the contract and notify the ambulance service of any additional information the department requires, recommended corrections or any provision that does or may violate this article.

2. The ambulance service has fifteen days to provide the department with the information requested or to submit a revised or amended contract if required under paragraph 1 of this subsection.

3. The contract becomes effective fifteen days after the ambulance service complies with the department's request unless the department determines that any rate or charge or other provisions specified in the contract will cause any fixed rate or charge to the general public rate to be adversely affected or the contract would be in violation of the ambulance service's certificate of necessity.

4. If the department disallows a proposed contract pursuant to this subsection, the ambulance service has a right to a hearing for review of the proposed contract.

5. The rates and charges contained in the contract are the rates and charges fixed by the director in a decision or order for the ambulance service and conform to the ambulance service's current or subsequent general public rates and charges.

6. The area of response is within the ambulance service's certificated area.

N. In case of emergency, the director may take action providing for immediate suspension of a certificate of registration or a certificate of necessity, or both, under this section without notice or a hearing if the director determines that a potential threat to the public health and safety exists. If such an action is taken by the director, the director shall conduct a hearing within ten days after the date of the director's action unless the person against whom the action is directed waives the right to have a hearing held within ten days. If the ten-day hearing requirement is waived, the director shall set a date mutually agreeable to the interested parties. The purpose of the hearing is to review the decision of the director to take such an action. The director shall make findings of fact and may continue, suspend or modify the director's action.

O. The director shall waive the hearing required under subsection C of this section if geographic changes in suboperation stations do not alter the service area or adversely affect approved response times.

P. Except as provided in section 41-1092.08, subsection H, a final decision of the director relating to an adjustment of general public rates, charges or certificate of necessity transfers is subject to judicial review pursuant to title 12, chapter 7, article 6.

Q. The final administrative decision of the director or the administrative law judge as prescribed in subsection D of this section for an initial or amended certificate of necessity is subject to judicial review pursuant to title 12, chapter 7, article 6.

R. For the purposes of this section, "hearing day":

1. Means any portion of a business day that is used for any hearing-related activity, including testimony, argument or presentation of evidence.

2. Does not include prehearing conferences or other administrative matters that occur before the start of the hearing.

§ 36-2234.01 Certificate of necessity; amendment; interfacility transport; definitions

A. A city or town that has a licensed health care institution within its jurisdictional boundaries and that operates an ambulance service may apply to amend its certificate of necessity pursuant to this article to provide interfacility transports in lieu of transports by a peace officer as authorized by section 36-503.02.

B. In addition to any other information required by the department, a city or town must include the following information with the application to amend its certificate of necessity pursuant to subsection A of this section for the purposes of providing interfacility transports:

1. The number of interfacility transports made by peace officers in the applicant city or town from health care institutions to evaluation agencies or mental health treatment agencies in the preceding two years.

2. The projected call volume in the next year for the applicant city or town for interfacility transports to be made in lieu of peace officer transports from health care institutions to evaluation agencies or mental health treatment agencies.

C. For the purposes of this section:

1. "Evaluation agency" has the same meaning prescribed in section 36-501.

2. "Interfacility transport" means the transport of a patient from a licensed health care institution to an evaluation agency or mental health treatment agency as authorized by section 36-503.02.

3. "Mental health treatment agency" has the same meaning prescribed in section 36-501.

§ 36-2235 Terms of certificates of necessity; initial term; renewal

A. The initial certificate of necessity issued pursuant to section 36-2233 to each ambulance service shall be for a term of one year.

B. On the expiration of a certificate of necessity, if the holder of the certificate meets all requirements, applies for a renewal and pays the fees prescribed in section 36-2240, the director shall renew the certificate for a term of three years without public hearing or waiver unless cause is shown to set a hearing to consider denial or renewal for a shorter term.

C. If the director does not conclude a hearing to show cause within ninety days of the expiration date of the certificate, the certificate shall be renewed for a period of not less than one year. The term of the certificate shall be extended to three years if the director determines that cause is not established for denial or renewal for a shorter term. For the purposes of this subsection, "hearing to show cause" means a hearing ordered by the director pursuant to section 36-2245 to determine if any grounds exist to prevent an ambulance service from carrying out the provisions of subsection B of this section during the current term of the certificate.

§ 36-2236 Nature of certificates of necessity; transfer; suspension; service area

A. A certificate of necessity issued pursuant to this article is not a franchise, may be revoked by the director and does not confer a property right on its holder.

B. A certificate of necessity shall not be assigned or otherwise transferred without the written approval of the director. When any certificate is assigned or transferred, the director shall issue to the assignee or transferee a new certificate that is valid only for the unexpired term of the transferred or assigned certificate.

C. In case of emergency, the director may suspend a certificate of necessity as provided in section 36-2234.

D. If a certificate of necessity issued pursuant to this article is issued to a city, town, fire district, fire authority or other political subdivision of this state, the service area shall be all the geographic area lying within the jurisdictional boundaries of the city, town, fire district, fire authority or political subdivision, unless the certificate issued by the director specifically excludes a portion of the city, town, fire district, fire authority or political subdivision or includes an additional service area outside the jurisdictional boundaries of the city, town, fire district, fire authority or other political subdivision. If the jurisdictional boundaries of a city, town, fire district, fire authority or other political subdivision expand, the service area in the certificate of necessity expands to reflect those jurisdictional boundaries, except as prescribed in section 36-2233, subsection I, paragraph 2. This subsection does not affect the validity of any previously granted certificate for an unincorporated area lying within the boundaries of a city.

E. If the population of a service area changes by ten percent or more based on the most recent decennial census or five-year census estimate, the department must conduct a review to determine whether adjustments must be made to the response times in the service area, taking into consideration the impact on rates and charges.

§ 36-2237 Required insurance, financial responsibility or bond; revocation for failure to comply

A. The director shall not issue a certificate of necessity to an ambulance service unless the service has filed with the department a certificate of insurance or other evidence of financial responsibility in an amount the director deems necessary to adequately protect the interests of the public. The liability insurance shall bind the insurer to pay compensation for injuries to persons and for loss or damage to property resulting from the negligent operation of the ambulance service.

B. If an application for a certificate of necessity includes any type of subscription service contract and, in the director's discretion, a surety bond is necessary pursuant to section 36-2232, the director shall not issue a certificate of necessity until the applicant has filed a surety bond with the director in the form and amount determined by him on which bond the applicant is the principal obligor and this state is the obligee. The director shall approve the bond and the bond must be with a surety company authorized to transact business in this state as surety on the bond. The bond must be conditioned on the payment by the applicant to any subscribers that may be parties to any type of subscription service contract.

C. The director shall fix the total amount of the bond required and the director may increase or decrease the bond amount subject to criteria adopted by rule and regulation.

D. The director shall revoke the certificate of necessity of any ambulance service which fails to comply with this section.

§ 36-2238 Termination of service under certificate of necessity

An ambulance service which is authorized to operate under any certificate of necessity issued pursuant to this article shall not abandon or discontinue any service to any portion of the service area established under the certificate without an order from the department, unless the certificate has expired, becomes invalid or is suspended or revoked.

§ 36-2239 Ambulance services; rates; charges; adjustment; civil penalty

A. An ambulance service that applies to adjust its rates or charges shall automatically be granted a rate increase equal to the amount determined under section 36-2234, subsection G, if the ambulance service is so entitled. An automatic rate adjustment that is granted pursuant to this subsection and that is filed on or before April 1 is effective June 1 of that year. The department shall notify the applicant and each health care services organization as defined in section 20-1051 of the rate adjustment on or before May 1 of that year.

B. Notwithstanding subsection E of this section, if the department does not hold a hearing within ninety days after an ambulance service applies to the department to adjust its rates or charges, the ambulance service may adjust its rates or charges to an amount not to exceed the amount sought by the ambulance service in its application to the department. An ambulance service shall not apply to adjust its rates or charges more than once every six months.

C. At the time the department holds a hearing on the rates or charges of an ambulance service pursuant to section 36-2234, the department may adjust the rates or charges adjusted by the ambulance service pursuant to subsection B of this section, but the adjustment shall not be retroactive.

D. Except as provided in subsection H of this section, an ambulance service shall not charge, demand or collect any remuneration for any service greater or less than or different from the rate or charge determined and fixed by the department as the rate or charge for that service. An ambulance service may charge for disposable supplies, medical supplies and medication and oxygen related costs if the charges do not exceed the manufacturer's suggested retail price, are uniform throughout the ambulance service's certificated area and are filed with the director. An ambulance service shall not refund or limit in any manner or by any device any portion of the rates or charges for a service that the department has determined and fixed or ordered as the rate or charge for that service.

E. The department shall determine and render its decision regarding all rates or charges within ninety days after commencement of the applicant's hearing to adjust rates or charges. If the department does not render its decision as required by this subsection, the ambulance service may adjust its rates and charges to an amount that does not exceed the amounts sought by the ambulance service in its application to the department. If the department renders a decision to adjust the rates or charges to an amount less than that requested in the application and the ambulance service has adjusted its rates and charges higher than the adjustment approved by the department, within thirty days after the department's decision the ambulance service shall refund to the appropriate ratepayer the difference between the ambulance service's adjusted rates and charges and the rates and charges ordered by the department. The ambulance service shall provide evidence to the department that the refund has been made. If the ambulance service fails to comply with this subsection, the director may impose a civil penalty subject to the limits provided in section 36-2245.

F. An ambulance service shall charge the advanced life support base rate as prescribed by the director under any of the following circumstances:

1. A person requests an ambulance by dialing telephone number 911, or a similarly designated telephone number for emergency calls, and all of the following apply:

(a) The ambulance is staffed with at least one ambulance attendant.

(b) The ambulance is equipped with all required advanced life support medical equipment and supplies for the advanced life support attendants in the ambulance.

(c) The patient receives advanced life support services or is transported by the advanced life support unit.

2. Advanced life support is requested by a medical authority or by the patient.

3. The ambulance attendants administer one or more specialized treatment activities or procedures as prescribed by the department by rule.

G. An ambulance service shall charge the basic life support base rate as prescribed by the director under any of the following circumstances:

1. A person requests an ambulance by dialing telephone number 911, or a similarly designated telephone number for emergency calls, and all of the following apply:

(a) The ambulance is staffed with two ambulance attendants certified by this state.

(b) The ambulance is equipped with all required basic life support medical equipment and supplies for the basic life support medical attendants in the ambulance.

(c) The patient receives basic life support services or is transported by the basic life support unit.

2. Basic life support transportation or service is requested by a medical authority or by the patient, unless any provision of subsection F of this section applies, in which case the advanced life support rate applies.

3. For an interfacility transport when the ambulance is staffed with at least one ambulance attendant as defined in section 36-2201, paragraph 6, subdivision (a), (c), (d) or (e).

H. For each contract year, the Arizona health care cost containment system administration and its contractors and subcontractors shall provide remuneration for ambulance services for persons who are enrolled in or covered by the Arizona health care cost containment system in an amount equal to 68.59 percent of the amounts as prescribed by the department as of July 1 of each year for services specified in subsections F and G of this section and 68.59 percent of the mileage charges as determined by the department as of July 1 of each year pursuant to section 36-2232. The Arizona health care cost containment system administration shall annually adjust the Arizona health care cost containment system fee schedule according to the department's approved ambulance service rate in effect as of July 1 of each year. The rate adjustments made pursuant to this subsection are effective beginning October 1 of each year.

I. In establishing rates and charges, the director shall consider the following factors:

1. The transportation needs assessment of the medical response system in a political subdivision.

2. The medical care consumer price index of the United States department of labor, bureau of labor statistics.

3. Whether a review is made by a local emergency medical services coordinating system in regions where that system is designated as to the appropriateness of the proposed service level.

4. The rate of return on gross revenue.

5. Response times pursuant to section 36-2232, subsection A, paragraphs 3 and 4.

J. Notwithstanding section 36-2234, an ambulance service may charge an amount for medical assessment, equipment or treatment that exceeds the requirements of section 36-2205 if requested or required by a medical provider or patient.

K. Notwithstanding subsections D, F and G of this section, an ambulance service may provide gratuitous services if an ambulance is dispatched and the patient subsequently declines to be treated or transported.

§ 36-2240 Fees

Fees not to exceed the following amounts shall be paid by the owner of an ambulance service to the department for deposit in the state general fund to be available for legislative appropriation in order to carry out the provisions of this chapter:

1. One hundred dollars upon filing an application for a certificate of necessity.

2. Fifty dollars upon filing an application to amend, transfer or renew a certificate of necessity.

3. For the issuance of an initial certificate of necessity, two hundred dollars for each ambulance proposed to be operated by the ambulance service to which the certificate is granted.

4. An annual regulatory fee of two hundred dollars for each ambulance issued a certificate of registration pursuant to section 36-2212, to be collected at the same time as the certificate of registration fee imposed by section 36-2212.

§ 36-2241 Required records; inspection by the department

A. Pursuant to rules adopted by the director, an owner of an ambulance service shall maintain and keep within this state reasonable records, books and other data the director requires to enforce the provisions of this article. These records, books and other data shall not be destroyed for a period of three years after they are recorded. The records, books and other data shall be open to inspection by the department during reasonable office hours if the department is conducting an investigation into the operation of an ambulance service pursuant to section 36-2245.

B. If the director is holding a public rate increase hearing pursuant to section 36-2234, the department may inspect the records, books and other data to verify the truth and accuracy of these documents. The department shall conduct the inspection of these documents for a rate increase hearing only during reasonable office hours and only after giving the service at least one working day's notice.

C. If an audit is required, the department shall accept a certified audit that is performed by an independent auditor at the provider's expense in place of a department audit if the audit:

1. Is conducted in accordance with generally accepted auditing standards.

2. Includes findings regarding the ambulance service's compliance with the schedule of rates and charges approved by the director.

3. Is completed and forwarded to the department in a timely manner.

§ 36-2242 Temporary authority to operate in urgent circumstances; application; application to provide permanent service

A. If the director determines that there is an immediate and urgent need for service to one or more points or within an area lacking adequate ambulance service, the director may, at the director's discretion and without a hearing or other proceeding, grant an ambulance service, fire department, fire district or fire authority temporary authority to provide the needed service. The temporary authority is valid for the period specified by the director, not to exceed ninety days, and may be extended for one additional ninety-day period.

B. An applicant for temporary authority pursuant to this section shall submit to the director a verified written statement setting forth the circumstances of the immediate and urgent need for service. The applicant must demonstrate that the service provided under the temporary authority will be in appropriately equipped vehicles designed for patient transport and staffed with appropriately certified personnel for patient care. The director shall prescribe a temporary schedule of rates and charges that do not exceed rates and charges established by the director for similar services.

C. The department may make an independent investigation to determine whether there is an immediate and urgent need for the authority requested.

D. During the period of temporary authority, a person granted temporary authority shall file an application for a certificate of necessity to conduct the service if the person intends to continue the service after the temporary authority expires. A grant of temporary authority pursuant to this section does not create a presumption that permanent authority for the service should be granted.

§ 36-2243 Interagency service agreement

The department may enter into an interagency service agreement with the department of transportation pursuant to section 35-148 to implement the provisions of this chapter.

§ 36-2244 Legal action for enforcement

The department may institute and maintain in the name of this state an action to enforce this article or any rule adopted pursuant to this article by mandatory injunction or other appropriate remedy.

§ 36-2245 Investigations; dispute resolution; informal interviews; hearings; stipulations; judicial review; civil penalty

A. The department may conduct an investigation into the operation of ambulances and ambulance services.

B. Proceedings under this section may be initiated by the department.

C. If the department receives a written and signed statement of dissatisfaction or dispute of charges or any matter relating to the regulation of ambulance services, the customer is deemed to have filed an informal complaint against the ambulance service. Within fifteen days of receipt of the complaint, a designated representative of the department shall inform the ambulance service that an informal complaint has been filed, state the nature of the allegations made, specify the purported rule violation and identify specific records relating to the purported rule violation that the ambulance service shall provide to the department. The ambulance service shall comply with the request for records in a timely manner.

D. Within forty-five days of receipt of the records, the department shall determine if the complaint is nonsubstantive or substantive.

E. If the department determines that a complaint filed pursuant to this section is nonsubstantive, it shall render a written decision to all parties within five days of that determination. The complainant may make a formal complaint to the department if the complainant disagrees with the department's decision. If the nonsubstantive complaint involves rates and charges, a designated representative of the department shall attempt to resolve the dispute by correspondence or telephone with the ambulance service and the customer.

F. If the department determines that a complaint filed pursuant to this section is substantive, the complaint becomes a formal complaint. The department shall inform the ambulance service that the initial investigation was substantive in nature and may warrant action pursuant to this article. The department shall inform the ambulance service of the specific rule violation and shall allow the ambulance service thirty days to answer the complaint in writing.

G. The department may issue a written request for an informal interview with the ambulance service if the department believes that the evidence indicates that grounds for action exist. The request shall state the reasons for the interview and shall schedule an interview at least ten days from the date that the department sends the request for an interview.

H. If the department determines that evidence warrants action or if the ambulance service refuses to attend the informal interview, the director shall institute formal proceedings and hold a hearing pursuant to title 41, chapter 6, article 10.

I. If the department believes that a lesser disciplinary action is appropriate, the department may enter into a stipulated agreement with the ambulance service. This stipulation may include a civil penalty as provided under subsection J of this section.

J. In addition to other disciplinary action provided under this section, the director may impose a civil penalty of not more than three hundred fifty dollars for each violation of this chapter that constitutes grounds to suspend or revoke a certificate of necessity. This penalty shall not exceed fifteen thousand dollars. Each day that a violation occurs constitutes a separate offense. The director shall deposit, pursuant to sections 35-146 and 35-147, all monies collected under this subsection in the emergency medical services operating fund established under section 36-2218.

K. The director may suspend a certificate of necessity without holding a hearing if the director determines that the certificate holder has failed to pay a civil penalty imposed under this section. The director shall reinstate the certificate of necessity when the certificate holder pays the penalty in full.

L. Except as provided in section 41-1092.08, subsection H, a final decision of the department pursuant to this section is subject to judicial review pursuant to title 12, chapter 7, article 6.

M. Information, documents and records received by the department or prepared by the department in connection with an investigation that is conducted pursuant to this article and that relates to emergency medical care technicians are confidential and are not subject to public inspection or civil discovery. When the investigation has been completed and the investigation file has been closed, the results of the investigation and the decision of the department shall be available to the public.

§ 36-2246 Fire districts; rural ambulance services; request for information; format

A. The department shall implement a format to govern its requests for information from each fire district that holds a certificate of necessity to operate an ambulance service under this chapter that substantially conforms to the annual report prescribed by section 48-251.

B. The department's request for financial information from each fire district that holds a certificate of necessity to operate an ambulance service under this chapter shall substantially conform to the accounting method prescribed by section 48-251.

C. The department's request for information from each rural ambulance service that holds a certificate of necessity under this chapter shall include the minimum information the department requires under section 36-2232, subsection A, paragraphs 7 and 8.

§ 36-2247 Certificates of necessity; ambulance services; name change

At least thirty days before the date an ambulance service changes its legal name, the ambulance service shall send the department written notice of the name change. Within thirty days after the date of receiving the notice, the department shall issue an amended certificate of necessity that incorporates the name change but retains the expiration date of the current certificate of necessity.

Article 3 Automated External Defibrillators

§ 36-2261 Definitions

In this article, unless the context otherwise requires:

1. "Automated external defibrillator" means a medical device heart monitor and defibrillator that:

(a) Is approved for premarket modification by the United States food and drug administration pursuant to 21 United States Code section 360(k).

(b) Is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia and is capable of determining, without intervention by an operator, if defibrillation should be performed.

(c) Automatically charges and delivers an electrical impulse to a person's heart when it determines that defibrillation should be performed.

2. "Defibrillation" means the administration of a controlled electrical charge to the heart to restore a viable cardiac rhythm.

3. "Physician" means a physician who is licensed pursuant to title 32, chapter 13 or 17, and who provides medical oversight services pursuant to section 36-2262.

4. "Trained user" means a person who is the expected user of an automated external defibrillator and who has completed training in its use.

5. "Training" means a state approved course in cardiopulmonary resuscitation and the use of an automated external defibrillator for the lay rescuer and first responder, including the course adopted by the American heart association and in effect as of December 31, 1998.

§ 36-2262 Automated external defibrillators; use; requirements

Except as provided in section 36-2264, a person or entity that acquires an automated external defibrillator shall:

1. Enter into an agreement with a physician who shall oversee the aspects of public access to defibrillation.

2. Require each trained user who uses an automated external defibrillator on a person in cardiac arrest to

call telephone number 911 as soon as possible.

3. Submit a written report to the bureau of emergency medical services and trauma systems in the department of health services within five working days after its use.

4. Ensure that the automated external defibrillator is maintained in good working order and tested according to the manufacturer's guidelines.

§ 36-2263 Civil liability; limited immunity; Good Samaritan

A. The following persons and entities are not subject to civil liability for any personal injury that results from any act or omission that does not amount to wilful misconduct or gross negligence:

1. A physician who provides oversight.

2. A person or entity that provides training in cardiopulmonary resuscitation and use of an automated external defibrillator.

3. A person or entity that acquires an automated external defibrillator pursuant to this article.

4. The owner of the property or facility where the automated external defibrillator is located.

5. A person or entity that provides the automated external defibrillator pursuant to this article.

6. A nonprofit entity that, in the placement of an automated external defibrillator pursuant to this article, acts as an intermediary between the provider of an automated external defibrillator and the person or entity that acquired the automated external defibrillator or the owner of the property or facility where the automated external defibrillator is located.

7. A Good Samaritan. For the purposes of this paragraph, "Good Samaritan" means a person who uses an automated external defibrillator to render emergency care or assistance in good faith and without compensation at the scene of any accident, fire or other life-threatening emergency.

8. A trained user.

B. The exception from civil liability provided in subsection A does not affect a manufacturer's product liability regarding the design, manufacturing or instructions for use and maintenance of an automated external defibrillator.

§ 36-2264 Exemption from regulation

A. A person who obtains an automated external defibrillator for home use pursuant to a physician's prescription is exempt from the requirements of this article.

B. A person who is employed as a firefighter, emergency medical care technician or ambulance attendant by a fire district established pursuant to title 48, chapter 5 is exempt from the requirements of this article.

C. A person who is employed as a firefighter, emergency medical care technician or ambulance attendant by a public or private fire department or an ambulance service regulated by this chapter is exempt from the requirements of this article.

Article 4 Opioid Antagonists

§ 36-2266 Prescribing and dispensing; immunity; definition

A. A physician who is licensed pursuant to title 32, chapter 13 or 17, a nurse practitioner licensed pursuant to title 32, chapter 15 and authorized by law to prescribe drugs or any other health professional who has prescribing authority and who is acting within the health professional's scope of practice may prescribe or dispense, directly or by a standing order, naloxone hydrochloride or any other opioid antagonist that is approved by the United States food and drug administration for use according to the protocol specified by the physician, nurse practitioner or other health professional to a person who is at risk of experiencing an opioid-related overdose, to a family member of that person, to a community organization that provides services to persons who are at risk of an opioid-related overdose or to any other person who is in a position to assist a person who is at risk of experiencing an opioid-related overdose.

B. A physician, nurse practitioner or other health professional who prescribes or dispenses naloxone hydrochloride or any other opioid antagonist pursuant to subsection A of this section shall instruct the individual to whom the opioid antagonist is dispensed to summon emergency services as soon as practicable, either before or after administering the opioid antagonist.

C. Except in cases of gross negligence, wilful misconduct or intentional wrongdoing, a physician, nurse practitioner or other health professional who in good faith prescribes or dispenses an opioid antagonist pursuant to subsection A of this section is immune from professional liability and criminal prosecution for any decision made, act or omission or injury that results from that act if the physician, nurse practitioner or other health professional acts with reasonable care and in good faith.

D. For the purposes of this section, "person" includes an employee of a school district or charter school who is acting in the person's official capacity.

§ 36-2267 Administration of opioid antagonist; exemption from civil liability; definition

A. A person may administer an opioid antagonist that is prescribed or dispensed pursuant to section 32-1979 or 36-2266 in accordance with the protocol specified by the physician, nurse practitioner, pharmacist or other health professional or that is received from a county health department pursuant to section 36-192 to a person who is experiencing an opioid-related overdose.

B. A person who in good faith and without compensation administers an opioid antagonist to a person who is experiencing an opioid-related overdose is not liable for any civil or other damages as the result of any act or omission by the person rendering the care or as the result of any act or failure to act to arrange for further medical treatment or care for the person experiencing the overdose, unless the person while rendering the care acts with gross negligence, wilful misconduct or intentional wrongdoing.

C. For the purposes of this section, "person" includes an employee of a school district or charter school who is acting in the person's official capacity.

Chapter 22 Protection of Minors

Article 1 In General

§ 36-2271 Consent of parents required for surgical procedures upon minor; exception; classification

A. Except as otherwise provided by law, no person, corporation, association, organization, state-supported institution, or individual employed by any of same may procure, solicit to perform, arrange for the performance of, or perform surgical procedures upon a minor without first obtaining a written consent of a parent or legal guardian of the minor.

B. No health care institution as defined in section 36-401 may permit surgical procedures to be performed upon a minor in its facilities without first having received a written consent from a parent or legal guardian of the minor.

C. The provisions of this section shall not apply when it has been determined by a physician that an emergency exists and that it is necessary to perform such surgical procedures for the treatment of a serious disease, injury or drug abuse, or to save the life of the patient, or when such parent or legal guardian cannot be located or contacted after reasonably diligent effort.

D. A person who violates a provision of this section is guilty of a class 1 misdemeanor.

§ 36-2272 Consent of parent required for mental health screening or treatment of minors; exception; violation; classification; definition

A. Except as otherwise provided by law or a court order, no person, corporation, association, organization or state-supported institution, or any individual employed by any of these entities, may procure, solicit to perform, arrange for the performance of or perform mental health screening in a nonclinical setting or mental health treatment on a minor without first obtaining the written or oral consent of a parent or a legal custodian of the minor child. If the parental consent is given through telehealth, the health professional must verify the parent's identity at the site where the consent is given.

B. This section does not apply when an emergency exists that requires a person to perform mental health screening or provide mental health treatment to prevent serious injury to or save the life of a minor child.

C. A person who violates this section is guilty of a class 1 misdemeanor.

D. For the purposes of this section, "parent" means the parent or legal guardian of a minor child.

Article 2 Preserving the Lives of Newborn and Other Children

§ 36-2281 Infants; nutritional and medical denial or deprivation prohibited; definition

A. A person shall not deny or deprive an infant of nourishment with the intent to cause or allow the death of the infant for any reason including:

1. The infant was born with a disability.

2. The infant is not wanted by the parent, parents or guardian.

3. The infant is born alive by natural or artificial means.

B. A person shall not deprive an infant of necessary lifesaving medical treatment or surgical care.

C. This section shall not be construed to prevent an infant's parent, parents or guardian from refusing to give consent to medical treatment or surgical care which is not medically necessary, including care or treatment which either:

1. Is not necessary to save the life of the infant.

2. Has a potential risk to the infant's life or health that outweighs the potential benefit to the infant of the treatment or care.

3. Is futile treatment or treatment that will do no more than temporarily prolong the act of dying when death is imminent.

D. In determining whether any of the possible medical treatments will be medically necessary for an infant, reasonable medical judgments in selecting among alternative courses of treatment shall be respected.

E. In this article, "infant" means a child less than one year of age.

§ 36-2282 Duty to inform; reports of denial or deprivation; disciplinary action prohibited; report to department of child safety

A. Any health care institution with a perinatal, obstetrical or pediatric unit shall inform its administrators and other employees associated with the perinatal, obstetrical or pediatric unit of:

1. Their duty pursuant to section 13-3620 to report any denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of the infant.

2. Their right to make a report free from any disciplinary action by the health care institution.

3. A full description of the manner in which a report is to be made.

B. A health care institution shall not take or threaten to take any disciplinary action against any employee in retaliation for the employee making a report pursuant to section 13-3620.

C. A health care institution as specified in subsection A of this section shall report all suspected incidents of denial or deprivation of medically necessary treatment, surgical care or nourishment with the intent to cause or allow the death of the infant to the department of child safety as each incident occurs.

§ 36-2283 Certain information to parents required

Any health care institution with a perinatal, obstetrical or pediatric unit shall make available to each parent of any newborn child born with an identifiable disability information it receives from public or private agencies regarding agencies which are available to provide the parent with assistance, information or support pertaining to the care of the child and the manner in which the agencies may be contacted.

§ 36-2284 Infant care review committee

A. All health care institutions that provide health care services to infants are encouraged to establish infant care review committees to assist the institutions in delivering health care and related services to infants and in complying with sections 36-2281 and 36-2283. Two or more health care institutions may establish a joint infant care review committee.

B. If any health care institution does not have an infant care review committee, the department of health services may establish an infant care review committee for one or more such institutions.

C. All proceedings, records and materials prepared in connection with reviews by an infant care review committee are confidential and are not subject to discovery, except that:

1. The findings and recommendations of the infant care review committee may be recorded in the infant's medical record.

2. The following information shall be provided on request to the infant's attending or consulting physicians, the infant's parents, legal guardian or custodian or the department of child safety:

(a) The infant's medical record number.

(b) The date and time of the review.

(c) A list of all persons presenting information to the committee.

(d) A list of all persons, including committee members, present during the deliberations of the committee.

(e) The recommendations of the committee.

D. A person present during deliberations of the infant care review committee or having access to its records shall not be subpoenaed to testify in any judicial or quasi-judicial proceeding as to the nature of the discussions held or to the opinions or statements of any person expressed during the proceedings.

E. This section shall not be construed to affect any patient's claim to privilege or privacy or to prevent the subpoena of a patient's medical records if they are otherwise subject to discovery or to restrict the powers and duties of the director pursuant to this chapter with respect to records and information that are not subject to this section. In any legal action brought against a health care institution alleging negligence for failure to adequately conduct an infant care review committee, representatives of the institution are permitted to testify as to whether there was an infant care review committee review concerning the subject matter being litigated. The contents and records of the infant care review committee proceedings are fully confidential and inadmissible as evidence in any court of law except as provided in subsection C of this section.

F. A person who in good faith and without malice takes any action or makes any recommendation as a member, agent or employee of a health care institution infant care review committee, or who furnishes any records, information or assistance to such a committee, is not subject to criminal liability or liability for civil damages or for any legal action in consequence thereof, nor shall the institution or institutions that established the committee or its officers, directors, employees or agents be liable for the activities of any such person. This subsection does not relieve any person of liability arising from treatment of a patient.

G. Any publication by any person of the proceedings of an infant care review committee or of the records or materials prepared in connection with the review by an infant care review committee shall be made only for the purposes provided in subsection C of this section or for research or statistical purposes authorized by the health care institution. Except as provided in subsection C of this section, the identity of any patient whose condition, care or treatment is mentioned in such proceedings, records or materials shall be kept confidential.

Chapter 23 Protection of Fetus or Embryo

Article 1 General Provisions

§ 36-2301 Duty to promote life of fetus or embryo delivered alive; rules; judicial enforcement; civil action; damages; definitions

A. If an abortion is performed and a human fetus or embryo is delivered alive, it is the duty of any physician performing such an abortion and any additional physician in attendance as required by section 36-2301.01 to see that all available means and medical skills are used to promote, preserve and maintain the life of such a fetus or embryo.

B. If an abortion is performed and a human fetus or embryo is delivered alive, the physician performing the abortion shall document and report to the department of health services the measures the physician performed to maintain the life of the fetus or embryo. If an abortion is performed and a human fetus or embryo with a lethal fetal condition is delivered alive, the physician performing the abortion shall also document and report to the department of health services the specific lethal fetal condition that was diagnosed before the performance of the abortion and that was confirmed by an examination performed after the human embryo or fetus was delivered alive.

C. Before an abortion of a human fetus or embryo diagnosed with a lethal fetal condition, the physician performing the abortion must comply with the requirements of section 36-2158, subsection A and shall also inform the woman, orally and in person, that if the fetus or embryo is delivered alive, the diagnosis must be confirmed after the delivery and the standard of care required in subsection D of this section must be given.

D. The director of the department of health services shall prescribe rules requiring an abortion clinic or a hospital that performs or induces an abortion at or after twenty weeks' gestational age as defined in section 36-2151 to establish, document and implement policies and procedures to ensure compliance with this section. At a minimum, these policies and procedures shall require that:

1. In the case of an abortion clinic, a person is designated to contact emergency services immediately at the birth of a fetus or embryo delivered alive to arrange transfer to a hospital.

2. At least one person who is trained in neonatal resuscitation is present in the room where the abortion takes place for any abortion performed or induced at or after twenty weeks' gestational age.

3. Establish a protocol for rapid neonatal resuscitation of a fetus or embryo delivered alive, including assessing respiration and heart rate, clearing secretions, positioning the airway, providing warmth, drying and administering oxygen as needed.

E. If an abortion is performed and a human fetus or embryo with a lethal fetal condition is delivered alive, and the protocol for rapid neonatal resuscitation of a fetus or embryo pursuant to subsection D of this section is complied with and any further treatment beyond what is prescribed pursuant to subsection D of this section will do no more than temporarily prolong the act of dying when death is imminent, no further treatment is required by this section.

F. A hospital that is not in substantial compliance with the rules or policies and procedures adopted pursuant to this section may be subject to the penalties and sanctions specified in sections 36-427 and 36-431.01.

G. An action to enforce this section shall be brought in the name of the state by the attorney general or the county attorney in the superior court in the county in which the violation occurred.

H. In addition to other remedies available under the common or statutory law of this state, any of the following persons may file a civil action to obtain appropriate relief for a violation of this section:

1. The mother of the human fetus or embryo delivered alive.

2. The father of the human fetus or embryo delivered alive, unless the pregnancy resulted from the plaintiff's criminal conduct.

3. A maternal grandparent of the human fetus or embryo delivered alive if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.

I. A civil action filed pursuant to subsection H of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides and may be based on a claim that the failure to see that all available means and medical skills were used to promote, preserve and maintain the life of the human fetus or embryo was a result of simple negligence, gross negligence or wanton, wilful or intentional misconduct or any other legal standard of care. Relief for a civil action filed pursuant to subsection H of this section may include any of the following:

1. Monetary damages for psychological, emotional and physical injuries resulting from the violation of this section.

2. Statutory damages in an amount equal to five thousand dollars or three times the cost of the abortion, whichever is greater.

3. Reasonable attorney fees and costs.

J. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

K. For the purposes of this section:

1. "Abortion" has the same meaning prescribed in section 36-2151.

2. "Delivered alive" means the complete expulsion or extraction from the mother of a fetus or embryo, regardless of the state of gestational development, who, after expulsion or extraction, whether or not the umbilical cord has been cut or the placenta is attached, shows any evidence of life, including one or more of the following:

(a) Breathing.

(b) A heartbeat.

(c) Umbilical cord pulsation.

(d) Definite movement of voluntary muscles.

3. "Lethal fetal condition" has the same meaning prescribed in section 36-2158.

§ 36-2301.01 Abortion of viable fetus; requirements; definitions

A. A physician shall not knowingly perform an abortion of a viable fetus unless:

1. The physician states in writing before the abortion is performed that the abortion is necessary to preserve the life or health of the woman, specifying the medical indications for and the probable health consequences of the abortion. The physician shall attach a copy of this statement to any fetal death report filed pursuant to section 11-593 or fetal death registration filed pursuant to section 36-329.

2. The physician uses the available method or technique of abortion most likely to preserve the life and health of the fetus, unless the use of such method or technique would present a greater risk to the life or health of the woman than the use of another available method or technique.

3. The physician states in writing the available methods or techniques considered, the method or technique used and the reasons for choosing that method or technique. The physician shall attach a copy of this statement to any fetal death report filed pursuant to section 11-593 or fetal death registration filed pursuant to section 36-329.

4. In addition to the physician performing the abortion, there is another physician in attendance who shall take control of and provide immediate medical care for a living child born as a result of the abortion.

5. The physician takes all reasonable steps during the performance of the abortion, consistent with the procedure used and in keeping with good medical practice, to preserve the life and health of the fetus, if these steps do not pose an increased risk to the life or health of the woman on whom the abortion is performed.

B. This section does not apply if there is a medical emergency.

C. For the purposes of this section and section 36-2301.02:

1. "Abortion" has the same meaning prescribed in section 36-2151.

2. "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates a pregnancy as to necessitate the immediate abortion of the pregnancy to avoid the woman's death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

3. "Physician" means any person licensed under title 32, chapter 13 or 17.

4. "Viable fetus" means the unborn offspring of human beings that has reached a stage of fetal development so that, in the judgment of the attending physician on the particular facts of the case, there is a reasonable probability of the fetus' sustained survival outside the uterus, with or without artificial support.

§ 36-2301.02 Review of ultrasound results

A. Beginning on January 1, 2001, a person shall not knowingly perform an abortion after twelve weeks' gestation unless the person estimates the gestational age of the fetus based on biparietal diameter and femur length according to the hadlok measurement system or other equivalent measurement systems using ultrasound examination as provided in rule.

B. Beginning on January 1, 2001, a person shall not knowingly perform an abortion after twelve weeks' gestation unless the person ensures that a copy of each ultrasound result taken of a fetus of a woman as a result of a second or third trimester abortion is sent to persons or corporations contracted pursuant to this section. The person performing the abortion shall ensure that the ultrasound result or results from the woman is sent in a manner that is distinguishable from, and not mixed with, any other set of ultrasound results and is accompanied with a copy of any report that notes the estimate of the fetus' gestational age that was made before the abortion.

C. The department of health services shall contract with qualified public or private persons or corporations for review of ultrasound results to determine compliance with this section. The department shall issue requests for proposals for the purpose of establishing contracts pursuant to this section. At a minimum, the contracts shall require the contractor to review ultrasound results to verify the accuracy of the fetus' estimated gestational age made before the abortion and to verify that the estimate was made in reasonable compliance with the hadlok measurement system or another equivalent measurement system as provided in rule.

D. The contractor shall use a statistically valid method of sampling to conduct the review of ultrasound results from a woman as a result of a second trimester abortion of a fetus of up to eighteen weeks' gestation. The contractor shall conduct a review of all ultrasound results from a woman as a result of an abortion of a fetus of eighteen or more weeks' gestation.

E. Beginning on January 1, 2001, on a monthly basis, persons or corporations providing ultrasound review services to the department pursuant to this section shall file a report with the director regarding ultrasound results, noting:

1. Any instances in which the contractor believes there was a significant inaccuracy in the estimated gestational age of the fetus made before the abortion.

2. Any circumstances that, based on the contractor's professional judgment, might explain a significant inaccuracy reported pursuant to paragraph 1 of this subsection.

3. Whether there was reasonable compliance pursuant to subsection C of this section.

4. Whether, based on the results of the review of each ultrasound, the physician should have filed a fetal death certificate with the department of health services as required by section 36-329, subsection C.

F. The department of health services shall forward the report or portions of the report within thirty working days to the appropriate professional regulatory boards for their review and appropriate action.

G. Except as provided by subsection F of this section, the reports required by this section are confidential and disclosable by the department or its contractor only in aggregate form for statistical or research purposes. Except as provided by subsection F of this section, information relating to any physician, hospital, clinic or other institution shall not be released. Personally identifiable patient information shall not be released by the department or its contractor.

§ 36-2302 Human fetus or embryo; prohibitions; physician-patient privilege inapplicable; definitions

A. A person may not use a human fetus or embryo or any part, organ or fluid of the fetus or embryo resulting from an abortion in animal or human research, experimentation or study or for transplantation, except for either of the following:

1. Diagnostic or remedial procedures for the purpose of determining the life or health of the human fetus or embryo or the mother or for preserving the life or health of the human fetus or embryo or the mother.

2. A pathological study.

B. A person may not experiment on a human fetus or embryo who is intended to be aborted.

C. A person may not perform or offer to perform an abortion for which part or all of the justification or reason is that the human fetus or embryo or any part, organ or fluid of the human fetus or embryo may be used for animal or human research, experimentation or study or for transplantation.

D. A person may not knowingly sell, transfer, distribute, give away, accept, use or attempt to use any human fetus or embryo or any part, organ or fluid of the human fetus or embryo resulting from an abortion in violation of this section.

E. A person may not aid or abet the sale, transfer, distribution, other unlawful disposition, acceptance, use or attempted use of a human fetus or embryo or any part, organ or fluid of the human fetus or embryo resulting from an abortion in violation of this section.

F. The physician-patient privilege as provided in section 13-4062, paragraph 4 does not prevent the production of documents or records relevant to an investigation arising under this section. All documents or records produced in an action brought pursuant to this section shall be inspected by the court in camera, and, before the documents or records are released to the requesting party, the court shall remove the names and other identifying information, if any, of the patients and substitute pseudonyms.

G. For the purposes of this section:

1. "Abortion" has the same meaning as prescribed in section 36-2151.

2. "Experimentation" means the use of a human fetus or embryo or any part, organ or fluid of the human fetus or embryo resulting from an abortion in any trial, test, procedure or observation carried out with the goal of verifying, refuting or establishing the validity of a hypothesis. Experimentation does not include a pathological study or a diagnostic or remedial test, procedure or observation that has the purpose of determining the life or health of the human fetus or embryo or preserving the life or health of the human fetus or embryo or the mother.

3. "Pathological study" means the examination of body tissue for diagnostic or forensic purposes.

§ 36-2303 Violation; classification

Any person who violates any provision of this article is guilty of a class 5 felony.

Article 2 Treatment of Embryos

§ 36-2311 Definitions

In this article, unless the context otherwise requires:

1. "Destructive human embryonic stem cell research" means any research that involves the disaggregation of any human embryo for the purpose of creating human pluripotent stem cells or human pluripotent stem cell lines.

2. "Human-animal hybrid" means any of the following:

(a) A human embryo into which a nonhuman cell or cells, or any component part of a nonhuman cell or cells, have been introduced.

(b) A hybrid human-animal embryo produced by fertilizing a human egg with a nonhuman sperm.

(c) A hybrid human-animal embryo produced by fertilizing a nonhuman egg with human sperm.

(d) An embryo produced by introducing a nonhuman nucleus into a human egg.

(e) An embryo produced by introducing a human nucleus into a nonhuman egg.

(f) An embryo containing at least haploid sets of chromosomes from both a human and a nonhuman life form.

(g) A nonhuman life form engineered so that human gametes develop within the body of a nonhuman life form.

(h) A nonhuman life form engineered so that it contains a human brain or a brain derived wholly or predominantly from human neural tissues.

3. "Human embryo" means a living organism of the species homo sapiens through the first fifty-six days of its development, excluding any time during which its development has been suspended.

4. "In vitro" means outside the human body.

5. "Purchase or sell" includes an exchange of cash, an in-kind payment or any other valuable financial or nonfinancial consideration. Purchase or sell does not include payment of costs related to donation of a human embryo for the purpose of implantation in the body of a woman.

§ 36-2312 Production of human embryo or human-animal hybrid; purchase or sale;

A. A person shall not intentionally or knowingly create or attempt to create an in vitro human embryo by any means other than fertilization through the combining of a human egg with a human sperm.

B. A person shall not intentionally or knowingly:

1. Create or attempt to create a human-animal hybrid.

2. Transfer or attempt to transfer a human embryo into a nonhuman womb.

3. Transfer or attempt to transfer a nonhuman embryo into a human womb.

4. Transport or receive for any purpose a human-animal hybrid.

C. A person shall not purchase or sell or offer to purchase or sell an in vitro human embryo and shall not advertise for the purchase or sale of an in vitro human embryo. This subsection does not prohibit payment to a physician by a patient or on a patient's behalf for otherwise lawful services to treat infertility.

D. A person who violates this section is guilty of a class 1 misdemeanor.

E. This section does not prohibit either of the following if the activity does not violate subsection B or meet the definition of human-animal hybrid:

1. Research involving the use of transgenic animal models containing human genes.

2. Xenotransplantation of human organs, tissues or cells into recipient animals other than animal embryos.

§ 36-2313 Destructive human embryonic stem cell research; violation; classification

A. A person shall not intentionally or knowingly engage in destructive human embryonic stem cell research.

B. A person who violates this section is guilty of a class 6 felony.

Article 3 Gestational Limit on Abortion

§ 36-2321 Definitions

In this article, unless the context otherwise requires:

1. "Abortion" has the same meaning prescribed in section 36-2151.

2. "Attempt to perform or induce an abortion" means to do or to omit doing anything that, under the circumstances as the physician believes them to be, is an act or omission that constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in violation of this article.

3. "Department" means the department of health services.

4. "Gestational age" or "probable gestational age" means the age of an unborn human being as calculated from the first day of the last menstrual period of the pregnant woman.

5. "Human being" means an individual member of the species homo sapiens, from and after the point of conception.

6. "Major bodily function" includes functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

7. "Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

8. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

§ 36-2322 Gestational limit on abortion; medical emergency exception; physician reports; confidentiality

A. Except in a medical emergency, a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient's chart and, if required, in a report required to be filed with the department as set forth in subsection C of this section. The determination of probable gestational age shall be made according to standard medical practices and techniques used in the medical community.

B. Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.

C. In every case in which a physician performs or induces an abortion on an unborn human being whose gestational age is greater than fifteen weeks, the physician, within fifteen days after the abortion, shall file with the department, on a form supplied by the department, a report containing all of the following:

1. The date the abortion was performed.

2. Specific method of abortion used.

3. The probable gestational age of the unborn human being and the method used to calculate gestational age.

4. A statement that the abortion was necessary because of a medical emergency.

5. The specific medical indications supporting the determination that a medical emergency existed.

6. The probable health consequences of the abortion.

7. The physician's signature as the physician's attestation under oath that the information stated is true and correct to the best of the physician's knowledge.

D. Reports required and submitted pursuant to subsection C of this section may not contain the name of the maternal patient on whom the abortion was performed or any other information or identifiers that would make it possible to identify, in any manner or under any circumstances, a woman who obtained or sought to obtain an abortion.

§ 36-2323 Department; forms

The department shall create the forms required by section 36-2322 within thirty days after September 24, 2022. The reporting requirements of section 36-2322 on forms published by the department do not apply until ten days after the requisite forms have been made available or September 24, 2022, whichever is later.

§ 36-2324 Violation; classification; exclusion from prosecution

A. Any physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B is guilty of a class 6 felony.

B. A pregnant woman on whom an abortion is performed, induced or attempted in violation of section 36-2322 may not be prosecuted for conspiracy to commit any violation of this article.

§ 36-2325 Unprofessional conduct; civil penalties

A. A physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B commits an act of unprofessional conduct and the physician's license to practice medicine in this state shall be suspended or revoked pursuant to title 32, chapter 13 or 17, as applicable.

B. A physician who knowingly or intentionally delivers to the department any report required by section 36-2322, subsection C that contains a false statement is subject to a civil penalty of not more than $10,000 imposed by the department.

C. A physician who knowingly or intentionally fails to file with the department any report required by section 36-2322, subsection C is subject to a civil penalty of not more than $10,000 imposed by the department.

§ 36-2326 Enforcement; attorney general

The attorney general may bring an action in law or equity to enforce this article on behalf of the director of the department, the Arizona medical board or the board of osteopathic examiners in medicine and surgery.

Chapter 24 Medically-Underserved Area Health Services

Article 1 General Provisions

§ 36-2351 Definitions

In this chapter, unless the context otherwise requires:

1. "Construction" means building, erection, fabrication or installation.

2. "Coordinating medical provider" means a physician or group of physicians, or any combination thereof, which has entered into an agreement with a county, incorporated city or town, health service district or the department to supervise the medical care offered at a medical clinic, as defined by this section.

3. "Department" means the department of health services.

4. "Health service district" means a health service district established pursuant to title 48, chapter 16, article 1.

5. "Hospital" means a health care institution licensed as a hospital pursuant to chapter 4, article 2 of this title.

6. "Medical clinic" means a facility, whether mobile or stationary, which provides ambulatory medical care in a medically-underserved area through the employment of physicians, professional nurses, physician assistants or other health care technical and paraprofessional personnel.

7. "Physician" means a physician licensed pursuant to title 32, chapter 13, 14 or 17.

§ 36-2352 Designation of medically-underserved areas

A. The department shall designate areas of medical need in this state as medically-underserved if either:

1. The area is designated as a health professional shortage area as defined in 42 Code of Federal Regulations part 5.

2. The area is designated as medically underserved by the department of health services by using an index that measures the following indicators:

(a) The availability of services based on a population to primary care provider ratio.

(b) The area's geographic accessibility to health care services.

(c) The percentage of the area's population that is at or below a designated federal poverty level.

(d) The health needs of the area as determined by factors which may include the incidence of infant mortality, low weight births and inadequate prenatal care.

(e) Other factors indicative of medically underserved areas which may include unemployment and the presence of farm workers, minorities and the elderly.

B. The department of health services shall submit a report to the president of the senate and the speaker of the house of representatives beginning October 1, 1996 and every two years thereafter that reevaluates the criteria, effectiveness and recommendations for changes, if necessary, to the index. The report shall also include a summary of the communities designated as medically underserved and a listing of the programs they were able to utilize based on the medically underserved designation.

§ 36-2353 Medically-underserved areas; selection of coordinating medical providers

A. For each area designated as medically-underserved, the department may assist counties, incorporated cities and towns or health service districts to recruit a coordinating medical provider. Selection of a coordinating medical provider shall be based upon such provider's proximity to the medically-underserved area and the ability and willingness of such provider to fulfill the requirements established pursuant to section 36-2354.

B. If no coordinating medical provider is located in or near the medically-underserved area, the university of Arizona may agree to serve as the coordinating medical provider for the area.

§ 36-2354 Coordinating medical provider; duties

A coordinating medical provider for a medically-underserved area shall perform certain functions as determined by the department in order to ensure the provision of adequate medical care by the medical clinic. These functions may include:

1. Diagnostic services through a communications system between the clinic and the coordinating medical provider.

2. Overall direction of medical care offered at the clinic or facility, including a periodic evaluation of the quality of such care.

3. Drug prescription services.

4. Communication services to facilitate patient treatment during emergency transit to the clinic or a hospital.

§ 36-2355 Financial responsibility for services rendered to indigents

Counties may enter into intergovernmental agreements pursuant to title 11, chapter 7, article 3, whereby indigents may receive medical services covered by the county indigent medical program in their county of residence at the nearest medical clinic, regardless of location. Such agreements may provide for reimbursement to the county which provides the medical services from the county in which the indigent resides.

Chapter 25 Health Care Quality

Article 1 Health Care Entity Quality Assurance Activities

§ 36-2401 Definitions

In this article, unless the context otherwise requires:

1. "Health care entity" means any of the following:

(a) A licensed health care provider.

(b) An entity that provides health care services through one or more licensed health care providers.

(c) An entity that contracts to provide or pays for health care services.

(d) A professional organization of licensed health care providers.

(e) A utilization or quality control peer review organization.

(f) A state health care provider.

(g) A component of the statewide emergency medical services and trauma system.

(h) A qualifying community health center as defined in section 36-2907.06.

(i) A committee or other organizational structure of a health care entity.

2. "Licensed health care provider" means a person or institution that is licensed or certified by this state to provide health care, medical services, nursing services or other health-related services.

3. "Quality assurance activities" means activities or proceedings of a health care entity:

(a) That are established for the purposes of reducing morbidity and mortality and for improving the quality of health care or encouraging proper utilization of health care services and facilities through the review of the qualifications, professional practices, training, experience, patient care, conduct, processes or data of licensed health care providers.

(b) That follow a process adopted by the health care entity that includes written standards and criteria.

4. "Quality assurance information" means information in oral, written or digital form that is submitted to, prepared for or by or considered by a health care entity for or in the course of quality assurance activities, including the record of the health care entity's actions and proceedings.

5. "State health care provider" means a department, agency, board or commission of the state and its officers, agents and employees that is a health care provider to clients, wards, patients or other persons in the control or custody of a department, agency, board or commission of the state and a health care provider rendering health care services on behalf of the state that is covered by insurance or self-insurance pursuant to section 41-621, 41-622 or 41-623.

§ 36-2402 Quality assurance activities; sharing of quality assurance information; immunity

A. State health care providers, hospitals and outpatient surgical centers shall, and other health care entities may, conduct quality assurance activities.

B. A health care entity may share quality assurance information with appropriate state licensing or certifying agencies and with licensed health care providers who are the subject of quality assurance activities. A hospital may share quality assurance information with other health care entities only with the approval of the hospital's medical executive committee or an equivalent committee.

C. A health care entity may share quality assurance information with other health care entities only for the purpose of conducting quality assurance activities.

D. A health care entity or person that provides or receives information, that participates, takes any action or makes any decision or recommendation in the course of quality assurance activities or that furnishes any records, information or assistance to a health care entity for or in the course of quality assurance activities is not subject to liability for civil damages or any legal action in consequence of such action except as provided in section 36-445.02.

E. Quality assurance activities conducted by state, county or local medical, pharmacy and dental associations and societies on behalf of a health care entity are immune from civil liability to the same degree as the facility for which the review activities are conducted.

F. Health care entities may jointly conduct quality assurance activities.

G. This section does not relieve any health care entity from liability arising from the treatment of a patient or from negligent credentialing decisions.

§ 36-2403 Confidentiality; protection from discovery proceedings and subpoena; exceptions

A. Quality assurance information shall be confidential and is not subject to subpoena or order to produce except in proceedings before the appropriate state licensing or certifying agency, or in actions by a licensed health care provider against a health care entity arising from the discipline of the licensed health care provider or the refusal, termination, suspension or limitation of privileges. A health care entity or a person who provides or receives information or who participates in, takes any action in or makes any decision or recommendation for or in the course of quality assurance activities may not be subpoenaed to testify in any judicial or quasi-judicial proceeding relating to the subject matter of the quality assurance activities.

B. This article shall not be construed to affect any patient's claim to privilege or privacy or to prevent the subpoena of a patient's health care records if they are otherwise subject to discovery. In any legal action brought pursuant to section 36-2402 in which it is alleged that quality assurance activities were inadequate or were negligently conducted, representatives of a health care entity are permitted to testify only as to whether there were quality assurance activities relating to the subject matter being litigated and the date or dates of the quality assurance activities.

C. Sharing of information about quality assurance activities in accordance with section 36-2402 does not waive or otherwise impair the confidentiality of the information shared. Governing bodies and administrative and other personnel of a health care entity may participate in quality assurance activities without waiving confidentiality. All individuals or entities sharing or receiving quality assurance information shall maintain the information confidentially in accordance with this section.

D. A state agency or the affected licensed health care provider receiving or reviewing quality assurance information pursuant to section 36-2402 shall maintain the information confidentially, and such entities and individuals are subject to the same provisions concerning discovery and use in legal actions as are health care entities.

E. Except as otherwise provided in this subsection, information that is otherwise discoverable does not become confidential based solely on its submission to or consideration by a health care entity conducting confidential quality assurance activities. A health care entity conducting quality assurance activities may not produce such information if discovery of such information might reveal the deliberative process engaged in during such quality assurance activities.

F. This section does not apply to information considered confidential under section 36-2917.

Article 2 Orthotic and Prosthetic Device Standards

§ 36-2411 Custom orthotic and custom prosthetic devices; requirements; definition

A. Beginning January 1, 2018, a custom orthotic or custom prosthetic device furnished to an individual shall meet all of the following requirements:

1. Except for a custom orthotic or custom prosthetic device provided by a health care provider who is licensed pursuant to title 32, chapter 7, 13, 17, 19, 25 or 34, be provided by a fabricator or supplier that is accredited by an independent accreditation organization approved by the secretary of the United States department of health and human services pursuant to 42 United States Code section 1395m(a)(20)(B) and the regulations promulgated thereunder.

2. Be provided by a health care provider that is a qualified practitioner as defined in 42 United States Code section 1395m(h)(1)(F) or is licensed pursuant to title 32, chapter 7, 13, 17, 19, 25 or 34.

3. Be the subject of a valid prescription for the custom orthotic or custom prosthetic device.

B. Except for a custom orthotic or custom prosthetic device provided by a health care provider who is licensed pursuant to title 32, chapter 7, 13, 17, 19, 25 or 34, a health care provider that does not receive insurance payment for a custom orthotic or custom prosthetic device because the custom orthotic or custom prosthetic device or the provider does not meet the requirements of subsection A of this section may not attempt to collect payment or reimbursement for the amount of the coverage denial for the custom orthotic or custom prosthetic device from the patient. This subsection applies only if the coverage denial is strictly based on the custom orthotic or custom prosthetic device or the provider not meeting the requirements of subsection A of this section.

C. This section does not:

1. Require a health care provider to accept medicare patients.

2. Restrict the ability of a licensed health care provider to issue a valid prescription for a custom orthotic or custom prosthetic device pursuant to the applicable state law provided that the custom orthotic or custom prosthetic device is molded, fabricated and fitted by a provider pursuant to subsection A of this section.

3. Prevent a licensed health care provider, that does not meet the requirements in subsection A of this section, from engaging in the profession or occupation for which the health care provider is licensed, provided that the licensed health care provider does not bill or otherwise receive insurance payment or collect reimbursement from a patient for the custom orthotic or custom prosthetic device.

D. For the purposes of this section, "custom orthotic or custom prosthetic device" means an orthotic or prosthetic device that is individually fabricated for a patient over a positive mold, a tracing or a scan of the patient. Custom orthotic or custom prosthetic device does not include shoes and shoe inserts, a dental device, a hearing-related device or the replacement of all or part of an internal body organ.

Chapter 26 Nutritional Supplements

Article 1 General Provisions

§ 36-2451 Definitions

In this chapter, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department of health services.

3. "Laetrile", also known as amygdalin or vitamin B-17, means a cyano-genetic glycoside, which is processed from the seeds of certain fruits, including apricots, peaches and plums.

4. "Nutritional supplement" means any vitamin essential to, important in, or claimed to have value in human nutrition, which shall include laetrile or amygdalin, also known as vitamin B-17.

§ 36-2452 Distribution and sale of laetrile; labeling requirements

A. Laetrile may be distributed or sold by any person within this state and no special license or prescription shall be required for the sale or distribution of this nutritional supplement.

B. The label or other device affixed to a container containing laetrile shall:

1. Clearly identify the nutritional supplement contained therein as laetrile or amygdalin and, at the option of the manufacturer, vitamin B-17.

2. Include a statement that the nutritional supplement contained therein has not been approved as a treatment or cure for cancer by the food and drug administration of the United States department of health, education and welfare.

§ 36-2453 Inspection of premises; violation; injunction

A. The department shall periodically inspect each location in which laetrile is manufactured, prepared and packaged in this state to verify compliance with sanitary standards.

B. Upon determining that a violation of sanitary standards has occurred at a location in which laetrile is manufactured, prepared or packaged, the director shall request the attorney general to seek an injunction in superior court to close the location until compliance with sanitary standards is ensured.

Chapter 27 Controlled Substances Act

Article 1 General Provisions

§ 36-2501 Definitions

A. In this chapter, unless the context otherwise requires:

1. "Board" means the Arizona state board of pharmacy.

2. "Cannabis" means the following substances under whatever names they may be designated:

(a) Marijuana.

(b) All parts of any plant of the genus cannabis, whether growing or not, its seeds, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake or the sterilized seed of such plant which is incapable of germination.

(c) Every compound, manufacture, salt, derivative, mixture or preparation of such resin, tetrahydrocannabinol (T.H.C.), or of such plants from which the resin has not been extracted.

3. "Controlled substance" means a drug, substance or immediate precursor in schedules I through V of article 2 of this chapter and the rules adopted pursuant to article 2 of this chapter.

4. "Department" means the department of public safety.

5. "Drug dependent person" means a person who is using a controlled substance and who is in a state of psychic or physical dependence, or both, arising from the use of that substance on a continuous basis. Drug dependence is characterized by behavioral and other responses which include a strong compulsion to take the substance on a continuing basis in order to experience its psychic effects or to avoid the discomfort caused by its absence.

6. "Drug enforcement administration" means the drug enforcement administration of the department of justice of the United States or its successor agency.

7. "Immediate precursor" means a substance that the board has found to be and by rule designates as being the principal compound commonly used or produced primarily for use and that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.

8. "Narcotic drug" means any of the following whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis:

(a) Opium and opiate and any salt, compound, derivation or preparation of opium or opiate.

(b) Any salt, compound, isomer, derivative or preparation that is chemically equivalent or identical with any of the substances referred to in subdivision (a) of this paragraph but not including the isoquinoline alkaloids of opium.

(c) Opium poppy and poppy straw.

(d) Coca leaves and any salt, compound, derivation or preparation of coca leaves including cocaine and its optical isomers and any salt, compound, isomer, derivation or preparation that is chemically equivalent or identical with any of these substances but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.

(e) Cannabis.

9. "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.

10. "Opium poppy" means the plant of the genus papaver, except its seeds.

11. "Poppy straw" means all parts, except the seeds, of the opium poppy after mowing.

12. "Production" means the manufacture, planting, cultivating, growing or harvesting of a controlled substance.

13. "Registrant" means a person registered under the provisions of the federal controlled substances act (P.L. 91-513; 84 Stat. 1242; 21 U.S.C. sec. 801 et seq.).

14. "Schedule I controlled substances" means the controlled substances identified, prescribed or listed in or adopted by rule pursuant to section 36-2512.

15. "Schedule II controlled substances" means the controlled substances identified, prescribed or listed in or adopted by rule pursuant to section 36-2513.

16. "Schedule III controlled substances" means the controlled substances identified, prescribed or listed in or adopted by rule pursuant to section 36-2514.

17. "Schedule IV controlled substances" means the controlled substances identified, prescribed or listed in or adopted by rule pursuant to section 36-2515.

18. "Schedule V controlled substances" means the controlled substances identified, prescribed or listed in or adopted by rule pursuant to section 36-2516.

19. "Scientific purpose" means research, teaching or chemical analysis.

20. "State", when applied to a part of the United States, means any state, district, commonwealth, territory or insular possession of the United States and any area subject to the legal authority of the United States of America.

B. Words or phrases in this chapter, if not defined in subsection A of this section, have the definitions given them in title 32, chapter 18, article 1, unless the context otherwise requires.

Article 2 Schedules

§ 36-2511 Nomenclature

(L21, Ch. 61, sec. 12)

The controlled substances listed or to be listed in the schedules in sections 36-2512, 36-2513, 36-2514, 36-2515, 36-2516 and 36-2517 or the rules adopted pursuant to this article are included by whatever official, common, usual, chemical or trade name designated.

§ 36-2511 (Version 2) Nomenclature

(L25, Ch. 231, sec. 1; Conditionally Eff.)

The controlled substances listed or to be listed in the schedules in sections 36-2512, 36-2513, 36-2514, 36-2515, 36-2516, 36-2517 and 36-2517.02 or the rules adopted pursuant to this article are included by whatever official, common, usual, chemical or trade name designated.

§ 36-2512 Substances in schedule I; rules

A. The board shall adopt by rule the schedule I controlled substances listed in 21 Code of Federal Regulations section 1308.11 and section 13-3401 and shall amend the rules, as necessary, to reflect any changes in the schedule I controlled substance designations.

B. The board may except by rule any compound, mixture or preparation containing any substance adopted by rule pursuant to this section from the application of all or any part of this chapter if the compound, mixture or preparation contains one or more active medicinal ingredients and if the admixtures are included therein in combinations, quantity, proportion or concentration that vitiates the potential for abuse.

§ 36-2513 Substances in schedule II; rules

A. The board shall adopt by rule the schedule II controlled substances listed in 21 Code of Federal Regulations section 1308.12 and shall amend the rules, as necessary, to reflect any changes in the schedule II controlled substance designations.

B. The board may except by rule any compound, mixture or preparation containing any substance adopted by rule pursuant to this section from the application of all or any part of this chapter if the compound, mixture or preparation contains one or more active medicinal ingredients and if the admixtures are included therein in combinations, quantity, proportion or concentration that vitiates the potential for abuse.

§ 36-2514 Substances in schedule III; rules; definition

A. The board shall adopt by rule the schedule III controlled substances listed in 21 Code of Federal Regulations sections 1300.01 and 1308.13 and shall amend the rules, as necessary, to reflect any changes in the schedule III controlled substance designations.

B. If any person prescribes, dispenses or distributes an anabolic steroid for human use that has been approved by the United States food and drug administration for the express intent of administration through implants to cattle or other nonhuman species, the person shall be considered to have prescribed, dispensed or distributed an anabolic steroid within the meaning of this section.

C. The board may except by rule any compound, mixture or preparation containing any substance adopted by rule pursuant to this section from the application of all or any part of this chapter if the compound, mixture or preparation contains one or more active medicinal ingredients and if the admixtures are included therein in combinations, quantity, proportion or concentration that vitiates the potential for abuse.

D. For the purposes of this section, "anabolic steroid" means any drug or hormonal substance that is chemically or pharmacologically related to testosterone, other than estrogens, progestins, corticosteroids and dehydroepiandrosterone.

§ 36-2515 Substances in schedule IV; rules

A. The board shall adopt by rule the schedule IV controlled substances listed in 21 Code of Federal Regulations section 1308.14 and shall amend the rules, as necessary, to reflect any changes in the schedule IV controlled substance designations.

B. The board may except by rule any compound, mixture or preparation containing any substance adopted by rule pursuant to this section from the application of all or any part of this chapter if the compound, mixture or preparation contains one or more active medicinal ingredients and if the admixtures are included therein in combinations, quantity, proportion or concentration that vitiates the potential for abuse.

§ 36-2516 Substances in schedule V; rules

A. The board shall adopt by rule the schedule V controlled substances listed in 21 Code of Federal Regulations section 1308.15 and shall amend the rules, as necessary, to reflect any changes in the schedule V controlled substance designations.

B. Any compound or preparation containing the single active ingredient ephedrine or any of its salts is included in schedule V.

§ 36-2517 United States food and drug administration; approved medication

Any compound, mixture or preparation that contains cannabidiol and that is approved by the United States food and drug administration and rescheduled by the United States drug enforcement administration is a controlled substance for the purposes of this chapter and may be prescribed in this state.

§ 36-2517.01 United States food and drug administration; approved medication; rescheduling

(L23, Ch. 97, sec. 2. Conditionally Eff.)

Any compound, mixture or preparation that contains 3, 4-methylenedioxymethamphetamine and that is approved by the United States food and drug administration and rescheduled by the United States drug enforcement administration to a schedule other than schedule I of the controlled substances act (21 United States Code sections 801 through 904) is a controlled substance for the purposes of this chapter and may be prescribed in this state.

§ 36-2517.02 United States food and drug administration; approved medication; rescheduling

(Conditionally Eff.)

Any pharmaceutical composition of crystalline polymorph psilocybin that is approved by the United States food and drug administration and rescheduled by the United States drug enforcement administration to a schedule other than schedule I of the controlled substances act (P.L. 91-513; 84 Stat. 1242; 21 United States Code sections 801 through 904) is a controlled substance for the purposes of this chapter and may be prescribed in this state.

§ 36-2518 Schedule exemptions; rules

The rules adopted by the board pursuant to sections 36-2512, 36-2513, 36-2514, 36-2515 and 36-2516 may not include any material, compound, mixture or preparation that contains any quantity of a controlled substance and that is listed as an exempt substance in 21 Code of Federal Regulations section 1308.22, 1308.24, 1308.26, 1308.32 or 1308.34.

Article 3 Regulation of Manufacture, Distribution and Dispensing of Controlled Substances

§ 36-2521 Rules

The board may promulgate necessary and reasonable rules relating to the registration and control of the manufacture, distribution and dispensing of controlled substances within this state.

§ 36-2522 Registration requirements

A. Every person who manufactures, distributes, dispenses, prescribes or uses for scientific purposes any controlled substance within this state or who proposes to engage in the manufacture, distribution, prescribing or dispensing of or using for scientific purposes any controlled substance within this state must first:

1. Obtain and possess a current license or permit as a medical practitioner as defined in section 32-1901 or as a pharmacy, pharmacist, manufacturer or wholesaler pursuant to title 32, chapter 18.

2. Be a registrant under the federal controlled substances act (P.L. 91-513; 84 Stat. 1242; 21 United States Code section 801 et seq.).

B. A person who is registered under this chapter to manufacture, distribute, dispense, prescribe or use for scientific purposes controlled substances may possess, manufacture, distribute, dispense, prescribe or use for scientific purposes those substances to the extent authorized by that person's license or permit in conformity with this chapter and title 32, chapter 18.

C. The following persons need not register and may lawfully possess controlled substances under this chapter:

1. An agent or employee of any registered manufacturer, distributor or dispenser of any controlled substance if he is acting in the usual course of his business or employment.

2. A common or contract carrier or warehouseman or that person's employee whose possession of any controlled substance is in the usual course of business or employment.

3. An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a medical practitioner or in lawful possession of a schedule V substance.

4. An officer or employee of the department of public safety, a professional regulatory board established by title 32, chapter 7, 11, 13, 14, 15, 16, 17, 18, 21, 25 or 29 or the Arizona state board of pharmacy or a peace officer as defined in section 1-215 in the lawful performance of that person's duties.

D. The board may waive by rule the requirement for registration of certain manufacturers, distributors or dispensers if the board finds waiver consistent with the public health and safety or the requirements of the United States drug enforcement administration.

E. The board or its designee may inspect the establishment of a registrant or applicant for registration in accordance with the board's regulation if the board or its designee has information that the board or its designee believes would require an on-site inspection.

§ 36-2523 Records of registrants; inspection; confidentiality

A. Persons registered to manufacture, distribute or dispense controlled substances under this chapter shall keep records and maintain inventories in conformance with the record keeping and inventory requirements of federal law and title 32, chapter 18, and with any additional rules the board issues. Prescription orders must be filed as required by section 36-2525.

B. A person who holds a permit to operate a pharmacy issued under title 32, chapter 18 shall inventory schedule II, III, IV and V controlled substances as prescribed by federal law. The permit holder shall conduct this inventory on May 1 of each year or as directed by the Arizona state board of pharmacy. The permit holder shall also conduct this inventory if there is a change of ownership or discontinuance of business or within ten days of a change of a pharmacist in charge.

C. These records and inventories shall be open for inspection by peace officers in the performance of their duties. An officer shall not divulge information obtained pursuant to this subsection except in connection with a prosecution, investigation, judicial proceeding or administrative proceeding in which the person to whom the information relates is a party.

§ 36-2524 Order forms

Controlled substances in schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form. Compliance with the provisions of federal law respecting order forms shall be deemed compliance with this section.

§ 36-2525 Prescription orders; labels; recordkeeping; definition

A. In addition to the requirements of section 32-1968 pertaining to prescription orders for prescription-only drugs, the prescription order for a controlled substance shall bear the name, address and federal registration number of the prescriber. A prescription order for a schedule II controlled substance drug other than a hospital drug order for a hospital inpatient shall contain only one drug order per prescription blank. If authorized verbally by the prescriber, the pharmacist may make changes to a written or electronic schedule II controlled substance prescription order, except for any of the following:

1. The patient's name.

2. The prescriber's name.

3. The drug name.

B. The pharmacist must document on the original prescription order the changes that were made pursuant to the verbal authorization and record the time and date the authorization was granted.

C. A person who is registered to dispense controlled substances under this chapter must keep and maintain prescription orders for controlled substances as follows:

1. Prescription orders for controlled substances listed in schedules I and II must be maintained in a separate prescription file for controlled substances listed in schedules I and II only.

2. Prescription orders for controlled substances listed in schedules III, IV and V must be maintained either in a separate prescription file for controlled substances listed in schedules III, IV and V only or in a form that allows them to be readily retrievable from the other prescription records of the registrant. For the purposes of this paragraph, "readily retrievable" means that, when the prescription is initially filed, the face of the prescription is stamped in red ink in the lower right corner with the letter "C" in a font that is at least one inch high and that the prescription is filed in the usual consecutively numbered prescription file for noncontrolled substance prescriptions. The requirement to stamp the hard copy prescription with a red "C" is waived if a registrant employs an electronic data processing system or other electronic recordkeeping system for prescriptions that allows identification by prescription number and retrieval of original documents by the prescriber's name, patient's name, drug dispensed and date filled.

D. Except in emergency situations in conformity with subsection E of this section, under the conditions specified in subsections F and G of this section or when dispensed directly by a medical practitioner to an ultimate user, a controlled substance in schedule II shall not be dispensed without either the written prescription order in ink or indelible pencil or typewritten and manually signed by the medical practitioner or an electronic prescription order as prescribed by federal law or regulation. A schedule II controlled substance that is an opioid may be dispensed only with an electronic prescription order as prescribed by federal law or regulation. A prescription order for a schedule II controlled substance shall not be dispensed more than ninety days after the date on which the prescription order was issued. Notwithstanding any other provision of this section, a pharmacy may sell and dispense a schedule II controlled substance prescribed by a medical practitioner who is located in another state if the prescription was issued to the patient according to and in compliance with the applicable laws of the state of the prescribing medical practitioner and federal law. A prescription order for a schedule II controlled substance shall not be refilled. A pharmacist is not in violation of this subsection and may dispense a prescription order in the following circumstances:

1. During any time period in which an established electronic prescribing system or a pharmacy management system is not operational or available in a timely manner. If the electronic prescribing system or a pharmacy management system is not operational or available, the pharmacist may dispense a prescription order that is written for a schedule II controlled substance that is an opioid. The pharmacist must maintain a record, for a period of time prescribed by the board, of when the electronic prescribing system or pharmacy management system is not operational or available in a timely manner.

2. The prescription order for a schedule II controlled substance that is an opioid is in writing and indicates that the medical practitioner who issued the prescription order provided care for the patient in a veterans administration facility, a health facility on a military base, an Indian health services hospital or other Indian health service facility, or a tribal-owned clinic.

E. In emergency situations, emergency quantities of schedule II controlled substances may be dispensed on an oral prescription order of a medical practitioner. Such an emergency prescription order shall be immediately reduced to writing by the pharmacist and shall contain all the information required for schedule II controlled substances except for the manual signing of the order by the medical practitioner. Within seven days after authorizing an emergency oral prescription order, the prescribing medical practitioner shall cause a written prescription order manually signed for the emergency quantity prescribed to be delivered to the dispensing pharmacist or an electronic prescription order to be transmitted to the dispensing pharmacist. In addition to conforming to other requirements for prescription orders for schedule II controlled substances, the prescription order shall indicate electronically or have written on its face "authorization for emergency dispensing" and the date of the oral order. If the prescribing medical practitioner fails to deliver such an emergency prescription order within seven days in conformance with board rules, the pharmacist shall notify the board. Failure of the pharmacist to notify the board voids the authority conferred by this subsection to dispense without a prescription order of a medical practitioner that is electronic or that is written and manually signed.

F. Notwithstanding subsections D and N of this section, a patient's medical practitioner or the medical practitioner's agent may transmit to a pharmacy by fax a prescription order written for a schedule II controlled substance, including opioids, if the prescription order is any of the following:

1. To be compounded for the direct administration to a patient by parenteral, intravenous, intramuscular, subcutaneous or intraspinal infusion.

2. For a resident of a long-term care facility.

3. For a patient who is enrolled in a hospice care program that is certified or paid for by medicare under title XVIII or a hospice program that is licensed by this state. The medical practitioner or the medical practitioner's agent must note on the prescription that the patient is a hospice patient.

G. A fax transmitted pursuant to subsection F of this section is the original written prescription order for purposes of this section and must be maintained as required by subsection C of this section.

H. Except when dispensed directly by a medical practitioner to an ultimate user, a controlled substance included in schedule III or IV that requires a prescription order as determined under state or federal laws shall not be dispensed without a written or oral prescription order of a medical practitioner or an electronic prescription order as prescribed by federal law or regulation. The prescription order shall not be filled or refilled more than six months after the date on which the prescription order was issued. A prescription order authorized to be refilled shall not be refilled more than five times. Additional quantities may only be authorized by the prescribing medical practitioner through issuance of a new prescription order that shall be treated by the pharmacist as a new and separate prescription order.

I. Except when dispensed directly by a medical practitioner to an ultimate user, a controlled substance that is included in schedule V and that requires a prescription order as determined under state or federal laws shall not be dispensed without a written or oral prescription order of a medical practitioner. The prescription order may be refilled as authorized by the prescribing medical practitioner but shall not be filled or refilled more than one year after the date of issuance.

J. A controlled substance that is listed in schedule III, IV or V and that does not require a prescription order as determined under state or federal laws may be dispensed at retail by a pharmacist or a pharmacy intern under the pharmacist's supervision without a prescription order to a purchaser who is at least eighteen years of age if all of the following are true:

1. It is for a legitimate medical purpose.

2. Not more than two hundred forty cubic centimeters (eight ounces) of any such controlled substance containing opium, nor more than one hundred twenty cubic centimeters (four ounces) of any other such controlled substance, nor more than forty-eight dosage units of any such controlled substance containing opium, nor more than twenty-four dosage units of any other controlled substance may be dispensed at retail to the same purchaser in any given forty-eight-hour period.

3. Not more than one hundred dosage units of any single active ingredient ephedrine preparation may be sold, offered for sale, bartered or given away to any one person in any one thirty-day period.

4. The pharmacist or pharmacy intern requires every purchaser of a controlled substance under this subsection who is not known to that person to furnish suitable identification, including proof of age if appropriate.

5. A bound record book for dispensing controlled substances under this subsection is maintained by the pharmacist and contains the name and address of the purchaser, the name and quantity of the controlled substance purchased, the date of each purchase and the name or initials of the pharmacist or pharmacy intern who dispensed the substance to the purchaser. The book shall be maintained in conformity with the recordkeeping requirements of section 36-2523.

K. In the absence of a law requiring a prescription for a schedule V controlled substance, the board, by rules, may require, or remove the requirement of, a prescription order for a schedule V controlled substance.

L. The label on a container of a controlled substance that is directly dispensed by a medical practitioner or pharmacist and that is not for the immediate administration to the ultimate user, such as a bed patient in a hospital, shall bear the name and address of the dispensing medical practitioner or pharmacist, the serial number, the date of dispensing, the name of the prescriber, the name of the patient or, if an animal, the name of the owner of the animal and the species of the animal, the directions for use and cautionary statements, if any, contained in the prescription order or required by law. If the controlled substance is included in schedule II, III or IV, the label shall bear a transfer warning to the effect: "Caution: federal law prohibits the transfer of this drug to any person other than the patient for whom it was prescribed". The container of a schedule II controlled substance that is an opioid that is directly dispensed by a pharmacist and that is not for the immediate administration to the ultimate user shall have a warning label prescribed by the board about potential addiction.

M. Controlled substances in schedules II, III, IV and V may be dispensed as electronically transmitted prescriptions if the prescribing medical practitioner is all of the following:

1. Properly registered by the United States drug enforcement administration.

2. Licensed in good standing in the United States jurisdiction in which the medical practitioner practices.

3. Authorized to issue such prescriptions in the jurisdiction in which the medical practitioner is licensed.

N. Notwithstanding any other provision of this section, each prescription order, except a prescription order under subsection F of this section, that is issued by a medical practitioner for a schedule II controlled substance that is an opioid shall be transmitted electronically to the dispensing pharmacy. A medical practitioner is not in violation of this subsection:

1. During any time in which an established electronic prescribing system or a pharmacy management system is not operational or available in a timely manner. If the electronic prescribing system or a pharmacy management system is not operational or available, the medical practitioner may write a prescription order for a schedule II controlled substance that is an opioid. The medical practitioner shall indicate on the written prescription order that the electronic prescribing system or pharmacy management system is not operational or available. The medical practitioner must maintain a record, for a period of time prescribed by the board, of when the electronic prescribing system or pharmacy management system is not operational or available in a timely manner.

2. If the medical practitioner writes a prescription order for a schedule II controlled substance that is an opioid that will be dispensed for the patient from a veterans administration facility, a health facility on a military base, an Indian health services hospital or other Indian health service facility, or a tribal-owned clinic.

O. The requirement in subsections D and N of this section for an electronic prescription order does not apply to a prescription order for a schedule II controlled substance that is an opioid that is issued for medication-assisted treatment for a substance use disorder.

P. The board, by rule, may provide additional requirements for prescribing and dispensing controlled substances.

Q. In consultation with the task force established pursuant to section 36-2603, the board may prescribe by rule additional exceptions to the electronic prescribing requirements specified in this section for both pharmacists and medical practitioners.

R. Notwithstanding subsections D and N of this section, a medical practitioner who is licensed pursuant to title 32, chapter 21 is not required to comply with the electronic prescribing requirements of subsections D and N of this section until the Arizona state veterinary medical examining board determines that electronic prescribing software is widely available for veterinarians and notifies the Arizona state board of pharmacy of that determination.

S. For the purposes of this section, "medication-assisted treatment" has the same meaning prescribed in section 32-3201.01.

Article 4 Offenses and Penalties

§ 36-2531 Prohibited acts; classification

A. It is unlawful for any person:

1. Who is subject to article 3 of this chapter to intentionally or knowingly distribute or dispense a controlled substance in violation of section 36-2525.

2. Who is a registrant to intentionally or knowingly manufacture a controlled substance not authorized by that person's registration or to intentionally or knowingly distribute or dispense a controlled substance not authorized by that person's registration to another registrant or other authorized person.

3. To intentionally or knowingly refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required under this chapter.

4. To intentionally or knowingly refuse entry into any premises for any inspection authorized by this chapter.

5. To knowingly dispense or deliver anabolic steroids without a written prescription or for a nontherapeutic use.

6. To intentionally or knowingly sell, buy, exchange or give away any preparation subject to section 36-2516 or the rules adopted pursuant to section 36-2516, unless the preparation is to be used for a legitimate medical purpose and in compliance with this chapter.

B. Notwithstanding any other law, any person who violates any provision of subsection A of this section is guilty of a class 4 felony.

C. It is unlawful for any person intentionally or knowingly:

1. To distribute as a registrant a controlled substance classified in schedule I or II, except pursuant to an order form as required by section 36-2524.

2. To furnish false or fraudulent material information in, or omit any material information from, any application, report or other document required to be kept or filed under this chapter or any record required to be kept by this chapter.

D. A person who violates any provision of subsection C of this section is guilty of a class 4 felony.

E. A person shall not provide a false prescription for a controlled substance or knowingly or intentionally acquire or obtain possession of a controlled substance by means of forgery, fraud, deception or subterfuge, including the forgery or falsification of a prescription or the nondisclosure of a material fact. A person who violates this subsection is guilty of a class 4 felony.

F. Controlled substances, vehicles and items used or intended for use in violation of this chapter are subject to seizure and forfeiture in the manner provided in title 13, chapter 39.

Article 5 Enforcement and Administration

§ 36-2541 Administrative inspections and warrants

A. Issuance and execution of administrative inspection warrants for purposes of this chapter shall be as follows:

1. A judge of a state court of record or any justice of the peace or magistrate within his jurisdiction and upon proper oath or affirmation showing probable cause may issue warrants for the purpose of conducting administrative inspections authorized by this chapter or rules adopted pursuant to this chapter and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this chapter, or rules and regulations adopted pursuant to this chapter, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant.

2. A warrant shall issue only upon an affidavit of a peace officer or a member, officer or employee of the board having knowledge of the facts alleged, sworn to before the judge or magistrate and establishing the grounds for issuing the warrant. If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, such judge or magistrate shall issue a warrant identifying the area, premises, building or conveyance to be inspected, the purpose of the inspection and the type of property to be inspected, if any. The warrant shall:

(a) State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof.

(b) Be directed to a peace officer to execute it.

(c) Command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified.

(d) Identify the item or types of property to be seized, if any.

(e) Direct that it be served during normal business hours and designate the judge or magistrate to whom it shall be returned.

3. A warrant issued pursuant to this section shall be executed and returned within ten days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

4. The judge or magistrate who has issued a warrant shall attach to such warrant a copy of the return and all papers returnable and file them with the clerk of the court in which the inspection was executed.

B. The board, its members, officers or employees and officers and employees of the department or other peace officers may make administrative inspections of controlled premises in accordance with the following provisions:

1. For purposes of this section only, "controlled premises" means:

(a) Places where persons registered or exempted from registration requirements under this chapter are required to keep records.

(b) Places including factories, warehouses, establishments and conveyances in which persons registered or exempted from registration requirements under this chapter are permitted to hold, manufacture, compound, process, sell, deliver or otherwise dispose of any controlled substance.

2. When executing an administrative inspection warrant issued pursuant to subsection A of this section a peace officer may be accompanied by a member, officer or employee of the board, and upon presenting the warrant and appropriate credentials to the owner, operator or agent in charge they may enter controlled premises for the purpose of conducting an administrative inspection.

3. When authorized by an administrative inspection warrant, such officer or employee may:

(a) Inspect and copy records required by this chapter to be kept.

(b) Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found in such premises and, except as provided in paragraph 5 of this subsection, all other things, including records, files, papers, processes, controls and facilities bearing on any violation of this chapter.

(c) Inventory any stock of any controlled substance and obtain samples of such substance.

4. This section does not prevent the inspection without a warrant of books and records pursuant to an administrative subpoena nor does it prevent entries and administrative inspections, including seizures of property, without a warrant:

(a) If the owner, operator or agent in charge of the controlled premises consents.

(b) In situations presenting imminent danger to health or safety.

(c) In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant.

(d) In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking.

(e) In all other situations in which a warrant is not constitutionally required.

5. An inspection authorized by this section shall not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator or agent in charge of the controlled premises consents in writing.

§ 36-2542 Cooperation of agencies

A. The board and department shall cooperate with federal and other state agencies in discharging responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances, including the dissemination of information to law enforcement agencies relating to any person who is known to have violated or who is suspected of violating this chapter to obtain a controlled substance in violation of section 36-2531.

B. Results, information and evidence received from the United States drug enforcement administration relating to the regulatory functions of this chapter, including results of inspections conducted by it, may be relied and acted upon by the board or department in the exercise of its regulatory functions under this chapter.

§ 36-2543 Review

All final civil determinations, findings and conclusions of the board or the department under this chapter are final and conclusive unless appealed pursuant to title 12, chapter 7, article 6.

§ 36-2544 Education; research; public notices

A. The board and department shall cooperate with the department of health services in carrying out educational programs designed to prevent and deter misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances. In connection with these programs they may:

1. Promote better recognition of the problems of misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances within the regulated industry and among interested groups and organizations.

2. Assist the regulated industry and interested groups and organizations in contributing to the reduction of misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances.

3. Consult with interested groups and organizations to aid them in solving administrative and organizational problems.

4. Evaluate procedures, projects, techniques and controls conducted or proposed as part of educational programs on misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances.

5. Disseminate the results of research on misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances to promote a better public understanding of what problems exist and what can be done to combat them.

6. Assist in the education and training of state and local law enforcement officials in their efforts to control misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances.

B. The board, department and department of health services shall encourage research on misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances. In connection with the research, and in furtherance of the enforcement of this chapter and title 13, chapter 34, they may:

1. Establish methods to assess accurately the effects of narcotic drugs, dangerous drugs, marijuana and controlled substances and identify and characterize those with potential for abuse.

2. Make studies and undertake programs of research to:

(a) Develop new or improved approaches, techniques, systems, equipment and devices to strengthen the enforcement of this chapter and title 13, chapter 34.

(b) Determine patterns of misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances and the social effects of such misuse and abuse.

(c) Improve methods for preventing, predicting, understanding and dealing with the misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances.

3. Enter into contracts with public agencies, institutions of higher education and private organizations or individuals for the purpose of conducting research, demonstrations or special projects which bear directly on misuse and abuse of narcotic drugs, dangerous drugs, marijuana and controlled substances.

C. The board may authorize the possession and distribution of narcotic drugs, dangerous drugs, marijuana and controlled substances for scientific purposes. Persons who obtain this authorization are exempt from state prosecution for possession and distribution of narcotic drugs, dangerous drugs, marijuana and controlled substances to the extent of the authorization.

D. The department shall prescribe the posting of a public notice designed to educate the public regarding the dangers of using anabolic steroids and human growth hormone to deter the illegal use of these drugs. The notice shall cite the laws prohibiting the use of anabolic steroids and human growth hormone and the criminal penalty for their use, distribution, unauthorized prescribing, possession and sale. The department shall require that this notice be displayed prominently in the following locations:

1. High schools, colleges and universities.

2. Professional athletic team facilities.

3. Facilities that offer, promote or provide physical fitness or body building programs to members or clients.

Article 6 Miscellaneous

§ 36-2551 Pending proceedings

All administrative proceedings pending under prior laws which are superseded by this chapter shall be continued and brought to a final determination in accord with the laws and rules in effect prior to the effective date of this chapter.

§ 36-2552 Continuation of rules

Any orders and rules promulgated under any law affected by this chapter and in effect on the effective date of this chapter and not in conflict with it continue in effect until modified, superseded or repealed.

Chapter 28 Controlled Substances Prescription Monitoring Program

Article 1 General Provisions

§ 36-2601 Definitions

In this article, unless the context otherwise requires:

1. "Board" means the Arizona state board of pharmacy or its designee.

2. "Dispenser" means a medical practitioner or pharmacy that is authorized to dispense controlled substances.

3. "Licensed health care provider" means a person who is licensed pursuant to title 32, chapter 7, 11, 13, 14, 15, 16, 17, 18, 19.1, 25, 29 or 33.

4. "Medical practitioner" means any person who is licensed and authorized by law to use and prescribe drugs and devices to treat sick and injured human beings or to diagnose or prevent sickness in human beings in this state or any state, territory or district of the United States.

5. "Patient utilization report" means all of the following information about a patient that is compiled by the program and disclosed pursuant to section 36-2606:

(a) Controlled substances prescription monitoring program data.

(b) Clinical alerts and other required alerts or indicators.

6. "Person" means an individual, partnership, corporation or association and the person's duly authorized agents.

7. "Program" means the controlled substances prescription monitoring program.

§ 36-2602 Controlled substances prescription monitoring program; contracts; retention and maintenance of records

A. The board shall adopt rules to establish a controlled substances prescription monitoring program. The program shall:

1. Be operated, monitored and maintained by the board.

2. Be staffed by the board.

3. Include a computerized central database tracking system to track the prescribing, dispensing and consumption of schedule II, III, IV and V controlled substances that are dispensed by a medical practitioner or by a pharmacy that holds a valid license or permit issued pursuant to title 32. The database shall include data from the department of health services that identifies residents of this state who possess a registry identification card issued pursuant to chapter 28.1 of this title. The tracking system shall not interfere with the legal use of a controlled substance for managing severe or intractable pain.

4. Assist law enforcement to identify illegal activity related to prescribing, dispensing and consuming schedule II, III, IV and V controlled substances.

5. Provide information to patients, medical practitioners and pharmacists to help avoid the inappropriate use of schedule II, III, IV and V controlled substances.

6. Be designed to minimize inconvenience to patients, prescribing medical practitioners and pharmacies while effectuating the collection and storage of information.

B. The board may enter into private or public contracts, including intergovernmental agreements pursuant to title 11, chapter 7, article 3, to ensure the effective operation of the program. Each contractor must comply with the confidentiality requirements prescribed in this article and is subject to the criminal penalties prescribed in section 36-2610.

C. The board shall maintain the following records for the following periods of time:

1. A record of dispensing a controlled substance for seven years after the date the controlled substance was dispensed.

2. Affidavits for the purpose of an open investigation by law enforcement for two years.

3. Court orders requesting medical record information in the program for two years.

4. A patient's request of the patient's own prescription history for two years.

5. A prescriber report for two years.

§ 36-2603 Computerized central database tracking system task force; consultation on electronic prescribing; membership

A. The board shall appoint a task force to help it administer the computerized central database tracking system, to identify educational, outreach and support services to advance medical practitioners' adoption of electronic prescribing of schedule II controlled substances and pharmacy implementation of section 36-2525 and to consult with regarding recommendations for exceptions to the electronic prescribing requirements prescribed in section 36-2525. The chairperson of the board shall chair the task force. The task force shall include the following members:

1. Pharmacists, medical practitioners and other licensed health care providers.

2. Representatives of professional societies and associations for pharmacists, medical practitioners and other licensed health care providers.

3. Representatives of professional licensing boards.

4. Representatives of the Arizona health care cost containment system administration.

5. Representatives of state and federal agencies that have an interest in controlling controlled substances.

6. Criminal prosecutors.

7. Representatives of a health information organization in this state.

B. The task force shall meet to establish the procedures and conditions relating to the release of prescription information pursuant to section 36-2604. The task force shall meet at least once each year and at the call of the chairperson.

C. Task force members serve at the pleasure of the board and are not eligible to receive compensation or reimbursement of expenses.

§ 36-2604 Use and release of confidential information; definitions

A. Except as otherwise provided in this section, prescription information submitted to the board pursuant to this article is confidential and is not subject to public inspection. The board shall establish procedures to ensure the privacy and confidentiality of patients and that patient information that is collected, recorded and transmitted pursuant to this article is not disclosed except as prescribed in this section.

B. The board or its designee shall review the prescription information collected pursuant to this article. If the board or its designee has reason to believe an act of unprofessional or illegal conduct has occurred, the board or its designee shall notify the appropriate professional licensing board. The board may delegate the duties prescribed in this subsection to the executive director pursuant to section 32-1904.

C. The board may release data collected by the program to the following:

1. A person who is authorized to prescribe or dispense controlled substances, or a delegate who is authorized by the prescriber or dispenser, to assist that person to provide medical or pharmaceutical care to a patient or to evaluate a patient or to assist with or verify compliance with the requirements of this chapter, the rules adopted pursuant to this chapter and the rules adopted by the department of health services to reduce opioid overdose and death.

2. An individual who requests the individual's own prescription monitoring information pursuant to section 12-2293.

3. A medical practitioner regulatory board established pursuant to title 32, chapter 7, 11, 13, 14, 15, 16, 17, 18, 25 or 29.

4. A local, state or federal law enforcement or criminal justice agency. The board shall provide this information only if the requesting agency has a valid search warrant and is using the information for an open investigation or complaint.

5. The Arizona health care cost containment system administration and contractors regarding persons who are receiving services pursuant to chapters 29 and 34 of this title or title XVIII of the social security act. Except as required pursuant to subsection B of this section, the board shall provide this information only if the administration or a contractor states in writing that the information is necessary for an open investigation or complaint or for performing a drug utilization review for controlled substances that supports the prevention of opioid overuse or abuse and the safety and quality of care provided to the member.

6. A health care insurer. Except as required pursuant to subsection B of this section, the board shall provide this information only if the health care insurer states in writing that the information is necessary for an open investigation or complaint or for performing a drug utilization review for controlled substances that supports the prevention of opioid overuse or abuse and the safety and quality of care provided to the insured.

7. A person who is serving a lawful order of a court of competent jurisdiction.

8. A person who is authorized to prescribe or dispense controlled substances and who performs an evaluation on an individual pursuant to section 23-1026.

9. A county medical examiner or alternate medical examiner who is directing an investigation into the circumstances surrounding a death as described in section 11-593 or a delegate who is authorized by the county medical examiner or alternate medical examiner.

10. The department of health services regarding persons who are receiving or prescribing controlled substances in order to implement a public health response to address opioid overuse or abuse, including a review pursuant to section 36-198. Except as required pursuant to subsection B of this section, the board shall provide this information only if the department states in writing that the information is necessary to implement a public health response to help combat opioid overuse or abuse.

D. Data provided by the board pursuant to this section may not be used for any of the following:

1. Credentialing health care professionals.

2. Determining payment.

3. Preemployment screening.

4. Any purpose other than as specified in this section.

E. For a fee determined by the board, the board may provide data to public or private entities for statistical, research or educational purposes after removing information that could be used to identify individual patients or persons who received prescriptions from dispensers.

F. Any employee of the administration, a contractor or a health care insurer who is assigned delegate access to the program shall operate under the authority and responsibility of the administration's, contractor's or health care insurer's chief medical officer or other employee who is a licensed health care professional and who is authorized to prescribe or dispense controlled substances. A delegate of the administration, a contractor or a health care insurer shall hold a valid license or certification issued pursuant to title 32, chapter 7, 11, 13, 14, 15, 16, 17, 18, 19.1, 25, 29 or 33 as a condition of being assigned and provided delegate access to the program by the board. Each employee of the administration, a contractor or a health care insurer who is a licensed health care professional and who is authorized to prescribe or dispense controlled substances may authorize not more than ten delegates.

G. If, after reviewing the information provided pursuant to subsection C, paragraph 4 of this section, an investigator finds no evidence of a statutory crime but suspects a medical practitioner of prescribing controlled substances inappropriately in manner or amount, the investigator may refer the medical practitioner to the relevant professional licensing board for investigation of possible deviation from the standard of care but may not arrest or otherwise undertake criminal proceedings against the medical practitioner.

H. A person who is authorized to prescribe or dispense controlled substances or the chief medical officer or other licensed health care professional of the administration, a contractor or a health care insurer who is authorized to prescribe or dispense controlled substances shall deactivate a delegate within five business days after an employment status change, the request of the delegate or the inappropriate use of the controlled substances prescription monitoring program's central database tracking system.

I. For the purposes of this section:

1. "Administration" and "contractor" have the same meanings prescribed in section 36-2901.

2. "Delegate" means any of the following:

(a) A licensed health care professional who is employed in the office of or in a hospital with the prescriber or dispenser.

(b) An unlicensed medical records technician, medical assistant or office manager who is employed in the office of or in a hospital with the prescriber or dispenser and who has received training regarding both the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 164, subpart E) and security standards (45 Code of Federal Regulations part 164, subpart C).

(c) A forensic pathologist, medical death investigator or other qualified person who is assigned duties in connection with a death investigation pursuant to section 11-594.

(d) A registered pharmacy technician trainee, licensed pharmacy technician or licensed pharmacy intern who works in a facility with the dispenser.

(e) Any employee of the administration, a contractor or a health care insurer who is authorized by the administration's, contractor's or health care insurer's chief medical officer or other licensed health care professional who is authorized to prescribe or dispense controlled substances.

3. "Health care insurer" has the same meaning prescribed in section 20-3151.

§ 36-2605 Controlled substances prescription monitoring program fund

A. The controlled substances prescription monitoring program fund is established consisting of legislative appropriations, transfers pursuant to section 32-1907 and any grants, gifts or donations received by the board. The board shall administer the fund. Monies in the fund are continuously appropriated and shall be used to operate the controlled substances prescription monitoring program established pursuant to section 36-2602.

B. The board may apply for grants and may accept gifts, grants or donations for the establishment and maintenance of the computerized prescription monitoring program.

§ 36-2606 Registration; access; requirements; mandatory use; annual user satisfaction survey; report; definitions

A. A medical practitioner regulatory board shall notify each medical practitioner who receives an initial or renewal license and who intends to apply for registration or has an active registration under the controlled substances act (21 United States Code sections 801 through 904) of the medical practitioner's responsibility to register with the Arizona state board of pharmacy and be granted access to the controlled substances prescription monitoring program's central database tracking system. The Arizona state board of pharmacy shall provide access to the central database tracking system to each medical practitioner who has a valid license pursuant to title 32 and who possesses an Arizona registration under the controlled substances act (21 United States Code sections 801 through 904). The Arizona state board of pharmacy shall notify each pharmacist of the pharmacist's responsibility to register with the Arizona state board of pharmacy and be granted access to the controlled substances prescription monitoring program's central database tracking system. The Arizona state board of pharmacy shall provide access to the central database tracking system to each pharmacist who has a valid license pursuant to title 32, chapter 18 and who is employed by either:

1. A facility that has a valid United States drug enforcement administration registration number.

2. The administration, a contractor or a health care insurer and who has a national provider identifier number.

B. The registration is:

1. Valid in conjunction with a valid United States drug enforcement administration registration number and a valid license issued by a medical practitioner regulatory board established pursuant to title 32, chapter 7, 11, 13, 14, 15, 16, 17, 25 or 29.

2. Valid in conjunction with a valid license issued by the Arizona state board of pharmacy for a pharmacist who is employed by either:

(a) A facility that has a valid United States drug enforcement administration registration number.

(b) The administration, a contractor or a health care insurer and who has a national provider identifier number.

3. Not transferable or assignable.

C. An applicant for registration pursuant to this section must apply as prescribed by the board.

D. Pursuant to a fee prescribed by the board by rule, the board may issue a replacement registration to a registrant who requests a replacement because the original was damaged or destroyed, because of a change of name or for any other good cause as prescribed by the board.

E. A person who is authorized to access the controlled substances prescription monitoring program's central database tracking system may do so using only that person's assigned identifier and may not use the assigned identifier of another person.

F. Beginning the later of October 1, 2017 or sixty days after the statewide health information exchange has integrated the controlled substances prescription monitoring program data into the exchange, a medical practitioner, before prescribing an opioid analgesic or benzodiazepine controlled substance listed in schedule II, III or IV for a patient, shall obtain a patient utilization report regarding the patient for the preceding twelve months from the controlled substances prescription monitoring program's central database tracking system at the beginning of each new course of treatment and at least quarterly while that prescription remains a part of the treatment. Each medical practitioner regulatory board shall notify the medical practitioners licensed by that board of the applicable date. A medical practitioner may be granted a one-year waiver from the requirement in this subsection due to technological limitations that are not reasonably within the control of the practitioner or other exceptional circumstances demonstrated by the practitioner, pursuant to a process established by rule by the Arizona state board of pharmacy.

G. Before a pharmacist dispenses or before a pharmacy technician or pharmacy intern of a remote dispensing site pharmacy dispenses a schedule II controlled substance, a dispenser shall obtain a patient utilization report regarding the patient for the preceding twelve months from the controlled substances prescription monitoring program's central database tracking system at the beginning of each new course of treatment.

H. The medical practitioner or dispenser is not required to obtain a patient utilization report from the central database tracking system pursuant to subsection F of this section if any of the following applies:

1. The patient is receiving hospice care or palliative care for a serious or chronic illness.

2. The patient is receiving care for cancer, a cancer-related illness or condition or dialysis treatment.

3. A medical practitioner will administer the controlled substance.

4. The patient is receiving the controlled substance during the course of inpatient or residential treatment in a hospital, nursing care facility, assisted living facility, correctional facility or mental health facility.

5. The medical practitioner is prescribing the controlled substance to the patient for not more than a five-day period for an invasive medical or dental procedure or a medical or dental procedure that results in acute pain to the patient.

6. The medical practitioner is prescribing the controlled substance to the patient for not more than a five-day period for a patient who has suffered an acute injury or a medical or dental disease process that is diagnosed in an emergency department setting and that results in acute pain to the patient. An acute injury or medical disease process does not include back pain.

I. On or before December 31, 2026, a vendor that provides electronic medical records services to a medical practitioner in this state shall integrate the vendor's electronic medical records system with the program's central database tracking system either directly or through the statewide health information exchange or a third-party vendor.

J. If a medical practitioner or dispenser uses electronic medical records that integrate data from the controlled substances prescription monitoring program, a review of the electronic medical records with the integrated data shall be deemed compliant with the review of the program's central database tracking system as required in subsection F of this section.

K. The board shall promote and enter into data sharing agreements to integrate and display patient utilization reports within electronic medical records.

L. By complying with this section, a medical practitioner or dispenser who acts in good faith, or the medical practitioner's or dispenser's employer, is not subject to liability or disciplinary action arising solely from either:

1. Requesting or receiving, or failing to request or receive, prescription monitoring data from the program's central database tracking system.

2. Acting or failing to act on the basis of the prescription monitoring data provided by the program's central database tracking system.

M. Notwithstanding any provision of this section to the contrary, medical practitioners or dispensers and their delegates are not in violation of this section during any time period in which the controlled substances prescription monitoring program's central database tracking system is suspended or is not operational or available in a timely manner. If the program's central database tracking system is not accessible, the medical practitioner or dispenser or the medical practitioner's or dispenser's delegate shall document the date and time the practitioner, dispenser or delegate attempted to use the central database tracking system pursuant to a process established by board rule.

N. The board shall conduct an annual voluntary survey of program users to assess user satisfaction with the program's central database tracking system. The survey may be conducted electronically. On or before December 1 of each year, the board shall provide a report of the survey results to the president of the senate, the speaker of the house of representatives and the governor and shall provide a copy of this report to the secretary of state.

O. This section does not prohibit a medical practitioner regulatory board or the Arizona state board of pharmacy from obtaining and using information from the program's central database tracking system.

P. For the purposes of this section:

1. "Administration" has the same meaning prescribed in section 36-2901.

2. "Contractor" has the same meaning prescribed in section 36-2901.

3. "Dispenser" means a pharmacist who is licensed pursuant to title 32, chapter 18.

4. "Emergency department" means the unit within a hospital that is designed to provide emergency services.

5. "Health care insurer" has the same meaning prescribed in section 20-3151.

§ 36-2607 Disciplinary action

A. The registrant's professional licensing board may revoke or suspend a registrant's registration or may place the registrant on probation for any of the following:

1. The registrant's professional licensing board determines that the registration was obtained by fraudulent means.

2. The registrant's professional licensing board takes action to revoke, suspend or place on probation the registrant's license, permit or registration to prescribe or dispense drugs.

3. The registration was issued through error.

4. The registrant knowingly files with the board any application, renewal or other document that contains false or misleading information or the registrant gives false or misleading testimony to the board.

5. The registrant knowingly makes a false report or record required by this article.

6. A registrant that dispenses controlled substances does not resolve discrepancies submitted to the program's central database tracking system within thirty business days after being notified of the error by the board.

7. A registrant that dispenses controlled substances does not resolve a failed attempt or missing transmission to the program's central database tracking system within thirty business days after the occurrence.

B. The board may deny a registration to an applicant for the grounds prescribed in subsection A of this section.

C. In addition to any other law, a licensed or permitted medical practitioner, pharmacist or pharmacy that fails to comply with the requirements of this article is subject to disciplinary action by the medical practitioner's, pharmacist's or pharmacy's professional licensing board. The board of pharmacy shall report to the appropriate professional licensing board the failure of a licensed or permitted medical practitioner, pharmacist or pharmacy to comply with the requirements of this article.

§ 36-2608 Reporting requirements; waiver; exceptions

A. If a medical practitioner dispenses a controlled substance listed in section 36-2513, 36-2514, 36-2515 or 36-2516 or the rules adopted pursuant to chapter 27, article 2 of this title, or if a prescription for a controlled substance listed in any of those sections that is approved by the United States food and drug administration is dispensed by a pharmacy in this state, a health care facility in this state for outpatient use or a board-permitted nonresident pharmacy for delivery to a person residing in this state, the medical practitioner, health care facility or pharmacy must report the following information as applicable and as prescribed by the board by rule:

1. The name, address, telephone number, prescription number and United States drug enforcement administration controlled substance registration number of the dispenser.

2. The name, address and date of birth of the person for whom the prescription is written.

3. The name, address, telephone number and United States drug enforcement administration controlled substance registration number of the prescribing medical practitioner.

4. The name, strength, quantity, dosage and national drug code number of the schedule II, III, IV or V controlled substance dispensed.

5. The date the prescription was dispensed.

6. The number of refills, if any, authorized by the medical practitioner.

B. Except as provided in subsection D of this section, a dispenser must use the latest version of the standard implementation guide for prescription monitoring programs published by the American society for automation in pharmacy to report the required information.

C. The board shall allow the reporter to transmit the required information by electronic data transfer if feasible or, if not feasible, on reporting forms as prescribed by the board. The reporter shall submit the required information once each day.

D. A dispenser who does not have an automated recordkeeping system capable of producing an electronic report in the established format may request a waiver from electronic reporting by submitting a written request to the board. The board shall grant the request if the dispenser agrees in writing to report the data by submitting a completed universal claim form as prescribed by the board by rule.

E. The board by rule may prescribe the prescription form to be used in prescribing a schedule II, III, IV or V controlled substance if the board determines that this would facilitate the reporting requirements of this section.

F. The reporting requirements of this section do not apply to the following:

1. A controlled substance that is administered directly to a patient.

2. A controlled substance that is dispensed by a medical practitioner at a health care facility licensed by this state if the quantity dispensed is limited to an amount adequate to treat the patient for a maximum of seventy-two hours with not more than two seventy-two-hour cycles within any fifteen-day period.

3. A controlled substance sample.

4. The wholesale distribution of a schedule II, III, IV or V controlled substance. For the purposes of this paragraph, "wholesale distribution" has the same meaning prescribed in section 32-1981.

5. A facility that is registered by the United States drug enforcement administration as a narcotic treatment program and that is subject to the recordkeeping provisions of 21 Code of Federal Regulations section 1304.24.

§ 36-2609 Use of information; civil immunity

A. An individual or entity that complies with the reporting requirements of section 36-2608 is not subject to civil liability or other civil relief for reporting the information to the board.

B. Unless a court of competent jurisdiction makes a finding of malice or criminal intent, the board, any other state agency or any person or entity in proper possession of information pursuant to this article is not subject to civil liability or other legal or equitable relief for any of the following acts or omissions:

1. Furnishing information pursuant to this article.

2. Receiving, using or relying on, or not using or relying on, information received pursuant to this article.

3. Information that was not furnished to the board.

4. Information that was factually incorrect or that was released by the board to the wrong person or entity.

§ 36-2610 Prohibited acts; violation; classification

A. A person who is subject to this article and who fails to report required information pursuant to section 36-2608 is guilty of a class 2 misdemeanor.

B. A person who is subject to this article and who knowingly fails to report required information to the board in violation of section 36-2608 is guilty of a class 1 misdemeanor.

C. A person who is subject to this article and who knowingly reports information to the board that the person knows to be false or fraudulent is guilty of a class 6 felony.

D. A person who is granted access to the information maintained by the board as required by this article and who knowingly discloses the information in a manner inconsistent with a legitimate professional or regulatory purpose, a legitimate law enforcement purpose, the terms of a court order or as otherwise expressly authorized by this article is guilty of a class 6 felony.

Chapter 28.1 Arizona Medical Marijuana Act

§ 36-2801 Definitions

(Caution: 1998 Prop. 105 applies)

In this chapter, unless the context otherwise requires:

1. "Allowable amount of marijuana":

(a) With respect to a qualifying patient, means:

(i) Two and one-half ounces of usable marijuana.

(ii) If the qualifying patient's registry identification card states that the qualifying patient is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility, except that the plants are not required to be in an enclosed, locked facility if the plants are being transported because the qualifying patient is moving.

(b) With respect to a designated caregiver, for each patient assisted by the designated caregiver under this chapter, means:

(i) Two and one-half ounces of usable marijuana.

(ii) If the designated caregiver's registry identification card provides that the designated caregiver is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility, except that the plants are not required to be in an enclosed, locked facility if the plants are being transported because the designated caregiver is moving.

(c) Does not include marijuana that is incidental to medical use, but is not usable marijuana.

2. "Cardholder" means a qualifying patient, a designated caregiver, a nonprofit medical marijuana dispensary agent or a independent third-party laboratory agent who has been issued and possesses a valid registry identification card.

3. "Debilitating medical condition" means one or more of the following:

(a) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn's disease or agitation of Alzheimer's disease or the treatment of these conditions.

(b) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

(i) Cachexia or wasting syndrome.

(ii) Severe and chronic pain.

(iii) Severe nausea.

(iv) Seizures, including those characteristic of epilepsy.

(v) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis.

(c) Any other medical condition or its treatment added by the department pursuant to section 36-2801.01.

4. "Department" means the department of health services or its successor agency.

5. "Designated caregiver" means a person who:

(a) Is at least twenty-one years of age.

(b) Has agreed to assist with a patient's medical use of marijuana.

(c) Has not been convicted of an excluded felony offense.

(d) Assists not more than five qualifying patients with the medical use of marijuana.

(e) May receive reimbursement for actual costs incurred in assisting a registered qualifying patient's medical use of marijuana if the registered designated caregiver is connected to the registered qualifying patient through the department's registration process. The designated caregiver may not be paid any fee or compensation for service as a caregiver. Payment for costs under this subdivision does not constitute an offense under title 13, chapter 34 or under title 36, chapter 27, article 4.

6. "Enclosed, locked facility" means a closet, room, greenhouse or other enclosed area that is equipped with locks or other security devices that permit access only by a cardholder.

7. "Excluded felony offense" means:

(a) A violent crime as defined in section 13-901.03, subsection B, that was classified as a felony in the jurisdiction where the person was convicted.

(b) A violation of a state or federal controlled substance law that was classified as a felony in the jurisdiction where the person was convicted but does not include:

(i) An offense for which the sentence, including any term of probation, incarceration or supervised release, was completed ten or more years earlier.

(ii) An offense involving conduct that would be immune from arrest, prosecution or penalty under section 36-2811, except that the conduct occurred before December 14, 2010 or was prosecuted by an authority other than the state of Arizona.

8. "Independent third-party laboratory" means an entity that has a national or international accreditation and that is certified by the department to analyze marijuana cultivated for medical use.

9. "Independent third-party laboratory agent" means an owner, employee or volunteer of a certified independent third-party laboratory who is at least twenty-one years of age and who has not been convicted of an excluded felony offense.

10. "Marijuana" means all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.

11. "Medical use" means the acquisition, possession, cultivation, manufacture, use, administration, delivery, transfer or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the patient's debilitating medical condition.

12. "Nonprofit medical marijuana dispensary" means a not-for-profit entity that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, sells or dispenses marijuana or related supplies and educational materials to cardholders. A nonprofit medical marijuana dispensary may receive payment for all expenses incurred in its operation.

13. "Nonprofit medical marijuana dispensary agent" means a principal officer, board member, employee or volunteer of a nonprofit medical marijuana dispensary who is at least twenty-one years of age and has not been convicted of an excluded felony offense.

14. "Physician" means a doctor of medicine who holds a valid and existing license to practice medicine pursuant to title 32, chapter 13 or its successor, a doctor of osteopathic medicine who holds a valid and existing license to practice osteopathic medicine pursuant to title 32, chapter 17 or its successor, a naturopathic physician who holds a valid and existing license to practice naturopathic medicine pursuant to title 32, chapter 14 or its successor or a homeopathic physician who holds a valid and existing license to practice homeopathic medicine pursuant to title 32, chapter 29 or its successor.

15. "Qualifying patient" means a person who has been diagnosed by a physician as having a debilitating medical condition.

16. "Registry identification card" means a document issued by the department that identifies a person as a registered qualifying patient, a registered designated caregiver, a registered nonprofit medical marijuana dispensary agent or a registered independent third-party laboratory agent.

17. "Usable marijuana":

(a) Means the dried flowers of the marijuana plant, and any mixture or preparation thereof.

(b) Does not include:

(i) The seeds, stalks and roots of the plant.

(ii) The weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.

18. "Verification system" means a secure, password-protected, web-based system that is established and maintained by the department and that is available to law enforcement personnel and nonprofit medical marijuana dispensary agents on a twenty-four-hour basis for verifying registry identification cards.

19. "Visiting qualifying patient" means a person:

(a) Who is not a resident of Arizona or who has been a resident of Arizona less than thirty days.

(b) Who has been diagnosed with a debilitating medical condition by a person who is licensed with authority to prescribe drugs to humans in the state of the person's residence or, in the case of a person who has been a resident of Arizona less than thirty days, the state of the person's former residence.

20. "Written certification" means a document dated and signed by a physician, stating that in the physician's professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition. The physician must:

(a) Specify the qualifying patient's debilitating medical condition in the written certification.

(b) Sign and date the written certification only in the course of a physician-patient relationship after the physician has completed a full assessment of the qualifying patient's medical history.

§ 36-2801.01 Addition of debilitating medical conditions

(Caution: 1998 Prop. 105 applies)

The public may petition the department to add debilitating medical conditions or treatments to the list of debilitating medical conditions set forth in section 36-2801, paragraph 3. The department shall consider petitions in the manner required by department rule, including public notice and hearing. The department shall approve or deny a petition within one-hundred-eighty days of its submission. The approval or denial of a petition is a final decision of the department subject to judicial review pursuant to title 12, chapter 7, article 6. Jurisdiction and venue are vested in the superior court.

§ 36-2802 Arizona Medical Marijuana Act; limitations

(Caution: 1998 Prop. 105 applies)

This chapter does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal or other penalties for engaging in, the following conduct:

A. Undertaking any task under the influence of marijuana that would constitute negligence or professional malpractice.

B. Possessing or engaging in the medical use of marijuana:

1. On a school bus.

2. On the grounds of any preschool or primary or secondary school.

3. In any correctional facility.

C. Smoking marijuana:

1. On any form of public transportation.

2. In any public place.

D. Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.

E. Using marijuana except as authorized under this chapter.

§ 36-2803 Rulemaking; notice; testing of marijuana and marijuana products; fees

(Caution: 1998 Prop. 105 applies)

A. The department shall adopt rules:

1. Governing the manner in which the department considers petitions from the public to add debilitating medical conditions or treatments to the list of debilitating medical conditions set forth in section 36-2801, paragraph 3, including public notice of, and an opportunity to comment in a public hearing on, petitions.

2. Establishing the form and content of registration and renewal applications submitted under this chapter.

3. Governing the manner in which the department considers applications for and renewals of registry identification cards.

4. Governing nonprofit medical marijuana dispensaries to protect against diversion and theft without imposing an undue burden on nonprofit medical marijuana dispensaries or compromising the confidentiality of cardholders, including:

(a) The manner in which the department considers applications for and renewals of registration certificates.

(b) Minimum oversight requirements for nonprofit medical marijuana dispensaries.

(c) Minimum recordkeeping requirements for nonprofit medical marijuana dispensaries.

(d) Minimum security requirements for nonprofit medical marijuana dispensaries, including requirements to protect each registered nonprofit medical marijuana dispensary location by a fully operational security alarm system.

(e) Procedures for suspending or revoking the registration certificate of nonprofit medical marijuana dispensaries that violate this chapter or the rules adopted pursuant to this section.

5. Establishing application and renewal fees for registry identification cards, nonprofit medical marijuana dispensary registration certificates and independent third-party laboratory certificates, according to the following:

(a) The total amount of all fees shall generate revenues that are sufficient to implement and administer this chapter, except that fee revenue may be offset or supplemented by private donations.

(b) Nonprofit medical marijuana dispensary application fees may not exceed $5,000.

(c) Nonprofit medical marijuana dispensary renewal fees may not exceed $1,000.

(d) The total amount of revenue generated from nonprofit medical marijuana dispensary application and renewal fees, registry identification card fees for nonprofit medical marijuana dispensary agents and independent third-party laboratory agents and application and renewal fees for independent third-party laboratories shall be sufficient to implement and administer this chapter, including the verification system, except that the fee revenue may be offset or supplemented by private donations.

(e) The department may establish a sliding scale of patient application and renewal fees that are based on a qualifying patient's household income and that are reasonable and related to the actual costs of processing applications and renewals.

(f) The department may consider private donations under section 36-2817 to reduce application and renewal fees.

B. The department of health services shall adopt rules that require each nonprofit medical marijuana dispensary to display in a conspicuous location a sign that warns pregnant women about the potential dangers to fetuses caused by smoking or ingesting marijuana while pregnant or to infants while breastfeeding and the risk of being reported to the department of child safety during pregnancy or at the birth of the child by persons who are required to report. The rules shall include the specific warning language that must be included on the sign. The cost and display of the sign required by rule shall be borne by the nonprofit medical marijuana dispensary. The rules shall also require each certifying physician to attest that the physician has provided information to each qualifying female patient that warns about the potential dangers to fetuses caused by smoking or ingesting marijuana while pregnant or to infants while breastfeeding and the risk of being reported to the department of child safety during pregnancy or at the birth of the child by persons who are required to report.

C. The department is authorized to adopt the rules set forth in subsections A and B of this section and shall adopt those rules pursuant to title 41, chapter 6.

D. The department of health services shall post prominently on its public website a warning about the potential dangers to fetuses caused by smoking or ingesting marijuana while pregnant or to infants while breastfeeding and the risk of being reported to the department of child safety during pregnancy or at the birth of the child by persons who are required to report.

E. Before selling or dispensing marijuana or marijuana products to registered qualified patients or registered designated caregivers, nonprofit medical marijuana dispensaries shall test marijuana and marijuana products for medical use to determine unsafe levels of contamination, including unsafe levels of microbial contamination, heavy metals, pesticides, fungicides, growth regulators and residual solvents and confirm the potency of the marijuana to be dispensed. The dried flowers of the marijuana plant are not required to be tested for residual solvents. If a nonprofit medical marijuana dispensary's test results for heavy metals comply with the prescribed requirements for a period of six consecutive months, heavy metal testing for that dispensary's marijuana and marijuana products is required only on a quarterly basis.

F. Nonprofit medical marijuana dispensaries shall:

1. Provide test results to a registered qualifying patient or designated caregiver immediately on request.

2. Display in a conspicuous location a sign that notifies patients of their right to receive the certified independent third-party laboratory test results for marijuana and marijuana products for medical use.

G. The department shall adopt rules to certify and regulate independent third-party laboratories that analyze marijuana cultivated for medical use. The department shall establish certification fees for laboratories pursuant to subsection A of this section. In order to be certified as an independent third-party laboratory that is allowed to test marijuana and marijuana products for medical use pursuant to this chapter, an independent third-party laboratory:

1. Must meet requirements established by the department, including reporting and health and safety requirements.

2. May not have any direct or indirect familial or financial relationship with or interest in a nonprofit medical marijuana dispensary or related medical marijuana business entity or management company, or any direct or indirect familial or financial relationship with a designated caregiver for whom the laboratory is testing marijuana and marijuana products for medical use in this state.

3. Must have a quality assurance program and standards.

4. Must have an adequate chain of custody and sample requirement policies.

5. Must have an adequate records retention process to preserve records.

6. Must establish procedures to ensure that results are accurate, precise and scientifically valid before reporting the results.

7. Must be accredited by a national or international accreditation association or other similar accrediting entity, as determined by the department.

8. Must establish policies and procedures for disposal and reverse distribution of samples that are collected by the laboratory.

H. Through December 31, 2022, the department may conduct proficiency testing and remediate problems with independent third-party laboratories that are certified and regulated pursuant to this chapter and marijuana testing facilities that are licensed and regulated pursuant to chapter 28.2 of this title.

I. Beginning January 1, 2023, the department shall conduct proficiency testing and remediate problems with independent third-party laboratories that are certified and regulated pursuant to this chapter and marijuana testing facilities that are licensed and regulated pursuant to chapter 28.2 of this title. The department may contract for proficiency testing with laboratories that have a national or international accreditation.

J. For the purposes of subsections H and I of this section, remediation may include assessing civil penalties and suspending or revoking a laboratory's certification or a marijuana testing facility's license.

K. The department shall adopt rules that prescribe reasonable time frames for testing marijuana and marijuana products.

§ 36-2803.01 New dispensary registration certificates; issuance; priority; requirements; definition

(Added with a 1998 Prop. 105 clause pursuant to L19, Ch. 318)

A. Beginning on April 1, 2020, the department shall issue all new nonprofit medical marijuana dispensary registration certificates in the following order of priority based on the dispensary's geographic area as described in the registration certificate application:

1. The geographic area had a registered nonprofit medical marijuana dispensary move from the geographic area and the geographic area is at least twenty-five miles from another dispensary that has been issued a dispensary registration certificate.

2. The geographic area is at least twenty-five miles from another dispensary that has been issued a dispensary registration certificate.

3. According to rule, if there are no dispensary registration certificate applications as described in paragraph 1 or 2 of this subsection.

B. If the department receives multiple applications as described in subsection A, paragraph 1 of this section from previously approved nonprofit medical marijuana dispensary locations, the department shall approve the certificate for the application that serves the most qualifying patients within five miles of the proposed dispensary location. If the department receives multiple applications as described in subsection A, paragraph 2 of this section or if there are no applications from previously approved dispensary locations, the department may issue the registration certificate by random drawing.

C. A nonprofit medical marijuana dispensary that receives a registration certificate pursuant to subsection A, paragraph 1 or 2 of this section on or after April 1, 2020 must open the dispensary at the approved location within eighteen months after the application is approved or the registration certificate becomes invalid.

D. A nonprofit medical marijuana dispensary that is issued a registration certificate pursuant to subsection A, paragraph 1 or 2 of this section may relocate only as follows:

1. If the dispensary is located within a city or town, only within that city or town.

2. If the dispensary is located within an unincorporated area, only within the unincorporated area of the county where the dispensary is located but not within twenty-five miles from another dispensary that has been issued a dispensary registration certificate.

E. For the purposes of this section, "geographic area" means a city, town or unincorporated area of a county.

§ 36-2803.02 Warning labels; requirements; definitions

(Added with a 1998 Prop. 105 clause pursuant to L21, Ch. 398)

A. The department shall develop a warning label that includes a statement that marijuana use may affect the health of a pregnant woman and the unborn child. The department shall require the label to be affixed to the packaging of any medical marijuana that is dispensed by a registered nonprofit medical marijuana dispensary to a qualified patient or a designated caregiver and any marijuana or marijuana product that is sold by a marijuana establishment pursuant to chapter 28.2 of this title.

B. For the purposes of this section, "marijuana", "marijuana establishment" and "marijuana products" have the same meanings prescribed in section 36-2850.

§ 36-2804 Registration and certification of nonprofit medical marijuana dispensaries

(Caution: 1998 Prop. 105 applies)

A. Nonprofit medical marijuana dispensaries shall register with the department.

B. Not later than ninety days after receiving an application for a nonprofit medical marijuana dispensary, the department shall register the nonprofit medical marijuana dispensary and issue a registration certificate and a random twenty-digit alphanumeric identification number if:

1. The prospective nonprofit medical marijuana dispensary has submitted the following:

(a) The application fee.

(b) An application, including:

(i) The legal name of the nonprofit medical marijuana dispensary.

(ii) The physical address of the nonprofit medical marijuana dispensary and the physical address of one additional location, if any, where marijuana will be cultivated, neither of which may be within five hundred feet of a public or private school, a child care facility or a facility that provides preschool programs existing before the date of the nonprofit medical marijuana dispensary application.

(iii) The name, address and date of birth of each principal officer and board member of the nonprofit medical marijuana dispensary.

(iv) The name, address and date of birth of each nonprofit medical marijuana dispensary agent.

(c) Operating procedures consistent with department rules for oversight of the nonprofit medical marijuana dispensary, including procedures to ensure accurate recordkeeping and adequate security measures.

(d) If the city, town or county in which the nonprofit medical marijuana dispensary would be located has enacted zoning restrictions, a sworn statement certifying that the registered nonprofit medical marijuana dispensary is in compliance with the restrictions.

2. None of the principal officers or board members has been convicted of an excluded felony offense.

3. None of the principal officers or board members has served as a principal officer or board member for a registered nonprofit medical marijuana dispensary that has had its registration certificate revoked.

4. None of the principal officers or board members is under twenty-one years of age.

C. The department may not issue more than one nonprofit medical marijuana dispensary registration certificate for every ten pharmacies that have registered under section 32-1929, have obtained a pharmacy permit from the Arizona state board of pharmacy and operate within the state, except that the department may issue nonprofit medical marijuana dispensary registration certificates in excess of this limit if necessary to ensure that the department issues at least one nonprofit medical marijuana dispensary registration certificate in each county in which an application has been approved.

D. The department may conduct a criminal records check in order to carry out this section.

§ 36-2804.01 Registration; nonprofit medical marijuana dispensary agents; independent third-party laboratory agents; requirements

(Caution: 1998 Prop. 105 applies)

A. A nonprofit medical marijuana dispensary agent or an independent third-party laboratory agent shall be registered with the department before volunteering or working at a nonprofit medical marijuana dispensary or a certified independent third-party laboratory.

B. A nonprofit medical marijuana dispensary or a certified independent third-party laboratory may apply to the department for a registry identification card for a nonprofit medical marijuana dispensary agent or an independent third-party laboratory agent by submitting:

1. The name, address and date of birth of the prospective nonprofit medical marijuana dispensary agent or independent third-party laboratory agent.

2. A nonprofit medical marijuana dispensary agent or independent third-party laboratory agent application.

3. A statement signed by either:

(a) The prospective nonprofit medical marijuana dispensary agent pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter.

(b) The prospective independent third-party laboratory agent acknowledging that registered independent third-party laboratory agents are prohibited from diverting marijuana pursuant to this chapter.

4. The application fee.

C. A registered nonprofit medical marijuana dispensary or certified independent third-party laboratory shall notify the department within ten days after a nonprofit medical marijuana dispensary agent or independent third-party laboratory agent ceases to be employed by or volunteer at the registered nonprofit medical marijuana dispensary or certified independent third-party laboratory.

D. A person who has been convicted of an excluded felony offense may not be a nonprofit medical marijuana dispensary agent or an independent third-party laboratory agent. Notwithstanding any other provision of this chapter, if a prospective nonprofit medical marijuana dispensary agent or independent third-party laboratory agent holds a current level I fingerprint clearance card, the person is deemed to not have been convicted of an excluded felony offense.

E. The department may conduct a criminal records check in order to carry out this section.

F. Notwithstanding any other provision of this chapter, if a marijuana facility agent as defined in section 36-2850 is registered with the department pursuant to section 36-2855, the person may act in the capacity of a nonprofit medical marijuana dispensary agent without registering pursuant to this chapter.

§ 36-2804.02 Registration of qualifying patients and designated caregivers

(Caution: 1998 Prop. 105 applies)

A. A qualifying patient may apply to the department for a registry identification card by submitting:

1. Written certification issued by a physician within the ninety days immediately preceding the date of application.

2. The application fee.

3. An application, including:

(a) Name, mailing address, residence address and date of birth of the qualifying patient except that if the applicant is homeless no address is required.

(b) Name, address and telephone number of the qualifying patient's physician.

(c) Name, address and date of birth of the qualifying patient's designated caregiver, if any.

(d) A statement signed by the qualifying patient pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter.

(e) A signed statement from the designated caregiver, if any, agreeing to be the patient's designated caregiver and pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter.

(f) A designation as to who will be allowed to cultivate marijuana plants for the qualifying patient's medical use if a registered nonprofit medical marijuana dispensary is not operating within twenty-five miles of the qualifying patient's home.

B. The application for a qualifying patient's registry identification card shall ask whether the patient would like the department to notify him of any clinical studies needing human subjects for research on the medical use of marijuana. The department shall notify interested patients if it is notified of studies that will be conducted in the United States.

§ 36-2804.03 Issuance of registry identification cards

(Caution: 1998 Prop. 105 applies)

A. Except as provided in subsection B and in section 36-2804.05, the department shall:

1. Verify the information contained in an application or renewal submitted pursuant to this chapter and approve or deny an application or renewal within ten days of receiving a completed application or renewal.

2. Issue a registry identification card to a qualifying patient and his designated caregiver, if any, within five days of approving the application or renewal. A designated caregiver must have a registry identification card for each of his qualifying patients.

3. Issue each nonprofit medical marijuana dispensary agent a registry identification card and log-in information for the verification system within five days of approving the application or renewal.

B. The department may not issue a registry identification card to a qualifying patient who is under the age of eighteen unless:

1. The qualifying patient's physician has explained the potential risks and benefits of the medical use of marijuana to the custodial parent or legal guardian responsible for health care decisions for the qualifying patient.

2. A custodial parent or legal guardian responsible for health care decisions for the qualifying patient submits a written certification from two physicians.

3. The custodial parent or legal guardian with responsibility for health care decisions for the qualifying patient consents in writing to:

(a) Allow the qualifying patient's medical use of marijuana.

(b) Serve as the qualifying patient's designated caregiver.

(c) Control the acquisition of the marijuana, the dosage and the frequency of the medical use of marijuana by the qualifying patient.

C. A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth or insular possession of the United States that allows a visiting qualifying patient to possess or use marijuana for medical purposes in the jurisdiction of issuance has the same force and effect when held by a visiting qualifying patient as a registry identification card issued by the department, except that a visiting qualifying patient is not authorized to obtain marijuana from a nonprofit medical marijuana dispensary.

§ 36-2804.04 Registry identification cards

(Caution: 1998 Prop. 105 applies)

A. Registry identification cards for qualifying patients and designated caregivers shall contain all of the following:

1. The name, address and date of birth of the cardholder.

2. A statement of whether the cardholder is a qualifying patient or a designated caregiver.

3. The date of issuance and expiration date of the registry identification card.

4. A random twenty-digit alphanumeric identification number containing at least four numbers and at least four letters that is unique to the cardholder.

5. If the cardholder is a designated caregiver, the random identification number of the registered qualifying patient the designated caregiver is assisting.

6. A photograph of the cardholder.

7. A clear indication of whether the cardholder has been authorized by this chapter to cultivate marijuana plants for the qualifying patient's medical use.

8. A warning to pregnant women about the potential dangers to fetuses caused by smoking or ingesting marijuana while pregnant or to infants while breastfeeding and the risk of being reported to the department of child safety during pregnancy or at the birth of the child by persons who are required to report.

B. Registry identification cards for nonprofit medical marijuana dispensary agents shall contain the following:

1. The name, address and date of birth of the nonprofit medical marijuana dispensary agent.

2. A statement that the cardholder is a nonprofit medical marijuana dispensary agent.

3. The legal name of the registered nonprofit medical marijuana dispensary with which the nonprofit medical marijuana dispensary agent is affiliated.

4. A random twenty-digit alphanumeric identification number that is unique to the cardholder.

5. The date of issuance and expiration date of the registry identification card.

6. A photograph, if the department decides to require one.

C. If the registry identification card of either a qualifying patient or the patient's designated caregiver does not state that the cardholder is authorized to cultivate marijuana plants, the department must give written notice to the registered qualifying patient, when the qualifying patient's registry identification card is issued, of the name and address of all registered nonprofit medical marijuana dispensaries.

§ 36-2804.05 Denial of registry identification card

(Caution: 1998 Prop. 105 applies)

A. The department may deny an application or renewal of a qualifying patient's registry identification card only if the applicant:

1. Does not meet the requirements of section 36-2801, paragraph 15.

2. Does not provide the information required.

3. Previously had a registry identification card revoked for violating this chapter.

4. Provides false information.

B. The department may deny an application or renewal of a designated caregiver's registry identification card if the applicant:

1. Does not meet the requirements of section 36-2801, paragraph 5.

2. Does not provide the information required.

3. Previously had a registry identification card revoked for violating this chapter.

4. Provides false information.

C. The department may deny a registry identification card to a nonprofit medical marijuana dispensary agent if:

1. The agent applicant does not meet the requirements of section 36-2801, paragraph 13.

2. The applicant or dispensary did not provide the required information.

3. The agent applicant previously had a registry identification card revoked for violating this chapter.

4. The applicant or dispensary provides false information.

D. The department may conduct a criminal records check of each designated caregiver or nonprofit medical marijuana dispensary agent applicant to carry out this section.

E. The department shall notify the registered nonprofit medical marijuana dispensary in writing of the reason for denying a registry identification card to a nonprofit medical marijuana dispensary agent.

F. The department shall notify the qualifying patient in writing of the reason for denying a registry identification card to the qualifying patient's designated caregiver.

G. Denial of an application or renewal is considered a final decision of the department subject to judicial review pursuant to title 12, chapter 7, article 6. Jurisdiction and venue for judicial review are vested in the superior court.

§ 36-2804.06 Expiration and renewal of registry identification cards and registration certificates; replacement

(Caution: 1998 Prop. 105 applies)

A. All registry identification cards and registration certificates expire two years after their date of issue.

B. A registry identification card of a nonprofit medical marijuana dispensary agent shall be canceled and the agent's access to the verification system shall be deactivated on notification to the department by a registered nonprofit medical marijuana dispensary that the nonprofit medical marijuana dispensary agent is no longer employed by or no longer volunteers at the registered nonprofit medical marijuana dispensary.

C. The department shall issue a renewal nonprofit medical marijuana dispensary registration certificate or an independent third-party laboratory certificate within ten days after receipt of the prescribed renewal application and renewal fee from a registered nonprofit medical marijuana dispensary or independent third-party laboratory if the dispensary's registration certificate or the laboratory's certificate is not under suspension and has not been revoked.

D. If a cardholder loses a registry identification card, the cardholder shall promptly notify the department. Within five days after the notification and on payment of a $10 fee, the department shall issue a new registry identification card with a new random identification number to the cardholder and, if the cardholder is a registered qualifying patient, to the registered qualifying patient's registered designated caregiver, if any.

E. On or before December 1, 2019, the department shall implement an electronic registry card program for registry identification cards, registration certificates, certificates and renewals. The electronic license program shall allow for the electronic verification and delivery of registry identification cards, registration certificates, certificates and renewals.

§ 36-2804.07 Independent third-party laboratories; certification; inspection

(Added with a 1998 Prop. 105 clause pursuant to L19, Ch. 318)

A. Independent third-party laboratories shall be certified by the department.

B. After receiving an application for an independent third-party laboratory, the department shall certify the independent third-party laboratory and issue a certificate and a random twenty-digit alphanumeric identification number if:

1. The prospective independent third-party laboratory has submitted all of the following:

(a) The application fee.

(b) An application, that includes:

(i) The legal name of the independent third-party laboratory.

(ii) The physical address of the independent third-party laboratory, which may not be within five hundred feet of a public or private school existing before the date of the independent third-party laboratory's application.

(iii) The name, address and date of birth of the owner of the independent third-party laboratory.

(iv) The name, address and date of birth of each independent third-party laboratory agent.

(c) Policies and procedures consistent with department rules and the requirements of section 36-2803.

(d) If the city, town or county in which the independent third-party laboratory would be located has enacted zoning restrictions, a sworn statement certifying that the independent third-party laboratory is in compliance with the restrictions.

2. The independent third-party laboratory's owner and agents have not been convicted of an excluded felony offense.

3. The independent third-party laboratory's owner and agents are at least twenty-one years of age.

C. Certified independent third-party laboratories are subject to reasonable inspection by the department.

D. The department may conduct a criminal records check in order to carry out this section.

§ 36-2805 Facility restrictions

(Caution: 1998 Prop. 105 applies)

A. Any nursing care institution, hospice, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility or adult foster care home licensed under title 36, chapter 4, may adopt reasonable restrictions on the use of marijuana by their residents or persons receiving inpatient services, including:

1. That the facility will not store or maintain the patient's supply of marijuana.

2. That the facility, caregivers or hospice agencies serving the facility's residents are not responsible for providing the marijuana for qualifying patients.

3. That marijuana be consumed by a method other than smoking.

4. That marijuana be consumed only in a place specified by the facility.

B. Nothing in this section requires a facility listed in subsection A to adopt restrictions on the medical use of marijuana.

C. A facility listed in subsection A may not unreasonably limit a registered qualifying patient's access to or use of marijuana authorized under this chapter unless failing to do so would cause facility to lose a monetary or licensing-related benefit under federal law or regulations.

§ 36-2806 Registered nonprofit medical marijuana dispensaries; requirements; rules; inspections; testing

(Caution: 1998 Prop. 105 applies)

A. A registered nonprofit medical marijuana dispensary shall be operated on a not-for-profit basis. The bylaws of a registered nonprofit medical marijuana dispensary shall contain such provisions relative to the disposition of revenues and receipts to establish and maintain its nonprofit character. A registered nonprofit medical marijuana dispensary need not be recognized as tax-exempt by the internal revenue service and is not required to incorporate pursuant to title 10, chapter 19, article 1.

B. The operating documents of a registered nonprofit medical marijuana dispensary shall include procedures to oversee the registered nonprofit medical marijuana dispensary and procedures to ensure accurate recordkeeping.

C. A registered nonprofit medical marijuana dispensary shall implement appropriate security measures to deter and prevent the theft of marijuana and unauthorized entrance into areas containing marijuana.

D. A registered nonprofit medical marijuana dispensary is prohibited from acquiring, possessing, cultivating, manufacturing, delivering, transferring, transporting, supplying or dispensing marijuana for any purpose except to assist registered qualifying patients with the medical use of marijuana directly or through the registered qualifying patients' designated caregivers or an independent third-party laboratory agent or a certified independent third-party laboratory for the purposes prescribed in this chapter and department rule.

E. All cultivation of marijuana must take place in an enclosed, locked facility, at a physical address provided to the department during the registration process, that can be accessed only by registered nonprofit medical marijuana dispensary agents associated in the registry with the nonprofit medical marijuana dispensary.

F. A registered nonprofit medical marijuana dispensary may acquire usable marijuana or marijuana plants from a registered qualifying patient or a registered designated caregiver only if the registered qualifying patient or registered designated caregiver receives no compensation for the marijuana.

G. A nonprofit medical marijuana dispensary shall not allow any person to consume marijuana on the property of the nonprofit medical marijuana dispensary.

H. Registered nonprofit medical marijuana dispensaries are subject to reasonable inspection by the department. The department may visit and inspect a nonprofit medical marijuana dispensary at any time during regular hours of operation as necessary to determine whether the dispensary complies with this chapter and the rules adopted pursuant to this chapter. The department shall make at least one unannounced visit annually to each nonprofit medical marijuana dispensary that is registered pursuant to this chapter.

I. Registered nonprofit medical marijuana dispensaries are subject to product testing by certified independent third-party laboratories pursuant to this chapter and rules adopted pursuant to this chapter.

J. Notwithstanding title 13, chapter 34, an employee of the department or an independent third-party laboratory agent may not be charged with or prosecuted for possession of marijuana that is cultivated for medical use as required by this chapter and the rules adopted pursuant to this chapter.

§ 36-2806.01 Dispensary locations

(Caution: 1998 Prop. 105 applies)

Cities, towns and counties may enact reasonable zoning regulations that limit the use of land for registered nonprofit medical marijuana dispensaries to specified areas in the manner provided in title 9, chapter 4, article 6.1, and title 11, chapter 6, article 2.

§ 36-2806.02 Dispensing marijuana for medical use

(Caution: 1998 Prop. 105 applies)

A. Before marijuana may be dispensed to a registered designated caregiver or a registered qualifying patient, a nonprofit medical marijuana dispensary agent must access the verification system and determine for the registered qualifying patient for whom the marijuana is intended and any registered designated caregiver transporting the marijuana to the patient, that:

1. The registry identification card presented to the registered nonprofit medical marijuana dispensary is valid.

2. Each person presenting a registry identification card is the person identified on the registry identification card presented to the nonprofit medical marijuana dispensary agent.

3. The amount to be dispensed would not cause the registered qualifying patient to exceed the limit on obtaining no more than two-and-one-half ounces of marijuana during any fourteen-day period.

B. After making the determinations required in subsection A, but before dispensing marijuana to a registered qualifying patient or a registered designated caregiver on a registered qualifying patient's behalf, a nonprofit medical marijuana dispensary agent must enter the following information in the verification system:

1. How much marijuana is being dispensed to the registered qualifying patient.

2. Whether it was dispensed directly to the registered qualifying patient or to the registered qualifying patient's registered designated caregiver.

3. The date and time the marijuana was dispensed.

4. The registry identification card number of the nonprofit medical marijuana dispensary and of the nonprofit medical marijuana dispensary agent who dispensed the marijuana.

§ 36-2807 Verification system

(Caution: 1998 Prop. 105 applies)

A. Within one hundred twenty days of the effective date of this chapter, the department shall establish a secure, password-protected, web-based verification system for use on a twenty-four hour basis by law enforcement personnel, nonprofit medical marijuana dispensary agents and employers to verify registry identification cards. An employer may use the verification system only to verify a registry identification card that is provided to the employer by a current employee or by an applicant who has received a conditional offer of employment.

B. The verification system must allow law enforcement personnel and nonprofit medical marijuana dispensary agents to enter a registry identification number and verify whether the number corresponds with a current, valid identification card.

C. The system shall disclose:

1. The name of the cardholder, but must not disclose the cardholder's address.

2. The amount of marijuana that each registered qualifying patient received from nonprofit medical marijuana dispensaries during the past sixty days.

D. The verification system must include the following data security features:

1. Any time an authorized user enters five invalid registry identification numbers within five minutes, that user cannot log in to the system again for ten minutes.

2. A users log-in information shall be deactivated after five incorrect login attempts until the authorized user contacts the department and verifies the user's identity.

3. The server must reject any log-in request that is not over an encrypted connection.

§ 36-2808 Notifications to department; civil penalty

(Caution: 1998 Prop. 105 applies)

A. A registered qualifying patient shall notify the department within ten days of any change in the registered qualifying patient's name, address, designated caregiver or preference regarding who may cultivate marijuana for the registered qualifying patient or if the registered qualifying patient ceases to have his debilitating medical condition.

B. A registered designated caregiver or nonprofit medical marijuana dispensary agent shall notify the department within ten days of any change in his name or address.

C. When a cardholder notifies the department of any changes listed in subsection A but remains eligible under this chapter, the department shall issue the cardholder a new registry identification card with new random 20-digit alphanumeric identification numbers within ten days of receiving the updated information and a ten-dollar fee. If the person notifying the department is a registered qualifying patient, the department shall also issue his registered designated caregiver, if any, a new registry identification card within ten days of receiving the updated information.

D. If the registered qualifying patient's certifying physician notifies the department in writing that either the registered qualifying patient has ceased to suffer from a debilitating medical condition or that the physician no longer believes the patient would receive therapeutic or palliative benefit from the medical use of marijuana, the card is void upon notification by the department to the qualifying patient.

E. When a registered qualifying patient ceases to be a registered qualifying patient or changes registered designated caregiver, the department shall promptly notify the former designated caregiver that his duties and rights under this chapter as to that qualifying patient expire fifteen days after notification by the department is sent.

F. A registered qualifying patient, designated caregiver or nonprofit medical marijuana dispensary agent who fails to comply with subsection A or B is subject to a civil penalty of not more than one hundred fifty dollars.

§ 36-2809 Annual report

(Caution: 1998 Prop. 105 applies)

The department shall submit to the legislature an annual report that does not disclose any identifying information about cardholders, nonprofit medical marijuana dispensaries or physicians but contains at least all of the following information:

1. The number of registry identification card applications and renewals.

2. The number of qualifying patients and designated caregivers approved in each county.

3. The nature of the debilitating medical conditions of the qualifying patients.

4. The number of registry identification cards revoked.

5. The number of physicians providing written certifications for qualifying patients.

6. The number of registered nonprofit medical marijuana dispensaries.

7. The number of nonprofit medical marijuana dispensary agents in each county.

§ 36-2810 Confidentiality

(Caution: 1998 Prop. 105 applies)

A. The following information received and records kept by the department for purposes of administering this chapter are confidential, exempt from title 39, chapter 1, article 2, exempt from section 36-105 and not subject to disclosure to any individual or public or private entity, except as necessary for authorized employees of the department to perform official duties of the department pursuant to this chapter:

1. Applications or renewals, their contents and supporting information submitted by qualifying patients and designated caregivers, including information regarding their designated caregivers and physicians.

2. Applications or renewals, their contents and supporting information submitted by or on behalf of nonprofit medical marijuana dispensaries in compliance with this chapter, including the physical addresses of nonprofit medical marijuana dispensaries.

3. The individual names and other information identifying persons to whom the department has issued registry identification cards.

B. Any dispensing information required to be kept under section 36-2806.02, subsection B or department regulation shall identify cardholders by their registry identification numbers and not contain names or other personally identifying information.

C. Any department hard drives or other data recording media that are no longer in use and that contain cardholder information must be destroyed. The department shall retain a signed statement from a department employee confirming the destruction.

D. Except for public health research, data subject to this section shall not be combined or linked in any manner with any other list or database and shall not be used for any purpose not provided for in this chapter.

E. This section does not preclude the following notifications:

1. Department employees may notify law enforcement about falsified or fraudulent information submitted to the department if the employee who suspects that falsified or fraudulent information has been submitted has conferred with the employee's supervisor and both agree that the circumstances warrant reporting.

2. The department may notify state or local law enforcement about apparent criminal violations of this chapter if the employee who suspects the offense has conferred with the employee's supervisor and both agree that the circumstances warrant reporting.

3. Nonprofit medical marijuana dispensary agents may notify the department of a suspected violation or attempted violation of this chapter or department rules.

4. The department may notify the Arizona medical board, the Arizona board of osteopathic examiners in medicine and surgery, the naturopathic physicians medical board and the board of homeopathic and integrated medicine examiners if the department believes a physician has committed an act of unprofessional conduct as prescribed by the appropriate board's statutes because of the licensee's failure to comply with the requirements of this chapter or rules adopted pursuant to this chapter.

F. This section does not preclude submission of the section 36-2809 report to the legislature. The annual report submitted to the legislature is subject to title 39, chapter 1, article 2.

§ 36-2811 Presumption of medical use of marijuana; protections; civil penalty

(Caution: 1998 Prop. 105 applies)

A. There is a presumption that a qualifying patient or designated caregiver is engaged in the medical use of marijuana pursuant to this chapter.

1. The presumption exists if the qualifying patient or designated caregiver:

(a) Is in possession of a registry identification card.

(b) Is in possession of an amount of marijuana that does not exceed the allowable amount of marijuana.

2. The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of treating or alleviating the qualifying patient's debilitating medical condition or symptoms associated with the qualifying patient's debilitating medical condition pursuant to this chapter.

B. A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau:

1. For the registered qualifying patient's medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than the allowable amount of marijuana.

2. For the registered designated caregiver assisting a registered qualifying patient to whom he is connected through the department's registration process with the registered qualifying patient's medical use of marijuana pursuant to this chapter if the registered designated caregiver does not possess more than the allowable amount of marijuana.

3. For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient's medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.

C. A physician shall not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Arizona board of medical examiners or by any other business, occupational or professional licensing board or bureau, based solely on providing written certifications or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition, but nothing in this chapter prevents a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

D. No person may be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau, for:

1. Providing a registered qualifying patient, a registered designated caregiver or a registered nonprofit medical marijuana dispensary with marijuana paraphernalia for purposes of a qualifying patient's medical use of marijuana.

2. Being in the presence or vicinity of the medical use of marijuana authorized under this chapter.

3. Assisting a registered qualifying patient with administering marijuana as authorized by this chapter.

E. A registered nonprofit medical marijuana dispensary is not subject to prosecution; search or inspection, except by the department pursuant to section 36-2806, subsection H; seizure or penalty in any manner and may not be denied any right or privilege, including civil penalty or disciplinary action by a court or business licensing board or entity, for acting pursuant to this chapter and department regulations to acquire, possess, cultivate, manufacture, deliver, transfer, transport, supply, sell or dispense marijuana or related supplies and educational materials to registered qualifying patients, to registered designated caregivers on behalf of registered qualifying patients or to other registered nonprofit medical marijuana dispensaries.

F. A registered nonprofit medical marijuana dispensary agent is not subject to arrest, prosecution, search, seizure or penalty in any manner and may not be denied any right or privilege, including civil penalty or disciplinary action by a court or occupational or professional licensing board or entity, for working or volunteering for a registered nonprofit medical marijuana dispensary pursuant to this chapter and department regulations to acquire, possess, cultivate, manufacture, deliver, transfer, transport, supply, sell or dispense marijuana or related supplies and educational materials to registered qualifying patients, to registered designated caregivers on behalf of registered qualifying patients or to other registered nonprofit medical marijuana dispensaries.

G. Property, including all interests in the property, otherwise subject to forfeiture under title 13, chapter 39, that is possessed, owned or used in connection with the medical use of marijuana authorized under this chapter or acts incidental to the medical use of marijuana authorized under this chapter, is not subject to seizure or forfeiture. This subsection does not prevent civil forfeiture if the basis for the forfeiture is unrelated to the medical use of marijuana.

H. Mere possession of, or application for, a registry identification card may not constitute probable cause or reasonable suspicion, nor may it be used to support the search of the person or property of the person possessing or applying for the registry identification card. The possession of, or application for, a registry identification card does not preclude the existence of probable cause if probable cause exists on other grounds.

I. No school, landlord or employer may be penalized or denied any benefit under state law for enrolling, leasing to or employing a registered qualifying patient or a registered designated caregiver.

§ 36-2812 Marijuana research; grants; posting

(Added with a 1998 Prop. 105 clause pursuant to L21, Ch. 398)

A. The department shall provide grants from monies in the medical marijuana fund established by section 36-2817 for research on the correlation between marijuana use and mental illness, including psychosis, and violent behavior.

B. The department shall post on its public website all research conducted pursuant to the grants provided under this section.

§ 36-2813 Discrimination prohibited

(Caution: 1998 Prop. 105 applies)

A. No school or landlord may refuse to enroll or lease to and may not otherwise penalize a person solely for his status as a cardholder, unless failing to do so would cause the school or landlord to lose a monetary or licensing related benefit under federal law or regulations.

B. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person's status as a cardholder.

2. A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

C. For the purposes of medical care, including organ transplants, a registered qualifying patient's authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care.

D. No person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter, unless the person's behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidence.

§ 36-2814 Acts not required; acts not prohibited

(Caution: 1998 Prop. 105 applies)

A. Nothing in this chapter requires:

1. A government medical assistance program, a private health insurer or a workers' compensation carrier or self-insured employer providing workers' compensation benefits to reimburse a person for costs associated with the medical use of marijuana.

2. Any person or establishment in lawful possession of property to allow a guest, client, customer or other visitor to use marijuana on or in that property.

3. An employer to allow the ingestion of marijuana in any workplace or any employee to work while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.

B. Nothing in this chapter prohibits an employer from disciplining an employee for ingesting marijuana in the workplace or working while under the influence of marijuana.

§ 36-2815 Revocation

(Caution: 1998 Prop. 105 applies)

A. The department shall immediately revoke the registry identification card of a nonprofit medical marijuana dispensary agent who violates section 36-2804.01, subsection D, or section 36-2816, subsection B. The department shall suspend or revoke the registry identification card of a nonprofit medical marijuana dispensary agent for other violations of this chapter.

B. The department shall immediately revoke the registration certificate of a registered nonprofit medical marijuana dispensary that violates section 2816, subsections B or C, and its board members and principal officers may not serve as the board members or principal officers for any other registered nonprofit medical marijuana dispensary.

C. Any cardholder who sells marijuana to a person who is not allowed to possess marijuana for medical purposes under this chapter shall have his registry identification card revoked, and shall be subject to other penalties for the unauthorized sale of marijuana and other applicable offenses.

D. The department may revoke the registry identification card of any cardholder who knowingly violates this chapter, and the cardholder shall be subject to other penalties for the applicable offense.

E. Revocation is a final decision of the department subject to judicial review pursuant to title 12, chapter 7, article 6. Jurisdiction and venue are vested in the superior court.

§ 36-2816 Violations; classification; civil penalties

(Caution: 1998 Prop. 105 applies)

A. A registered qualifying patient may not directly, or through the patient's designated caregiver, obtain more than two and one-half ounces of marijuana from registered nonprofit medical marijuana dispensaries in any fourteen-day period.

B. A registered nonprofit medical marijuana dispensary or agent may not dispense, deliver or otherwise transfer marijuana to a person other than:

1. Another registered nonprofit medical marijuana dispensary.

2. A registered qualifying patient.

3. A registered qualifying patient's registered designated caregiver.

4. A certified independent third-party laboratory or a registered independent third-party laboratory agent for purposes prescribed in sections 36-2803 and 36-2806 and department rule.

C. A registered nonprofit medical marijuana dispensary may not acquire usable marijuana or mature marijuana plants from any person other than another registered nonprofit medical marijuana dispensary, a registered qualifying patient or a registered designated caregiver. A knowing violation of this subsection is a class 2 felony.

D. It is a class 1 misdemeanor for any person, including an employee or official of the department or another state agency or local government, to breach the confidentiality of information obtained pursuant to this chapter.

E. Making false statements to a law enforcement official about any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution is subject to a civil penalty of not more than $500, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marijuana other than use undertaken pursuant to this chapter.

F. Subject to title 41, chapter 6, article 10, the director may deny, suspend or revoke, in whole or in part, any registration issued under this chapter if the registered party or an officer, agent or employee of the registered party is not in substantial compliance with the provisions of this chapter or any rule adopted pursuant to this chapter or if the nature or number of violations revealed by any type of inspection or investigation constitutes a threat, or direct risk, to the life, health or safety of a qualifying patient or the public.

G. In addition to any other penalties authorized by this chapter, the director may assess a civil penalty for violations of this chapter or any rule adopted pursuant to this chapter in an amount not to exceed $2,000 for each violation. Each day a violation occurs constitutes a separate violation.

H. The director shall issue a notice of assessment that includes the proposed amount of the assessment. In determining the amount of a civil penalty assessed against a person under subsection G of this section, the department shall consider all of the following:

1. Repeated violations of this chapter or the rules adopted pursuant to this chapter.

2. Patterns of noncompliance.

3. The types of violations.

4. The severity of the violations.

5. The potential for and occurrences of actual harm.

6. Threats to health and safety.

7. The number of violations.

8. The number of persons affected by the violations.

9. The length of time the violations have been occurring.

§ 36-2817 Medical marijuana fund; private donations; fund transfers; use of monies

(Caution: 1998 Prop. 105 applies)

A. The medical marijuana fund is established consisting of fees collected, civil penalties imposed and private donations received under this chapter. The department shall administer the fund. Monies in the fund are continuously appropriated.

B. The director of the department may accept and spend private grants, gifts, donations, contributions and devises to assist in carrying out this chapter.

C. Monies in the medical marijuana fund may be used to provide grants for marijuana clinical trials conducted pursuant to section 36-2822.

D. Monies in the medical marijuana fund do not revert to the state general fund at the end of a fiscal year.

E. On November 30, 2020, the director of the department shall transfer the following sums from the medical marijuana fund for the following purposes:

1. $15,000,000 to the Arizona teachers academy fund established by section 15-1655.

2. $10,000,000 to the department to fund the formation and operation of councils, commissions and programs dedicated to improving public health, including teen suicide prevention, the maternal mortality review program, improving youth health, substance abuse prevention, addressing adverse childhood experiences, the Arizona poison control system established pursuant to section 36-1161, the Arizona health improvement plan, the child fatality review team established pursuant to section 36-3501 and the chronic pain self management program.

3. $10,000,000 to the governor's office of highway safety to distribute grants for the following purposes:

(a) Reducing impaired driving, including conducting training programs and purchasing equipment for detecting, testing and enforcing laws against driving, flying or boating while impaired.

(b) Equipment, training and personnel costs for dedicated traffic enforcement.

4. $2,000,000 to the department to implement, carry out and enforce chapter 28.2 of this title.

5. $4,000,000 to the department to distribute grants to qualified nonprofit entities that will provide outreach to individuals who may be eligible to file petitions for expungement pursuant to section 36-2862 and will assist with the expungement petition process. The department shall distribute grants pursuant to this paragraph on or before June 30, 2021.

6. $2,000,000 to the department of health services to develop and implement, in conjunction with the department of economic security and other state agencies, a social equity ownership program to promote the ownership and operation of marijuana establishments and marijuana testing facilities by individuals from communities disproportionately impacted by the enforcement of previous marijuana laws. For the purposes of this paragraph, "marijuana establishment" and "marijuana testing facility" have the same meanings prescribed in section 36-2850.

7. $1,000,000 to the department to fund programs and grants to qualified nonprofit organizations for education and community outreach related to chapter 28.2 of this title.

8. $1,000,000 to the smart and safe Arizona fund established by section 36-2856.

F. After all costs incurred to implement, carry out and enforce this chapter and the rules adopted pursuant to this chapter are paid for fiscal year 2021-2022, the department shall transfer from the medical marijuana fund the following sums for the following purposes:

1. $1,250,000 to the department for suicide prevention.

2. $1,250,000 to the Arizona health care cost containment system for suicide prevention.

3. $2,000,000 to the institute for mental health research for research to improve mental health services, research and education in this state.

4. $2,000,000 to the department for the primary care provider loan repayment program and the rural private primary care provider loan repayment program established by chapter 21 of this title. The department shall prioritize rural providers in the areas of mental health care and behavioral health care if feasible and appropriate.

5. $2,000,000 to the board of medical student loans for the purposes of title 15, chapter 13, article 7. The board shall prioritize students who intend to practice in the area of psychiatry or other areas of practice that treat mental illness if feasible and appropriate.

6. $5,000,000 to county public health departments, in proportion to the population of each county, for the purposes of addressing important public health issues and communities affected by drug addiction and incarceration.

7. $1,000,000 to the department for the health care directives registry established pursuant to section 36-3291.

G. Monies transferred pursuant to subsection F of this section do not revert to the state general fund.

H. The director shall make a onetime transfer of $250,000 from the medical marijuana fund to the department to provide grants for marijuana research studies pursuant to section 36-2812.

I. The director may use monies in the medical marijuana fund to contract with laboratories pursuant to section 36-2803, subsection I to comply with the proficiency testing requirements of this chapter for independent third-party laboratories and marijuana testing facilities. On or before July 1 of each year, the department shall report to the joint legislative budget committee expenditures made pursuant to this subsection for the preceding fiscal year.

§ 36-2818 Enforcement of this act; mandamus

(Caution: 1998 Prop. 105 applies)

A. If the department fails to adopt regulations to implement this chapter within one hundred twenty days of the effective date of this chapter, any citizen may commence a mandamus action in superior court to compel the department to perform the actions mandated under this chapter.

B. If the department fails to issue a registry identification card within forty-five days of the submission of a valid application or renewal, the registry identification card shall be deemed issued, and a copy of the registry identification card application or renewal is deemed a valid registry identification card.

C. If at any time after the one hundred forty days following the effective date of this chapter the department is not accepting applications or has not promulgated rules allowing qualifying patients to submit applications, a notarized statement by a qualifying patient containing the information required in an application pursuant to section 36-2804.02, subsection A, paragraph 3, together with a written certification issued by a physician within the ninety days immediately preceding the notarized statement, shall be deemed a valid registry identification card.

§ 36-2819 Fingerprinting requirements

(Caution: 1998 Prop. 105 applies)

Each person applying as a designated caregiver, a principal officer, agent or employee of a nonprofit medical marijuana dispensary, a nonprofit medical marijuana dispensary agent or an independent third-party laboratory agent may submit a current level I fingerprint clearance card issued pursuant to section 41-1758.07 or shall submit a full set of fingerprints to the department for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation without disclosing that the records check is related to the medical marijuana act and acts allowed by it. The department shall destroy each set of fingerprints after the criminal records check is completed.

§ 36-2820 Use of outside counsel

(Added with a 1998 Prop. 105 clause pursuant to L19, Ch. 318)

Notwithstanding section 41-192, the department may employ legal counsel and make an expenditure or incur an indebtedness for legal services to implement, advise on or defend this chapter, chapter 28.2 or the rules adopted pursuant to this chapter or chapter 28.2.

§ 36-2821 Medical marijuana testing advisory council; membership; duties; report; definitions

(Added with a 1998 Prop. 105 clause pursuant to L19, Ch. 318)

A. The director shall establish a medical marijuana testing advisory council to assist and make recommendations to the director regarding administering and implementing this chapter. The director or the director's designee shall serve as the chairperson of the advisory council and shall appoint the following additional members to the council:

1. The president or executive director of a statewide nonprofit association representing the marijuana dispensaries, or the person's designee.

2. The president or executive director of a statewide nonprofit cannabis testing association, or the person's designee.

3. The president or executive director of a medical marijuana trade association that does not primarily consist of dispensaries or cannabis laboratory testing facility owners, or the person's designee.

4. A representative of a nonprofit medical marijuana dispensary who is employed by the dispensary to cultivate medical marijuana and who has at least three years of medical marijuana cultivation experience.

5. A representative of an Arizona-based nonprofit medical marijuana dispensary that produces medical marijuana concentrates and that has been regularly sending products for testing who has at least three years of medical marijuana extraction experience.

6. A representative of an Arizona-based nonprofit medical marijuana dispensary that is primarily focused on producing medical marijuana edibles who has at least three years of medical marijuana edible production experience.

7. An owner of an Arizona-based cannabis testing laboratory.

8. A laboratory scientist who holds a doctorate or a bachelor of science degree and who has at least three years of experience in cannabis laboratory testing.

9. A registered qualifying patient.

10. A registered designated caregiver.

11. A representative of the department of public safety.

12. A licensed health care provider who specializes in treating substance use disorders and who has at least five years of experience.

13. One university faculty member from each university under the jurisdiction of the Arizona board of regents who is an academic appointment in the chemistry department or another related analytical lab testing area to function as independent subject matter experts.

14. A representative of a laboratory that conducts proficiency testing for laboratories in this state.

B. The medical marijuana testing advisory council shall make recommendations and consult with the director regarding:

1. Establishing a required testing program.

2. Testing and potency standards for medical marijuana.

3. Procedural requirements for collecting, storing and testing samples of medical marijuana.

4. Reporting results to patients and the department.

5. Remediation and disposal requirements for medical marijuana that fails to meet testing standards.

6. Additional items as necessary.

C. The advisory council shall annually review the marijuana testing programs under this chapter and chapter 28.2 of this title and, on or before the second Monday in January of each year, shall submit to the president of the senate, the speaker of the house of representatives, the health and human services committee chairpersons of the senate and the house of representatives and the department of health services a report that does not disclose any identifying information and that includes at least the following:

1. An assessment as to whether an analyte should be removed from the required statutory testing panel.

2. The number of statements of deficiencies relating to testing that were issued to each nonprofit medical marijuana dispensary, third-party independent laboratory, marijuana establishment and marijuana testing facility in the preceding year, the remediation efforts made to address each deficiency and the resolution of each statement of deficiency. The information may not disclose any identifying information but shall delineate the information by entity.

3. Any other recommendations on improving the testing programs.

D. Members of the advisory council are not eligible to receive compensation but are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

E. For the purposes of this section, "marijuana establishment" and "marijuana testing facility" have the same meanings prescribed in section 36-2850.

§ 36-2822 Arizona biomedical research centre; medical marijuana fund; grants; marijuana clinical trials; requirements; exemption

(Added with a 1998 Prop. 105 clause pursuant to L21, Ch. 419)

A. The Arizona biomedical research centre in the department shall provide competitive grants from monies in the medical marijuana fund established by section 36-2817 for marijuana clinical trials that are approved by the United States food and drug administration for evaluating both the safety and efficacy of using marijuana in humans and researching the impacts of marijuana interactions with prescription drugs, nonprescription drugs and illicit drugs.

B. Clinical trials funded pursuant to subsection A of this section shall be conducted by Arizona-based researchers from nonprofit organizations or universities, be approved by the United States food and drug administration, the United States drug enforcement administration and an institutional review board and be publishable in peer-reviewed medical and public health journals. The centre shall prioritize randomized controlled clinical trials that study the treatment of autism, epilepsy, post-traumatic stress disorder and pain.

C. Notwithstanding title 13, chapter 34, a person who receives a grant for a marijuana clinical trial pursuant to this section and any of the person's employees working on the clinical trial may not be charged with or prosecuted for possession of marijuana that is cultivated for medical use when the person is working on the clinical trial.

D. The Arizona biomedical research centre may provide up to $5,000,000 annually for five consecutive years from the medical marijuana fund established by section 36-2817 to administer and award competitive grants pursuant to this section. The centre may not use more than five percent of these monies for administrative purposes.

Chapter 28.2 Responsible Adult Use of Marijuana

§ 36-2850 Definitions

(Caution: 1998 Prop. 105 applies)

In this chapter, unless the context requires otherwise:

1. "Advertise," "advertisement" and "advertising" mean any public communication in any medium that offers or solicits a commercial transaction involving the sale, purchase or delivery of marijuana or marijuana products.

2. "Child-resistant" means designed or constructed to be significantly difficult for children under five years of age to open, and not difficult for normal adults to use properly.

3. "Consume," "consuming" and "consumption" mean the act of ingesting, inhaling or otherwise introducing marijuana into the human body.

4. "Consumer" means an individual who is at least twenty-one years of age and who purchases marijuana or marijuana products.

5. "Cultivate" and "cultivation" mean to propagate, breed, grow, prepare and package marijuana.

6. "Deliver" and "delivery" mean the transportation, transfer or provision of marijuana or marijuana products to a consumer at a location other than the designated retail location of a marijuana establishment.

7. "Department" means the department of health services or its successor agency.

8. "Designated caregiver" has the same meaning prescribed in section 36-2801.

9. "Dual licensee" means an entity that holds both a nonprofit medical marijuana dispensary registration and a marijuana establishment license.

10. "Early applicant" means either of the following:

(a) An entity seeking to operate a marijuana establishment in a county with fewer than two registered nonprofit medical marijuana dispensaries.

(b) A nonprofit medical marijuana dispensary that is registered and in good standing with the department.

11. "Employee," "employer," "health care facility," and "places of employment" have the same meanings prescribed in the smoke-free Arizona act, section 36-601.01.

12. "Excluded felony offense" has the same meaning prescribed in section 36-2801.

13. "Good standing" means that a nonprofit medical marijuana dispensary is not the subject of a pending notice of intent to revoke issued by the department.

14. "Independent third-party laboratory" has the same meaning prescribed in section 36-2801.

15. "Industrial hemp" has the same meaning prescribed in section 3-311.

16. "Licensee" means a person that obtains a license pursuant to section 36-2854.

17. "Locality" means a city, town or county.

18. "Manufacture" and "manufacturing" mean to compound, blend, extract, infuse or otherwise make or prepare a marijuana product.

19. "Marijuana":

(a) Means all parts of the plant of the genus cannabis, whether growing or not, as well as the seeds from the plant, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture or preparation of the plant or its seeds or resin.

(b) Includes cannabis as defined in 13-3401.

(c) Does not include industrial hemp, the fiber produced from the stalks of the plant of the genus cannabis, oil or cake made from the seeds of the plant, sterilized seeds of the plant that are incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink or other products.

20. "Marijuana concentrate":

(a) Means resin extracted from any part of a plant of the genus cannabis and every compound, manufacture, salt, derivative, mixture or preparation of that resin or tetrahydrocannabinol.

(b) Does not include industrial hemp or the weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink or other products.

21. "Marijuana establishment" means an entity that is licensed by the department to operate all of the following:

(a) A single retail location at which the licensee may sell marijuana and marijuana products to consumers, cultivate marijuana and manufacture marijuana products.

(b) A single off-site cultivation location at which the licensee may cultivate marijuana, process marijuana and manufacture marijuana products, but from which marijuana and marijuana products may not be transferred or sold to consumers.

(c) A single off-site location at which the licensee may manufacture marijuana products and package and store marijuana and marijuana products, but from which marijuana and marijuana products may not be transferred or sold to consumers.

22. "Marijuana facility agent" means a principal officer, board member or employee of a marijuana establishment or marijuana testing facility who is at least twenty-one years of age and who has not been convicted of an excluded felony offense.

23. "Marijuana products" means marijuana concentrate and products that are composed of marijuana and other ingredients and that are intended for use or consumption, including edible products, ointments and tinctures.

24. "Marijuana testing facility" means the department or another entity that is licensed by the department to analyze the potency of marijuana and test marijuana for harmful contaminants.

25. "Nonprofit medical marijuana dispensary" has the same meaning prescribed in section 36-2801.

26. "Nonprofit medical marijuana dispensary agent" has the same meaning prescribed in section 36-2801.

27. "Open space" means a public park, public sidewalk, public walkway or public pedestrian thoroughfare.

28. "Process" and "processing" mean to harvest, dry, cure, trim or separate parts of the marijuana plant.

29. "Public place" has the same meaning prescribed in section 36-601.01.

30. "Qualifying patient" has the same meaning prescribed in section 36-2801.

31. "Smoke" means to inhale, exhale, burn, carry or possess any lighted marijuana or lighted marijuana products, whether natural or synthetic.

§ 36-2851 Employers; driving; minors; control of property; smoking in public places and open spaces

(Caution: 1998 Prop. 105 applies)

This chapter:

1. Does not restrict the rights of employers to maintain a drug-and-alcohol-free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees.

2. Does not require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in a place of employment.

3. Does not allow driving, flying or boating while impaired to even the slightest degree by marijuana or prevent this state from enacting and imposing penalties for driving, flying or boating while impaired to even the slightest degree by marijuana.

4. Does not allow an individual who is under twenty-one years of age to purchase, possess, transport or consume marijuana or marijuana products.

5. Does not allow the sale, transfer or provision of marijuana or marijuana products to an individual who is under twenty-one years of age.

6. Does not restrict the rights of employers, schools, day care centers, adult day care facilities, health care facilities or corrections facilities to prohibit or regulate conduct otherwise allowed by this chapter when such conduct occurs on or in their properties.

7. Does not restrict the ability of an individual, partnership, limited liability company, private corporation, private entity or private organization of any character that occupies, owns or controls property to prohibit or regulate conduct otherwise allowed by this chapter on or in such property.

8. Does not allow any person to:

(a) Smoke marijuana in a public place or open space.

(b) Consume marijuana or marijuana products while driving, operating or riding in the passenger seat or compartment of an operating motor vehicle, boat, vessel, aircraft or another vehicle used for transportation.

9. Does not prohibit this state or a political subdivision of this state from prohibiting or regulating conduct otherwise allowed by this chapter when such conduct occurs on or in property that is occupied, owned, controlled or operated by this state or a political subdivision of this state.

10. Does not authorize a person to process or manufacture marijuana by means of any liquid or gas, other than alcohol, that has a flashpoint below one hundred degrees fahrenheit, unless performed by a marijuana establishment.

11. Does not require a person to violate federal law or to implement or fail to implement a restriction on the possession, consumption, display, transfer, processing, manufacturing or cultivation of marijuana if by so doing the person will lose a monetary or licensing-related benefit under federal law.

12. Does not supersede or eliminate any existing rights or privileges of any person except as specifically set forth in this chapter.

13. Does not limit any privilege or right of a nonprofit medical marijuana dispensary under chapter 28.1 of this title except as expressly set forth in this chapter.

14. Does not limit any privilege or right of a qualifying patient or designated caregiver under chapter 28.1 of this title.

§ 36-2852 Allowable possession and personal use of marijuana, marijuana products and marijuana paraphernalia

(Caution: 1998 Prop. 105 applies)

A. Except as specifically and expressly provided in sections 36-2851 and 36-2853 and notwithstanding any other law, the following acts by an individual who is at least twenty-one years of age are lawful, are not an offense under the laws of this state or any locality, may not constitute the basis for detention, search or arrest, and cannot serve as the sole basis for seizure or forfeiture of assets, for imposing penalties of any kind under the laws of this state or any locality or for abrogating or limiting any right or privilege conferred or protected by the laws of this state or any locality:

1. Possessing, consuming, purchasing, processing, manufacturing by manual or mechanical means, including sieving or ice water separation but excluding chemical extraction or chemical synthesis, or transporting one ounce or less of marijuana, except that not more than five grams of marijuana may be in the form of marijuana concentrate.

2. Possessing, transporting, cultivating or processing not more than six marijuana plants for personal use at the individual's primary residence, and possessing, processing and manufacturing by manual or mechanical means, including sieving or ice water separation but excluding chemical extraction or chemical synthesis, the marijuana produced by the plants on the premises where the marijuana plants were grown if all of the following apply:

(a) Not more than twelve plants are produced at a single residence where two or more individuals who are at least twenty-one years of age reside at one time.

(b) Cultivation takes place within a closet, room, greenhouse or other enclosed area on the grounds of the residence equipped with a lock or other security device that prevents access by minors.

(c) Cultivation takes place in an area where the marijuana plants are not visible from public view without using binoculars, aircraft or other optical aids.

3. Transferring one ounce or less of marijuana, of which not more than five grams may be in the form of marijuana concentrate, to an individual who is at least twenty-one years of age if the transfer is without remuneration and is not advertised or promoted to the public.

4. Transferring up to six marijuana plants to an individual who is at least twenty-one years of age if the transfer is without remuneration and is not advertised or promoted to the public.

5. Acquiring, possessing, manufacturing, using, purchasing, selling or transporting paraphernalia relating to the cultivation, manufacture, processing or consumption of marijuana or marijuana products.

6. Assisting another individual who is at least twenty-one years of age in any of the acts described in this subsection.

B. Notwithstanding any other law, a person with metabolites or components of marijuana in the person's body is guilty of violating section 28-1381, subsection A, paragraph 3 only if the person is also impaired to the slightest degree.

C. Notwithstanding any other law, the odor of marijuana or burnt marijuana does not by itself constitute reasonable articulable suspicion of a crime. This subsection does not apply when a law enforcement officer is investigating whether a person has violated section 28-1381.

§ 36-2853 Violations; classification; civil penalty; additional fine; enforcement

(Caution: 1998 Prop. 105 applies)

A. Notwithstanding any other law and except as otherwise provided in this chapter, a person who possesses an amount of marijuana greater than the amount allowed pursuant to section 36-2852, but not more than two and one-half ounces of marijuana, of which not more than twelve and one-half grams is in the form of marijuana concentrate, is guilty of a petty offense.

B. Notwithstanding any other law, a person who is under twenty-one years of age and who possesses, consumes, transports or transfers without remuneration one ounce or less of marijuana, of which not more than five grams is in the form of marijuana concentrate, or paraphernalia relating to the consumption of marijuana or marijuana products:

1. For a first violation, shall pay a civil penalty of not more than $100 to the smart and safe Arizona fund established by section 36-2856 and in the court's discretion may be ordered to attend up to four hours of drug education or counseling.

2. For a second violation, is guilty of a petty offense, and in the court's discretion may be ordered to attend up to eight hours of drug education or counseling.

3. For a third or subsequent violation, is guilty of a class 1 misdemeanor.

C. A person who smokes marijuana in a public place or open space is guilty of a petty offense.

D. Except as otherwise provided in chapter 28.1 of this title and notwithstanding any other law, any unlicensed person who cultivates marijuana plants pursuant to section 36-2852 where they are visible from public view without using binoculars, aircraft or other optical aids or outside of an enclosed area that is equipped with a lock or other security device that prevents access by minors is guilty of:

1. For a first violation, a petty offense.

2. For a second or subsequent violation, a class 3 misdemeanor.

E. A person who is under twenty-one years of age and who misrepresents the person's age to any other person by means of a written instrument of identification or who uses a fraudulent or false written instrument of identification with the intent to induce a person to sell or otherwise transfer marijuana or a marijuana product to the person who is under twenty-one years of age is guilty of:

1. For a first violation, a petty offense.

2. For a second or subsequent violation, a class 1 misdemeanor.

F. A person who is under twenty-one years of age and who solicits another person to purchase marijuana or a marijuana product in violation of this chapter is guilty of:

1. For a first violation, a petty offense.

2. For a second or subsequent violation, a class 3 misdemeanor.

§ 36-2854 Rules; licensing; early applicants; fees; civil penalty; legal counsel

(Caution: 1998 Prop. 105 applies)

A. The department shall adopt rules to implement and enforce this chapter and regulate marijuana, marijuana products, marijuana establishments and marijuana testing facilities. Those rules shall include requirements for:

1. Licensing marijuana establishments and marijuana testing facilities, including conducting investigations and background checks to determine eligibility for licensing for marijuana establishment and marijuana testing facility applicants, except that:

(a) An application for a marijuana establishment license or marijuana testing facility license may not require the disclosure of the identity of any person who is entitled to a share of less than ten percent of the profits of an applicant that is a publicly traded corporation.

(b) The department may not issue more than one marijuana establishment license for every ten pharmacies that have registered under section 32-1929, that have obtained a pharmacy permit from the Arizona board of pharmacy and that operate within this state.

(c) Notwithstanding subdivision (b) of this paragraph, the department may issue a marijuana establishment license to not more than two marijuana establishments per county that contains no registered nonprofit medical marijuana dispensaries, or one marijuana establishment license per county that contains one registered nonprofit medical marijuana dispensary. Any license issued pursuant to this subdivision shall be for a fixed county and may not be relocated outside of that county.

(d) The department shall accept applications for marijuana establishment licenses from early applicants beginning January 19, 2021 through March 9, 2021. Not later than sixty days after receiving an application pursuant to this subdivision, the department shall issue a marijuana establishment license to each qualified early applicant. If the department has not adopted final rules pursuant to this section at the time marijuana establishment licenses are issued pursuant to this subdivision, licensees shall comply with the rules adopted by the department to implement chapter 28.1 of this title except those that are inconsistent with this chapter.

(e) After issuing marijuana establishment licenses to qualified early applicants, the department shall issue marijuana establishment licenses available under subdivisions (b) and (c) of this paragraph by random selection and according to rules adopted pursuant to this section. At least sixty days before any random selection, the department shall prominently publicize the random selection on its website and through other means of general distribution intended to reach as many interested parties as possible and shall provide notice through an email notification system to which interested parties can subscribe.

(f) Notwithstanding subdivisions (b) and (c) of this paragraph, and not later than six months after the department adopts final rules to implement a social equity ownership program pursuant to paragraph 9 of this subsection, the department shall issue twenty-six additional marijuana establishment licenses to entities that are qualified pursuant to the social equity ownership program.

(g) Licenses issued by the department to marijuana establishments and marijuana testing facilities shall be valid for a period of two years. A dual licensee's initial renewal date, which will be the ongoing renewal date for both the dual licensee's marijuana establishment license and nonprofit medical marijuana dispensary registration, is the earlier of:

(i) The date of the marijuana establishment license renewal.

(ii) The date of the nonprofit medical marijuana dispensary registration renewal.

(h) The department may not issue a marijuana establishment or marijuana testing facility license to an applicant who has an ownership interest in an out-of-state marijuana establishment or marijuana testing facility, or the other state's equivalent, that has had its license revoked by the other state.

2. Licensing fees and renewal fees for marijuana establishments and marijuana testing facilities in amounts that are reasonable and related to the actual cost of processing applications for licenses and renewals and that do not exceed five times the fees prescribed by the department to register or renew a nonprofit medical marijuana dispensary.

3. The security of marijuana establishments and marijuana testing facilities.

4. Marijuana establishments to safely cultivate, process and manufacture marijuana and marijuana products. The department shall require licensees to procure, develop, acquire and maintain a system to track marijuana and marijuana products at all points of cultivation, manufacturing and sale. The system developed and maintained pursuant to this paragraph shall:

(a) Ensure an accurate accounting and reporting of the production, processing and sale of marijuana and marijuana products.

(b) Ensure compliance with rules adopted by the department.

(c) Be capable of tracking, at a minimum:

(i) The propagation of immature marijuana plants and the production of marijuana by a marijuana establishment.

(ii) The processing of marijuana and marijuana products by a marijuana establishment.

(iii) The sale and purchase of marijuana and marijuana products between licensees.

(iv) The transfer of marijuana and marijuana products between premises for which licenses have been issued.

(v) The disposal of marijuana waste.

(vi) The identity of the person making the entry in the system and the time, date and location of each entry into the system, including any corrections or changes to that information.

(vii) Any other information that the department determines is reasonably necessary to accomplish the duties, functions and powers of the department.

(d) Contain a transactional stamp to ensure accuracy, provide for chain of custody of the information and foreclose tampering of the data, human error or intentional misreporting.

5. Tracking, testing, labeling consistent with section 36-2854.01 and packaging marijuana and marijuana products, including requirements that marijuana and marijuana products be:

(a) Sold to consumers in clearly and conspicuously labeled containers that contain accurate warnings regarding the use of marijuana or marijuana products.

(b) Placed in child-resistant packaging on exit from a marijuana establishment.

6. Forms of government-issued identification that are acceptable by a marijuana establishment verifying a consumer's age and procedures related to verifying a consumer's age consistent with section 4-241. Until the department adopts final rules related to verifying a consumer's age, marijuana establishments shall comply with the proof of legal age requirements prescribed in section 4-241.

7. The potency of edible marijuana products that may be sold to consumers by marijuana establishments at reasonable levels on consideration of industry standards, except that the rules:

(a) Shall limit the strength of edible marijuana products to not more than ten milligrams of tetrahydrocannabinol per serving or one hundred milligrams of tetrahydrocannabinol per package.

(b) Shall require that if a marijuana product contains more than one serving, it must be delineated or scored into standard serving sizes and homogenized to ensure uniform disbursement throughout the marijuana product.

8. Ensuring the health, safety and training of employees of marijuana establishments and marijuana testing facilities.

9. The creation and implementation of a social equity ownership program to promote the ownership and operation of marijuana establishments and marijuana testing facilities by individuals from communities disproportionately impacted by the enforcement of previous marijuana laws.

10. Prohibiting a marijuana testing facility from having any direct or indirect familial relationship with or financial ownership interest in a marijuana establishment or related marijuana business entity or management company. The rules shall include prohibiting a marijuana establishment from having any direct or indirect familial relationship with or financial ownership interest in a marijuana testing facility or related marijuana business entity or management company.

11. Requiring marijuana establishments to display in a conspicuous location a sign that warns pregnant women about the potential dangers to fetuses caused by smoking or ingesting marijuana while pregnant or to infants while breastfeeding and the risk of being reported to the department of child safety during pregnancy or at the birth of the child by persons who are required to report. The rules shall include the specific warning language that must be included on the sign. The cost and display of the sign required by rule shall be borne by the marijuana establishment.

B. The department may:

1. Subject to title 41, chapter 6, article 10, deny any application submitted or deny, suspend or revoke, in whole or in part, any registration or license issued under this chapter if the registered or licensed party or an officer, agent or employee of the registered or licensed party does any of the following:

(a) Violates this chapter or any rule adopted pursuant to this chapter.

(b) Has been, is or may continue to be in substantial violation of the requirements for licensing or registration and, as a result, the health or safety of the general public is in immediate danger.

2. Subject to title 41, chapter 6, article 10, and unless another penalty is provided elsewhere in this chapter, assess a civil penalty against a person that violates this chapter or any rule adopted pursuant to this chapter in an amount not to exceed $2,000 for each violation. Each day a violation occurs constitutes a separate violation. In determining the amount of a civil penalty assessed against a person, the department shall consider all of the factors set forth in section 36-2816, subsection H. All civil penalties collected by the department pursuant to this paragraph shall be deposited in the smart and safe Arizona fund established by section 36-2856.

3. At any time during regular hours of operation, visit and inspect a marijuana establishment, marijuana testing facility or dual licensee to determine if it complies with this chapter and rules adopted pursuant to this chapter. The department shall make at least one unannounced visit annually to each facility licensed pursuant to this chapter.

4. Adopt any other rules that are not expressly stated in this section and that are necessary to ensure the safe and responsible cultivation, sale, processing, manufacture, testing and transport of marijuana and marijuana products.

C. Until the department adopts rules allowing and regulating delivery by marijuana establishments pursuant to subsection D of this section, delivery is unlawful under this chapter.

D. On or after January 1, 2023, the department may, and not later than January 1, 2025 the department shall, adopt rules to allow and regulate delivery by marijuana establishments. The rules shall:

1. Require that delivery and the marijuana and marijuana products to be delivered originate from a designated retail location of a marijuana establishment and only after an order is made with the marijuana establishment by a consumer. The rules may not limit the distance between the delivery location and the originating designated retail location of the marijuana establishment.

2. Prohibit delivery to any property owned or leased by the United States, this state, a political subdivision of this state or the Arizona board of regents.

3. Limit the amount of marijuana and marijuana products based on retail price that may be in a delivery vehicle during a single trip from the designated retail location of a marijuana establishment.

4. Prohibit extra or unallocated marijuana or marijuana products in delivery vehicles.

5. Require that deliveries be made only by marijuana facility agents in unmarked vehicles that are equipped with a global positioning system or similar location tracking system and video surveillance and recording equipment, and that contain a locked compartment in which marijuana and marijuana products must be stored. The rules may not limit the number of vehicles that a marijuana establishment may use for delivery.

6. Require delivery logs necessary to ensure compliance with this subsection and rules adopted pursuant to this subsection.

7. Require inspections to ensure compliance with this subsection and rules adopted pursuant to this subsection.

8. Include any other provisions necessary to ensure safe and restricted delivery.

9. Require dual licensees to comply with the rules adopted pursuant to this subsection.

E. Except as provided in subsection D of this section, the department may not allow delivery of marijuana or marijuana products under this chapter by any individual or entity. In addition to any other penalty imposed by law, an individual or entity that delivers marijuana or marijuana products in a manner that is not authorized by this chapter shall pay a civil penalty of $20,000 per violation to the smart and safe Arizona fund established by section 36-2856. This subsection may be enforced by the attorney general.

F. All rules adopted by the department pursuant to this section shall be consistent with the purpose of this chapter.

G. The department may not adopt any rule that:

1. Prohibits the operation of marijuana establishments, either expressly or through requirements that make the operation of a marijuana establishment unduly burdensome.

2. Prohibits or interferes with the ability of a dual licensee to operate a marijuana establishment and a nonprofit medical marijuana dispensary at shared locations.

H. Notwithstanding section 41-192, the department may employ legal counsel and make an expenditure or incur an indebtedness for legal services for the purposes of:

1. Defending this chapter or rules adopted pursuant to this chapter.

2. Defending chapter 28.1 of this title or rules adopted pursuant to chapter 28.1 of this title.

I. The department shall deposit all license fees, application fees and renewal fees paid to the department pursuant to this chapter in the smart and safe Arizona fund established by section 36-2856.

J. On request, the department of health services shall share with the department of revenue information regarding a marijuana establishment, marijuana testing facility or dual licensee, including its name, physical address, cultivation site and transaction privilege tax license number.

K. Notwithstanding any other law, the department may:

1. License an independent third-party laboratory to also operate as a marijuana testing facility.

2. Operate a marijuana testing facility.

L. The department shall maintain and publish a current list of all marijuana establishments and marijuana testing facilities by name and license number.

M. Notwithstanding any other law, the issuance of an occupational, professional or other regulatory license or certification to a person by a jurisdiction or regulatory authority outside this state does not entitle that person to be issued a marijuana establishment license, a marijuana testing facility license, or any other license, registration or certification under this chapter.

N. Until the department adopts rules as required by subsection A, paragraph 10 of this section:

1. A marijuana testing facility is prohibited from having any direct or indirect familial relationship with or financial ownership interest in a marijuana establishment or related marijuana business entity or management company.

2. A marijuana establishment is prohibited from having any direct or indirect familial relationship with or financial ownership interest in a marijuana testing facility or related marijuana business entity or management company.

§ 36-2854.01 Marijuana products; labeling; packaging

(Added with a 1998 Prop. 105 clause pursuant to L21, Ch. 394)

Not later than December 31, 2023, any marijuana product packaging labeled for sale shall include a consumer scannable tetrahydrocannabinol quick response code or similar technology linking to a webpage that displays all of the following for the specific marijuana product:

1. The date of harvest of the marijuana.

2. The tetrahydrocannabinol strain of the marijuana.

3. The tetrahydrocannabinol extraction method used to extract the tetrahydrocannabinol from the marijuana.

4. A laboratory report of impurities containing at least heavy metals and agrochemicals.

5. The date of manufacture of the marijuana product.

6. The distribution chain, including at least a point of intended sale.

7. A warning that states, "using marijuana during pregnancy could cause birth defects or other health issues to your unborn child."

§ 36-2855 Marijuana facility agents; registration; card; rules

(Caution: 1998 Prop. 105 applies)

A. A marijuana facility agent shall be registered with the department before working at a marijuana establishment or marijuana testing facility.

B. A person who wishes to be registered as a marijuana facility agent or renew the person's registration as a marijuana facility agent shall:

1. Submit a completed application on a form prescribed by the department and pay a nonrefundable fee that is reasonable and related to the actual cost of processing applications submitted pursuant to this section.

2. Submit evidence that the applicant holds a current level I fingerprint clearance card issued pursuant to section 41-1758.07, or submit a full set of the applicant's fingerprints for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation without disclosing that the records check is related to this chapter and acts allowed by this chapter. The department of public safety shall destroy each set of fingerprints after the criminal records check is completed.

C. If the department determines that an applicant meets the criteria for registration under this chapter and rules pursuant to this chapter, the department shall issue the applicant a marijuana facility agent card that is valid for two years.

D. A registered marijuana facility agent may be employed by or associated with any marijuana establishment or marijuana testing facility. A marijuana establishment or marijuana testing facility shall promptly notify the department when it employs or becomes associated with a new marijuana facility agent. A marijuana facility agent shall promptly notify the department when the marijuana facility agent is employed by or becomes associated with a marijuana establishment or marijuana testing facility and when the marijuana facility agent is no longer employed by or associated with a marijuana establishment or marijuana testing facility.

E. A nonprofit medical marijuana dispensary agent of a dual licensee who has applied to be registered as a marijuana facility agent may serve as a marijuana facility agent of that dual licensee until the department has approved or rejected the agent's application.

F. The department shall adopt rules to implement this section.

§ 36-2856 Smart and safe Arizona fund; disposition of monies; exemption

(Caution: 1998 Prop. 105 applies)

A. The smart and safe Arizona fund is established consisting of all monies deposited pursuant to sections 36-2853, 36-2854, 36-2859, 42-5452 and 42-5453, private donations and interest earned on those monies. Monies in the fund are continuously appropriated. Monies in the fund and its accounts may not be transferred to any other fund except as provided in this section, do not revert to the state general fund and are exempt from the provisions of section 35-190 relating to the lapsing of appropriations. The state treasurer shall administer the fund.

B. All monies in the smart and safe Arizona fund must first be spent, and the state treasurer shall transfer monies from the fund, to pay:

1. The actual reasonable costs incurred by the department to implement, carry out and enforce this chapter and rules adopted pursuant to this chapter.

2. The actual reasonable costs incurred by the department of revenue to impose and enforce the tax authorized and levied by section 42-5452.

3. The actual reasonable costs incurred by the supreme court and the department of public safety to process petitions for expungement and expungement orders pursuant to section 36-2862 and to otherwise implement section 36-2862.

4. The actual reasonable costs incurred by the state treasurer to administer the fund.

5. Any other mandatory expenditure of state revenues required by this chapter to implement or enforce the provisions of this chapter.

C. The state treasurer may prescribe forms necessary to make transfers from the smart and safe Arizona fund pursuant to subsection B of this section.

D. On or before June 30 and December 31 of each year, the state treasurer shall transfer all monies in the smart and safe Arizona fund in excess of the amounts paid pursuant to subsection B of this section as follows:

1. Thirty-three percent to community college districts and provisional community college districts, but not to community college tuition financing districts established pursuant to section 15-1409, for the purposes of investing in and providing workforce development programs, job training, career and technical education, and science, technology, engineering and mathematics programs, as follows:

(a) Fifteen percent of the thirty-three percent divided equally between each community college district.

(b) One-half of one percent of the thirty-three percent divided equally between each provisional community college district, if one or more provisional community college districts exist.

(c) The remainder to community college districts and provisional community colleges districts in proportion to each district's full-time equivalent student enrollment percentage of the total statewide audited full-time equivalent student enrollment in the preceding fiscal year prescribed in section 15-1466.01.

2. 31.4 percent to municipal police departments, municipal fire departments, fire districts and joint powers authorities established pursuant to title 48, chapter 5 and county sheriffs' departments in proportion to the number of members as defined in section 38-842 for each such agency in the public safety personnel retirement system established by title 38, chapter 5, article 4 and the public safety personnel defined contribution retirement plan established pursuant to title 38, chapter 5, article 4.1, for personnel costs.

3. 25.4 percent to the Arizona highway user revenue fund established by section 28-6533.

4. Ten percent to the justice reinvestment fund established by section 36-2863.

5. 0.2 percent to the attorney general to use to enforce this chapter or to grant to localities to enforce this chapter.

E. The monies transferred and received pursuant to this section:

1. Are in addition to any other appropriation, transfer or other allocation of monies and may not supplant, replace or cause a reduction in other funding sources.

2. Are not considered local revenues for the purposes of article IX, sections 20 and 21, Constitution of Arizona.

§ 36-2857 Localities; marijuana establishments and marijuana testing facilities

(Caution: 1998 Prop. 105 applies)

A. A locality may:

1. Enact reasonable zoning regulations that limit the use of land for marijuana establishments and marijuana testing facilities to specified areas.

2. Limit the number of marijuana establishments or marijuana testing facilities, or both.

3. Prohibit marijuana establishments or marijuana testing facilities, or both.

4. Regulate the time, place and manner of marijuana establishment and marijuana testing facility operations.

5. Establish reasonable restrictions on public signage regarding marijuana, marijuana establishments and marijuana testing facilities.

6. Prohibit or restrict delivery within its jurisdiction.

B. A county may exercise its authority pursuant to subsection A of this section only in unincorporated areas of the county.

C. A locality may not enact any ordinance, regulation or rule that:

1. Is more restrictive than a comparable ordinance, regulation or rule that applies to nonprofit medical marijuana dispensaries.

2. Makes the operation of a marijuana establishment or marijuana testing facility unduly burdensome if the locality has not prohibited marijuana establishments or marijuana testing facilities.

3. Conflicts with this chapter or rules adopted pursuant to this chapter.

4. Prohibits the transportation of marijuana by a marijuana establishment or marijuana testing facility on public roads.

5. Restricts or interferes with the ability of a dual licensee or an entity eligible to become a dual licensee to operate a nonprofit medical marijuana dispensary and a marijuana establishment cooperatively at shared locations.

6. Except as expressly authorized by this section or section 36-2851, prohibits or restricts any conduct or transaction allowed by this chapter, or imposes any liability or penalty in addition to that prescribed by this chapter for any conduct or transaction constituting a violation of this chapter.

7. Allows a marijuana establishment to locate within five hundred feet of a public or private school, a child care facility or a facility that provides preschool programs.

§ 36-2858 Lawful operation of marijuana establishments and marijuana testing facilities

(Caution: 1998 Prop. 105 applies)

A. Except as specifically and expressly provided in section 36-2857 and notwithstanding any other law, it is lawful and is not an offense under the laws of this state or any locality, may not constitute the basis for detention, search or arrest, and may not constitute the sole basis for seizure or forfeiture of assets or the basis for imposing penalties under the laws of this state or any locality for:

1. A marijuana establishment, or an agent acting on behalf of a marijuana establishment, to:

(a) Possess marijuana or marijuana products.

(b) Purchase, sell or transport marijuana and marijuana products to or from a marijuana establishment.

(c) Sell marijuana and marijuana products to consumers, except that a marijuana establishment may not sell more than one ounce of marijuana to a consumer in a single transaction, not more than five grams of which may be in the form of marijuana concentrate.

(d) Cultivate, produce, test or process marijuana or manufacture marijuana or marijuana products by any means, including chemical extraction or chemical synthesis.

2. An agent acting on behalf of a marijuana establishment to sell or otherwise transfer marijuana to an individual under twenty-one years of age, if the agent reasonably verified that the individual appeared to be twenty-one years of age or older by means of a government-issued photographic identification in compliance with rules adopted pursuant to section 36-2854, subsection A, paragraph 6.

3. A marijuana testing facility, or an agent acting on behalf of a marijuana testing facility, to obtain, possess, process, repackage, transfer, transport or test marijuana and marijuana products.

4. A nonprofit medical marijuana dispensary or a marijuana establishment, or an agent acting on behalf of a nonprofit medical marijuana dispensary or a marijuana establishment, to sell or otherwise transfer marijuana or marijuana products to a nonprofit medical marijuana dispensary, a marijuana establishment or an agent acting on behalf of a nonprofit medical marijuana dispensary or a marijuana establishment.

5. Any individual, corporation or other entity to sell, lease or otherwise allow property or goods that are owned, managed or controlled by the individual, corporation or other entity to be used for any activity authorized by this chapter, or to provide services to a marijuana establishment, or marijuana testing facility or agent acting on behalf of a marijuana establishment or marijuana testing facility in connection with any activity authorized by this chapter.

B. This section does not preclude the department from imposing penalties against a marijuana establishment or marijuana testing facility for failing to comply with this chapter or rules adopted pursuant to this chapter.

C. A marijuana establishment may be owned or operated by a publicly traded company.

D. Notwithstanding any other law, a dual licensee:

1. May hold a marijuana establishment license and operate a marijuana establishment pursuant to this chapter.

2. May operate on a for-profit basis if the dual licensee promptly notifies the department and department of revenue and takes any actions necessary to enable its for-profit operation, including converting its corporate form and amending its organizational and operating documents.

3. Must continue to hold both its marijuana establishment license and nonprofit medical marijuana dispensary registration, regardless of any change in ownership of the dual licensee, unless it terminates its status as a dual licensee and forfeits either its marijuana establishment license or nonprofit medical marijuana dispensary registration by notifying the department of such a termination and forfeiture.

4. Is not required to:

(a) Employ or contract with a medical director.

(b) Obtain nonprofit medical marijuana dispensary agent or marijuana facility agent registrations for outside vendors that do not have regular, unsupervised access to the interior of the dual licensee's premises.

(c) Have a single secure entrance as required by section 36-2806, subsection C, but may be required to implement appropriate security measures to deter and prevent the theft of marijuana and to reasonably regulate customer access to the premises.

(d) Comply with any other provision of chapter 28.1 of this title or any rule adopted pursuant to chapter 28.1 of this title that makes its operation as a dual licensee unduly burdensome.

E. Notwithstanding any other law, a dual licensee that elects to operate on a for-profit basis pursuant to subsection D, paragraph 2 of this section:

1. Is subject to the taxes imposed pursuant to title 43.

2. Is not required to submit its annual financial statements or an audit report to the department for purposes of renewing its nonprofit medical marijuana dispensary registration.

F. Notwithstanding any other law, a dual licensee must conduct both of the following operations at a shared location:

1. Sell marijuana and marijuana products to consumers pursuant to this chapter.

2. Dispense marijuana to registered qualifying patients and registered designated caregivers pursuant to chapter 28.1 of this title.

G. Notwithstanding chapter 28.1 of this title or any rule adopted pursuant to chapter 28.1 of this title, a dual licensee may engage in any act, practice, conduct or transaction allowed for a marijuana establishment by this chapter.

H. Notwithstanding any other law:

1. An individual may be an applicant, principal officer or board member of more than one marijuana establishment or more than one dual licensee regardless of the establishment's location.

2. Two or more marijuana establishments or dual licensees may designate a single off-site location as prescribed in section 36-2850, paragraph 21, subdivision (c) to be jointly used by those dual licensees or marijuana establishments.

I. Marijuana establishments, marijuana testing facilities and dual licensees that are subject to applicable federal or state antidiscrimination laws may not pay their employees differently based solely on a protected class status such as sex, race, color, religion, national origin, age or disability. This subsection does not expand or modify the jurisdictional reach, provisions or requirements of any applicable antidiscrimination law.

§ 36-2859 Advertising restrictions; enforcement; civil penalty

(Eff. until 7/1/26. Caution: 1998 Prop. 105 applies)

A. A marijuana establishment or nonprofit medical marijuana dispensary may engage in advertising.

B. An advertising platform may host advertising only if all of the following apply:

1. The advertising is authorized by a marijuana establishment or nonprofit medical marijuana dispensary.

2. The advertising accurately and legibly identifies the marijuana establishment or nonprofit medical marijuana dispensary responsible for the content of the advertising by name and license number or registration number.

C. Any advertising under this chapter involving direct, individualized communication or dialogue shall use a method of age affirmation to verify that the recipient is twenty-one years of age or older before engaging in that communication or dialogue. For the purposes of this subsection, that method of age affirmation may include user confirmation, birth date disclosure or other similar registration methods.

D. It is unlawful for an individual or entity other than a marijuana establishment or dual licensee to do any of the following in a manner that is not authorized by this chapter or rules adopted by the department pursuant to this chapter:

1. Facilitate the delivery of marijuana or marijuana products.

2. Solicit or accept orders for marijuana or marijuana products or operate a platform that solicits or accepts orders for marijuana or marijuana products.

3. Operate a listing service related to the sale or delivery of marijuana or marijuana products.

E. A marijuana establishment that violates this section is subject to disciplinary action by the department pursuant to section 36-2854, subsection B. A nonprofit medical marijuana dispensary that violates this section is subject to disciplinary action by the department pursuant to section 36-2816.

F. In addition to any other penalty imposed by law, an individual or entity other than a marijuana establishment or nonprofit medical marijuana dispensary that advertises marijuana or marijuana products in violation of this section or otherwise violates this section shall pay a civil penalty of $20,000 per violation to the smart and safe Arizona fund established by section 36-2856. This subsection may be enforced by the attorney general.

§ 36-2859 (Version 2) Advertising; restrictions; warning; enforcement; civil penalty; exception

(Eff. 7/1/26. Caution: 1998 Prop. 105 applies)

A. A marijuana establishment or nonprofit medical marijuana dispensary may advertise or authorize advertising for marijuana or marijuana products in accordance with restrictions imposed by this section.

B. An individual or entity that sells marijuana paraphernalia may advertise or authorize advertising for marijuana paraphernalia in accordance with restrictions imposed by this section.

C. A marijuana establishment, a nonprofit medical marijuana dispensary or an individual or entity that sells marijuana paraphernalia may engage in advertising but may not do any of the following:

1. Advertise marijuana or marijuana products, including marijuana paraphernalia, to individuals who are under twenty-one years of age, including advertising:

(a) With names that resemble or imitate food or drink brands that are marketed to children.

(b) With images or likenesses of toys, cartoons or animated or fictional characters, including Santa Claus, that are designed to appeal to or encourage individuals who are under twenty-one years of age to consume marijuana or marijuana products.

(c) With images or visual representations of the consumption of marijuana or marijuana products.

(d) With the potency or tetrahydrocannabinol levels of the marijuana or marijuana product.

(e) In a medium that specifically appeals to individuals who are under twenty-one years of age such that the advertising has a special attractiveness to individuals who are under twenty-one years of age beyond general attractiveness for individuals who are at least twenty-one years of age.

2. Advertise at, on or within public airports, public transportation shelters, public buses, public trains, public shuttles or public trams.

3. Advertise electronically, via social media or on a website, unless at least 73.6 percent of the audience is expected to be at least twenty-one years of age.

4. Advertise any health-related statement or statement regarding the effects of marijuana consumption on health that is known to be untrue.

5. Sponsor any sporting event unless at least 73.6 percent of the audience is expected to be at least twenty-one years of age or the sponsored organization provides written approval. Any sponsorship acknowledgment shall be in accordance with restrictions imposed by this section.

D. All advertising pursuant to this section must contain the following conspicuous and legible warning: "Do not use marijuana if you are under twenty-one years of age or pregnant. Keep marijuana out of reach of children." All printed warnings must occupy at least ten percent of the advertising area and must be in black font on a white background, except that billboard advertisement warnings shall be in a type size that is at least ten percent of the largest type used in the advertisement.

E. A billboard advertisement under this section is prohibited within one thousand radial feet of any child care center, church, substance abuse recovery facility, public park, public playground or public or private school that provides instruction to students in preschool or kindergarten programs or any of grades one through twelve. An individual or entity that violates this subsection, on notification by the attorney general's office, has thirty days to comply with these requirements. For circumstances beyond the control of the billboard operator that may prevent removal within the prescribed time frame, the advertisement must be removed as soon as safely and legally practicable. An individual or entity that does not comply with this subsection is subject to the civil penalties and disciplinary action prescribed in this section.

F. An advertising platform may host advertising only if all of the following apply:

1. The advertising is authorized by a marijuana establishment or nonprofit medical marijuana dispensary.

2. The advertising accurately and legibly identifies the marijuana establishment or nonprofit medical marijuana dispensary responsible for the content of the advertising by name and license number or registration number.

3. The advertising contains a printed warning that complies with subsection D of this section.

G. Any advertising under this chapter involving direct, individualized communication or dialogue shall use a method of age affirmation to verify that the recipient is at least twenty-one years of age before engaging in that communication or dialogue. For the purposes of this subsection, that method of age affirmation may include user confirmation, birth date disclosure or other similar registration methods.

H. It is unlawful for an individual or entity other than a marijuana establishment or dual licensee to do any of the following in a manner that is not authorized by this chapter or rules adopted by the department pursuant to this chapter:

1. Facilitate the delivery of marijuana or marijuana products.

2. Solicit or accept orders for marijuana or marijuana products or operate a platform that solicits or accepts orders for marijuana or marijuana products.

3. Operate a listing service related to the sale or delivery of marijuana or marijuana products.

I. A marijuana establishment, a nonprofit medical marijuana dispensary or an individual or entity that sells marijuana paraphernalia and that violates this section, on notification by the department or attorney general's office, has fourteen days to comply with the requirements of this section.

J. A marijuana establishment that is found to be in violation of this section by the attorney general is subject to disciplinary action by the department pursuant to section 36-2854, subsection B. A nonprofit medical marijuana dispensary that is found to be in violation of this section by the attorney general is subject to disciplinary action by the department pursuant to section 36-2816.

K. In addition to any other penalty imposed by law, an individual or entity other than a marijuana establishment or nonprofit medical marijuana dispensary that advertises marijuana or marijuana products, including marijuana paraphernalia, in violation of this section or otherwise violates this section shall pay a civil penalty of $20,000 per violation to the smart and safe Arizona fund established by section 36-2856.

L. This section shall be enforced by the attorney general.

M. For the purposes of this section, advertising does not include a communication of a marijuana establishment or nonprofit medical marijuana dispensary that is targeted only to the established customer base or that is requested by a customer or potential customer pursuant to an opt-in with an age affirmation.

§ 36-2860 Packaging; restrictions on particular marijuana products

(Caution: 1998 Prop. 105 applies)

A. A marijuana establishment may not:

1. Package or label marijuana or marijuana products in a false or misleading manner.

2. Manufacture or sell marijuana products that resemble the form of a human, animal, insect, fruit, toy or cartoon.

3. Sell or advertise marijuana or marijuana products with names that resemble or imitate food or drink brands marketed to children, or otherwise advertise marijuana or marijuana products to children.

B. A marijuana establishment that violates this section is subject to disciplinary action by the department pursuant to section 36-2854, subsection B.

§ 36-2861 Contracts; professional services

(Caution: 1998 Prop. 105 applies)

A. It is the public policy of this state that contracts related to marijuana establishments and marijuana testing facilities are enforceable.

B. A person that is licensed, certified or registered by any department, agency or regulatory board of this state is not subject to disciplinary action by that entity for providing professional assistance to a prospective or registered marijuana establishment, marijuana testing facility or other person for any lawful activity under this chapter.

§ 36-2862 Expungement; petition; appeal; dismissal of complaints; rules

(Caution: 1998 Prop. 105 applies)

A. Beginning July 12, 2021, an individual who was arrested for, charged with, adjudicated or convicted by trial or plea of, or sentenced for, any of the following offenses based on or arising out of conduct occurring before the effective date of this section may petition the court to have the record of that arrest, charge, adjudication, conviction or sentence expunged:

1. Possessing, consuming or transporting two and one-half ounces or less of marijuana, of which not more than twelve and one-half grams was in the form of marijuana concentrate.

2. Possessing, transporting, cultivating or processing not more than six marijuana plants at the individual's primary residence for personal use.

3. Possessing, using or transporting paraphernalia relating to the cultivation, manufacture, processing or consumption of marijuana.

B. If the court receives a petition for expungement pursuant to this section:

1. The court shall notify the prosecuting agency of the filing of the petition, and allow the prosecuting agency to respond to the petition within thirty days.

2. The court may hold a hearing:

(a) On the request of either the petitioner or the prosecuting agency.

(b) If the court concludes there are genuine disputes of fact regarding whether the petition should be granted.

3. The court shall grant the petition unless the prosecuting agency establishes by clear and convincing evidence that the petitioner is not eligible for expungement.

4. The court shall issue a signed order or minute entry granting or denying the petition in which it makes findings of fact and conclusions of law.

C. If the court grants a petition for expungement:

1. The signed order or minute entry required pursuant to subsection B, paragraph 4 of this section shall do all of the following:

(a) If the petitioner was adjudicated or convicted of an offense set forth in subsection A of this section, vacate the judgment of adjudication or conviction.

(b) State that it expunges any record of the petitioner's arrest, charge, conviction, adjudication and sentence.

(c) If the petitioner was convicted or adjudicated of an offense set forth in subsection A of this section, state that the petitioner's civil rights, including the right to possess firearms, are restored, unless the petitioner is otherwise not eligible for the restoration of civil rights on grounds other than a conviction for an offense set forth in subsection A of this section.

(d) Require the clerk of the court to notify the department of public safety, the prosecuting agency and the arresting law enforcement agency, if applicable, of the expungement order.

(e) Require the clerk of the court to seal all records relating to the expunged arrest, charge, adjudication, conviction or sentence and allow the records to be accessed only by the individual whose record was expunged or the individual's attorney.

2. The department of public safety shall seal and separate the expunged record from its records and inform all appropriate state and federal law enforcement agencies of the expungement. Unless the petitioner is indigent, the department of public safety may charge the successful petitioner a reasonable fee determined by the director of the department of public safety to research and correct the petitioner's criminal history record.

3. The arresting and prosecuting agencies shall clearly identify in each agency's files and electronic records that the petitioner's arrest, charge, conviction, adjudication and sentence are expunged and shall not make any records of the expunged arrest, charge, conviction, adjudication or sentence available as a public record to any person except to the individual whose record was expunged or that individual's attorney.

D. An arrest, charge, adjudication, conviction or sentence that is expunged pursuant to this section may not be used in a subsequent prosecution by a prosecuting agency or court for any purpose.

E. An individual whose record of arrest, charge, adjudication, conviction or sentence is expunged pursuant to this section may state that the individual has never been arrested for, charged with, adjudicated or convicted of, or sentenced for the crime that is the subject of the expungement.

F. If the court denies a petition for expungement, the petitioner may file a direct appeal pursuant to section 13-4033, subsection A, paragraph 3.

G. On motion, the court shall dismiss with prejudice any pending complaint, information or indictment based on any offense set forth in subsection A of this section, to include charges or allegations based on or arising out of conduct occurring before the effective date of this chapter. The individual charged may thereafter petition the court to expunge records of the arrest and charge or allegation as provided in this section. A motion brought pursuant to this subsection may be filed with the court before July 12, 2021.

H. The supreme court may adopt rules necessary to implement this section, and may also sponsor public service announcements or other notifications intended to provide notice to individuals who may be eligible to file petitions for expungement pursuant to this section.

I. A prosecuting agency may file a petition for expungement pursuant to this section on behalf of any individual who was prosecuted by that prosecuting agency, and the attorney general may file a petition for expungement pursuant to this section on behalf of any individual.

§ 36-2863 Justice reinvestment fund; exemption; distribution; definition

(Caution: 1998 Prop. 105 applies)

A. The justice reinvestment fund is established consisting of all monies deposited pursuant to section 36-2856 and interest earned on those monies. Monies in the fund are continuously appropriated. Monies in the fund and its accounts may not be transferred to any other fund except as provided in this section, do not revert to the state general fund, and are exempt from the provisions of section 35-190 relating to the lapsing of appropriations. The state treasurer shall administer the fund.

B. All monies in the justice reinvestment fund must first be spent, and the state treasurer shall transfer monies from the fund, to pay:

1. The reasonable costs incurred by the state treasurer to administer the fund.

2. The reasonable administrative costs incurred by the department to carry out its duties pursuant to this section.

C. On or before June 30 and December 31 of each year, the state treasurer shall transfer all monies in the justice reinvestment fund in excess of the amounts paid pursuant to subsection B of this section as follows:

1. Thirty-five percent to county public health departments, in proportion to the population of each county according to the most recent United States decennial census, for the purpose of providing justice reinvestment programs or distributing grants to qualified nonprofit organizations to provide justice reinvestment programs in that county.

2. Thirty-five percent to the department for the purpose of distributing grants to qualified nonprofit organizations that provide justice reinvestment programs in this state.

3. Thirty percent to the department for the purpose of addressing important public health issues that affect this state.

D. Grants made pursuant to this section are exempt from title 41, chapter 23, and each grantee shall provide the granting agency with an annual report detailing the use of granted monies.

E. Monies transferred and received pursuant to subsection C of this section are not considered local revenues for the purposes of article IX, section 20, Constitution of Arizona.

F. The state treasurer may prescribe forms necessary to make transfers pursuant to subsection B of this section.

G. For the purposes of this section, "justice reinvestment programs" means initiatives or programs that focus on any of the following:

1. Public and behavioral health, including evidence-based and evidence-informed substance use prevention and treatment and substance use early intervention services.

2. Restorative justice, jail diversion, workforce development, industry-specific technical assistance or mentoring services for economically disadvantaged persons in communities disproportionately impacted by high rates of arrest and incarceration.

3. Addressing the underlying causes of crime, reducing drug-related arrests and reducing the prison population in this state.

4. Creating or developing technology and programs to assist with the restoration of civil rights and the expungement of criminal records.

§ 36-2864 Transaction privilege tax; use tax; additional taxes prohibited; exception

(Caution: 1998 Prop. 105 applies)

A. For purposes of the transaction privilege tax and use tax levied and collected pursuant to title 42, chapters 5 and 6, marijuana and marijuana products are tangible personal property defined in section 42-5001 and are subject to the transaction privilege tax in the retail classification and use tax.

B. Except as provided in subsection A of this section and section 42-5452, this state and localities may not levy or collect additional taxes of any kind on the sale of marijuana or marijuana products and may not levy or collect any fees or assessments of any kind on the sale of marijuana or marijuana products or on the licensing, operations or activities of marijuana establishments or marijuana testing facilities, unless the fee or assessment is of general applicability to individuals or businesses that are not engaged in the sale of marijuana or marijuana products.

C. The prohibition imposed by subsection B of this section does not apply to uniform increases to the transaction privilege tax rate for the retail classification or use tax rate by this state or a locality or to uniform increases to fees or assessments allowed by subsection B of this section.

§ 36-2865 Enforcement of this chapter; special action

(Caution: 1998 Prop. 105 applies)

A. If the department fails to adopt rules necessary to implement this chapter on or before June 1, 2021, or fails to begin accepting applications as provided in section 36-2854, subsection A, paragraph 1, subdivision (d), any citizen may commence a special action in superior court to compel the department to perform the actions mandated under this chapter.

B. If the department fails to issue a license or send a notice of denial within sixty days after receiving a complete marijuana establishment application pursuant to section 36-2854, subsection A, paragraph 1, subdivision (d), the applicant may commence a special action in superior court to compel the department to perform the actions mandated under this chapter.

C. Notwithstanding chapter 28.1 of this title, if the department fails to issue any marijuana establishment licenses pursuant to section 36-2854, subsection A, paragraph 1, subdivision (d) on or before April 5, 2021, each nonprofit medical marijuana dispensary in good standing may begin to cultivate, produce, process, manufacture, transport and test marijuana and marijuana products and may sell marijuana and marijuana products to consumers until the department issues licenses to operate marijuana establishments. If this occurs, nonprofit medical marijuana dispensaries in good standing shall:

1. Be treated as marijuana establishments for all purposes under this chapter, and their nonprofit medical marijuana establishment agents shall be treated as marijuana facility agents for all purposes under this chapter.

2. Comply with the rules adopted by the department to implement chapter 28.1 of this title, except those that are inconsistent with this chapter.

Chapter 29 Arizona Health Care Cost Containment System Administration

Article 1 Arizona Health Care Cost Containment System

§ 36-2901 Definitions

In this article, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Administrator" means the administrator of the Arizona health care cost containment system.

3. "Contractor" means a person or entity that has a prepaid capitated contract with the administration pursuant to section 36-2904 or chapter 34 of this title to provide health care to members under this article or persons under chapter 34 of this title either directly or through subcontracts with providers.

4. "Department" means the department of economic security.

5. "Director" means the director of the Arizona health care cost containment system administration.

6. "Eligible person" means any person who is:

(a) Any of the following:

(i) Defined as mandatorily or optionally eligible pursuant to title XIX of the social security act as authorized by the state plan.

(ii) Defined in title XIX of the social security act as an eligible pregnant woman or a woman who is less than one year postpartum with a family income that does not exceed one hundred fifty percent of the federal poverty guidelines, as a child under the age of six years and whose family income does not exceed one hundred thirty-three percent of the federal poverty guidelines or as children who have not attained nineteen years of age and whose family income does not exceed one hundred thirty-three percent of the federal poverty guidelines.

(iii) Under twenty-six years of age and who was in the custody of the department of child safety pursuant to title 8, chapter 4 when the person became eighteen years of age.

(iv) Defined as eligible pursuant to section 36-2901.01.

(v) Defined as eligible pursuant to section 36-2901.04.

(vi) Defined as eligible pursuant to section 36-2901.07.

(b) A full-time officer or employee of this state or of a city, town or school district of this state or other person who is eligible for hospitalization and medical care under title 38, chapter 4, article 4.

(c) A full-time officer or employee of any county in this state or other persons authorized by the county to participate in county medical care and hospitalization programs if the county in which such officer or employee is employed has authorized participation in the system by resolution of the county board of supervisors.

(d) An employee of a business within this state.

(e) A dependent of an officer or employee who is participating in the system.

(f) Not enrolled in the Arizona long-term care system pursuant to article 2 of this chapter.

(g) Defined as eligible pursuant to section 1902(a)(10)(A)(ii)(XV) and (XVI) of title XIX of the social security act and who meets the income requirements of section 36-2929.

7. "Graduate medical education" means a program, including an approved fellowship, that prepares a physician for the independent practice of medicine by providing didactic and clinical education in a medical discipline to a medical student who has completed a recognized undergraduate medical education program.

8. "Malice" means evil intent and outrageous, oppressive or intolerable conduct that creates a substantial risk of tremendous harm to others.

9. "Member" means an eligible person who enrolls in the system.

10. "Modified adjusted gross income" has the same meaning prescribed in 42 United States Code section 1396a(e)(14).

11. "Noncontracting provider" means a person who provides health care to members pursuant to this article but not pursuant to a subcontract with a contractor.

12. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

13. "Prepaid capitated" means a mode of payment by which a health care contractor directly delivers health care services for the duration of a contract to a maximum specified number of members based on a fixed rate per member notwithstanding:

(a) The actual number of members who receive care from the contractor.

(b) The amount of health care services provided to any member.

14. "Primary care physician" means a physician who is a family practitioner, general practitioner, pediatrician, general internist, or obstetrician or gynecologist.

15. "Primary care practitioner" means a nurse practitioner or certified nurse midwife who is certified pursuant to title 32, chapter 15 or a physician assistant who is licensed pursuant to title 32, chapter 25. This paragraph does not expand the scope of practice for nurse practitioners or certified nurse midwives as defined pursuant to title 32, chapter 15 or for physician assistants as defined pursuant to title 32, chapter 25.

16. "Regional behavioral health authority" has the same meaning prescribed in section 36-3401.

17. "Section 1115 waiver" means the research and demonstration waiver granted by the United States department of health and human services.

18. "Special health care district" means a special health care district organized pursuant to title 48, chapter 31.

19. "State plan" has the same meaning prescribed in section 36-2931.

20. "System" means the Arizona health care cost containment system established by this article.

§ 36-2901.01 Additional definition of eligibility for the Arizona health care cost containment system; enforcement; private right of action

(Caution: 1998 Prop. 105 Applies)

A. For the purposes of section 36-2901, "eligible person" includes any person who has an income level that, at a minimum, is between zero and one hundred per cent of the federal poverty guidelines as published annually by the United States department of heath and human services and based on the resource limits that are defined by the director of the Arizona health care cost containment system administration and that are not less than the resource limits in effect on November 5, 1996, and also based on other eligibility requirements of federal law or the health care financing administration pursuant to section 1115 of the social security act. The people acting through initiative, or the legislature by a simple majority vote, may change the eligibility threshold to a percentage of the federal poverty guidelines that is even more inclusive. Neither the executive department nor the legislature may establish a cap on the number of eligible persons who may enroll in the system.

B. To ensure that sufficent monies are available to provide benefits to all persons who are eligible pursuant to this section, funding shall come from the Arizona tobacco litigation settlement fund established by section 36-2901.02 and shall be supplemented, as necessary, by any other available sources including legislative appropriations and federal monies.

C. An eligible person or a prospective eligible person may bring an action in the superior court against the director of the health care cost containment system adminstration and this state to enforce this section and section 36-2901.02. The court has jurisdiction to enforce this section and section 36-2901.02 and any rule adopted pursuant to these sections and may apply appropriate civil sanctions and equitable remedies.

§ 36-2901.02 Arizona tobacco litigation settlement fund; nonlapsing

(Caution: 1998 Prop 105 Applies)

A. The Arizona tobacco litigation settlement fund is established consisting of all monies that this state receives pursuant to the tobacco litigation master settlement agreement entered into on November 23, 1998 and interest earned on these monies. The director of the Arizona health care cost containment system administration shall administer the fund. The state treasurer shall invest monies in the fund pursuant to section 35-313 and shall credit monies earned from these investments to the fund.

B. The director shall use fund monies as follows and in the following order:

1. Withdraw an amount necessary in each fiscal year to fully implement and fully fund the programs and services required as a result of the expanded definition of an eligible person pursuant to section 36-2901.01.

2. Withdraw an amount necessary in each fiscal year to fully implement and fully fund each of the programs listed in section 5-522, subsection E, as amended pursuant to the initiative measure approved by the voters on November 5, 1996, at funding levels that when annually adjusted for inflation, as provided in said initiative, are equal to or greater than those provided for in that election. The joint legislative budget committee shall compute these adjusted levels and provide this information to the director of the Arizona health care cost containment system administration. The director shall transfer these monies to the agencies responsible for administering each of the programs. The legislature may modify the funding provided pursuant to this subsection by simple majority vote not less than ten years after the effective date of this section.

C. The director may use any remaining fund monies to fund expanded coverage in the Arizona health care cost containment system including the premium sharing program and as approved by the voters or by the legislature by simple majority vote.

D. The legislature may appropriate any monies that remain in the fund after the programs prescribed in subsection B, paragraphs 1 and 2 of this section are fully funded and implemented only for programs that benefit the health of the residents of this state.

E. Monies in the fund:

1. Shall be used to supplement and not supplant existing and future appropriations to the Arizona health care cost containment system administration for existing and future programs.

2. Do not revert to the state general fund.

3. Are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

4. Are continuously appropriated.

§ 36-2901.03 Federal poverty program; eligibility

A. The administration shall adopt rules for a streamlined eligibility determination process for any person who applies to be an eligible person as defined in section 36-2901, paragraph 6, subdivision (a), item (iv). The administration shall adopt these rules in accordance with state and federal requirements and the section 1115 waiver.

B. The administration must base eligibility on an adjusted gross income that does not exceed one hundred per cent of the federal poverty guidelines.

C. For persons who the administration determines are eligible pursuant to this section, the date of eligibility is the first day of the month of application.

D. Except as provided in subsection E of this section, the administration shall determine an eligible person's continued eligibility at least annually.

E. Every six months the administration shall determine the continued eligibility of any adult who is at least twenty-one years of age and who is subject to redetermination of eligibility for temporary assistance for needy families cash benefits by the department. Acute care redeterminations pursuant to this subsection shall occur simultaneously with redeterminations of eligibility for temporary assistance for needy families cash benefits.

§ 36-2901.04 Medical expense deduction eligibility process

A. The administration shall adopt rules for a streamlined medical expense deduction eligibility process to determine eligibility for any person who applies to be an eligible person as defined in section 36-2901, paragraph 6, subdivision (a), item (v). The administration shall adopt these rules in accordance with state and federal requirements and the section 1115 waiver.

B. To be eligible for the medical expense deduction program established pursuant to this section a person must meet the following requirements:

1. Have a family income that does not exceed forty per cent of the federal poverty guidelines after deducting allowable medical expenses.

2. Have family resources that do not exceed one hundred thousand dollars in net worth, including five thousand dollars in liquid assets. The administration shall exclude one vehicle.

C. An applicant may use the allowable medical expenses of a member of the applicant's family unit to reduce income to the required income level prescribed in subsection A of this section. The administration shall calculate income by using medical expenses that are not reimbursable by first or third party liability and that are incurred in a three month period beginning with the month before the month of application, the month of application and the following month.

D. To determine when spend down is met, the administration shall deduct from the applicant's family income incurred medical expenses sequentially beginning with the month before the month of application.

E. Eligibility is the date that spend down is met as determined by the department or the first day of the month of application, whichever is later.

F. The administration shall grant eligibility for five continuous months plus any remaining days starting with the first day of eligibility but not to exceed a maximum period of six months.

§ 36-2901.05 Breast and cervical cancer treatment; additional definition of eligibility

A. For the purposes of this article, beginning January 1, 2002, "eligible person" includes a person who meets all of the following requirements:

1. Has been screened for breast and cervical cancer by a provider or entity that is recognized by the well woman healthcheck program administered by the department of health services as part of its program under title XV of the public health service act and that operates consistently with well woman healthcheck program guidelines.

2. Needs treatment for breast or cervical cancer.

3. Has an income level that is at or below two hundred fifty per cent of the federal poverty guidelines.

4. Is under sixty-five years of age.

5. Is not otherwise covered under creditable coverage as defined in section 2701(c) of the public health services act (42 United States Code section 300gg(c)).

B. The administration shall limit the assistance it provides pursuant to this section to medically necessary services provided during the period that the person requires treatment for breast or cervical cancer as determined by the administration.

C. The administration shall use a simplified eligibility form that the applicant may mail to the administration. Once the administration receives a completed application, the administration shall expedite the eligibility determination and enrollment on a prospective basis.

§ 36-2901.06 Capitation rate adjustments; limitation

Capitation rate adjustments shall be limited to utilization of existing services and inflation unless policy changes, including creation or expansion of programs, have been approved by the legislature or are specifically required by federal law or court mandate.

§ 36-2901.07 Definition of eligible person; conditional eligibility

(Conditionally Rpld.)

A. Beginning January 1, 2014, for the purposes of section 36-2901, "eligible person" includes a person who is eligible pursuant to 42 United States Code section 1396a(a)(10)(A)(i)(VIII) and whose household's modified adjusted gross income is more than one hundred per cent but equal to or less than one hundred thirty-three per cent of the federal poverty guidelines.

B. The administration shall discontinue eligibility for a person who is eligible pursuant to subsection A of this section if the federal medical assistance percentage established pursuant to 42 United States Code section 1396d(y) or 1396d(z) that is applicable to this state is less than eighty per cent.

C. The administration shall discontinue eligibility for persons who are eligible pursuant to subsection A of this section if the maximum amount that can be assessed under section 36-2901.08 without causing a reduction in federal financial participation, in combination with the monies specified in section 36-2901.09 and any other monies appropriated for the costs of this section and costs specified in section 36-2901.08, subsection A, is insufficient to cover those costs.

§ 36-2901.08 Hospital assessment

(Conditionally Rpld.)

A. The director shall establish, administer and collect an assessment on hospital revenues, discharges or bed days for the purpose of funding the nonfederal share of the costs, except for costs of the services described in section 36-2907, subsection F, that are incurred beginning January 1, 2014 and that are not covered by the proposition 204 protection account established by section 36-778 and the Arizona tobacco litigation settlement fund established by section 36-2901.02 or any other monies appropriated to cover these costs, for all of the following individuals:

1. Persons who are defined as eligible pursuant to section 36-2901.07.

2. Persons who do not meet the eligibility standards described in the state plan or the section 1115 waiver that were in effect immediately before November 27, 2000, but who meet the eligibility standards described in the state plan as effective October 1, 2001.

3. Persons who are defined as eligible pursuant to section 36-2901.01 but who do not meet the eligibility standards in either section 36-2934 or the state plan in effect as of January 1, 2013.

B. The director shall adopt rules regarding the method for determining the assessment, the amount or rate of the assessment, and modifications or exemptions from the assessment. The assessment is subject to approval by the federal government to ensure that the assessment is not established or administered in a manner that causes a reduction in federal financial participation.

C. The director may establish modifications or exemptions to the assessment. In determining the modifications or exemptions, the director may consider factors including the size of the hospital, the specialty services available to patients and the geographic location of the hospital.

D. Before implementing the assessment, and thereafter if the methodology is modified, the director shall present the methodology to the joint legislative budget committee for review.

E. The administration shall not collect an assessment for costs associated with service after the effective date of any reduction of the federal medical assistance percentage established by 42 United States Code section 1396d(y) or 1396d(z) that is applicable to this state to less than eighty per cent.

F. The administration shall deposit the revenues collected pursuant to this section in the hospital assessment fund established by section 36-2901.09.

G. A hospital shall not pass the cost of the assessment on to patients or third-party payors that are liable to pay for care on a patient's behalf. As part of its financial statement submissions pursuant to section 36-125.04, a hospital shall submit to the department of health services an attestation that it has not passed on the cost of the assessment to patients or third-party payors.

H. If a hospital does not comply with this section as prescribed by the director, the director may suspend or revoke the hospital's Arizona health care cost containment system provider agreement registration. If the hospital does not comply within one hundred eighty days after the director suspends or revokes the hospital's provider agreement, the director shall notify the director of the department of health services, who shall suspend or revoke the hospital's license pursuant to section 36-427.

§ 36-2901.09 Hospital assessment fund

A. The hospital assessment fund is established consisting of monies collected pursuant to section 36-2901.08. The director shall administer the fund.

B. The director shall use fund monies only as necessary to supplement monies in the proposition 204 protection account established by section 36-778 and the Arizona tobacco litigation settlement fund established by section 36-2901.02.

C. Monies in the fund:

1. Do not revert to the state general fund.

2. Are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

3. Are continuously appropriated.

§ 36-2902 Arizona health care cost containment system administration; director; compensation

A. There is established the Arizona health care cost containment system administration.

B. The administration shall be administered by a director appointed by the governor and confirmed by the senate.

C. The director of the administration is eligible to receive compensation pursuant to section 38-611.

§ 36-2902.01 Arizona advisory council on Indian health care; membership; compensation; meetings

A. The Arizona advisory council on Indian health care is established to give tribal governments, tribal organizations and urban Indian health care organizations in this state representation in shaping medicaid and health care policies and laws that impact the populations they serve.

B. The council consists of the following members:

1. Twenty-two representatives of the federally recognized American Indian tribes in this state who are appointed by the governor. Each federally recognized American Indian tribe in this state may recommend to the governor names of persons to represent the tribe on and for appointment to the council. Representatives shall be appointed from those names submitted by the tribes. Recommended representatives may have experience serving the elderly, youth, children or families or persons with disabilities.

2. One representative from the inter tribal council of Arizona who is recommended by the president of the inter tribal council of Arizona and who is appointed by governor.

3. One representative from an urban Indian health organization in this state that receives Indian health services funding pursuant to 25 United States Code chapter 18 who is recommended jointly by the urban Indian health organizations and who is appointed by the governor.

4. One representative from the Arizona health care cost containment system who is appointed by the director.

5. One representative from the department of health services who is appointed by the director of the department of health services.

6. One representative from the department of economic security who is appointed by the director of the department of economic security.

7. One representative from the Arizona early childhood development and health board who is appointed by the executive director of the Arizona early childhood development and health board.

C. A majority of the council members shall be members of federally recognized American Indian tribes in this state. The council shall contact each tribe to solicit names of persons to recommend for expired terms under subsection B, paragraph 1.

D. The council shall invite federal representatives of the centers for medicare and medicaid services, the Indian health service, the United States social security administration and the United States department of veterans affairs to serve as technical advisors to the council. These representatives shall be ex officio members and may serve a three-year term on the council.

E. Except as provided in subsection B, paragraphs 4, 5, 6 and 7 of this section, a member of the council may not be an employee of this state.

F. Members of the council are not eligible to receive compensation, but are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

G. Members who are appointed pursuant to subsection B, paragraphs 1, 2 and 3 shall serve staggered three-year terms. A member who is absent without notice from three consecutive meetings vacates the individual's membership. The governor may appoint a new member within thirty days after the third unexcused absence. Vacancies occurring on the council shall be filled for the balance of the term.

H. The council shall elect, from persons appointed pursuant to subsection B, paragraph 1, 2 or 3 of this section, a chairperson and vice chairperson. The chairperson and vice chairperson shall be members of a federally recognized American Indian tribe in this state. The election shall be held the second Monday in July every other year. The term of office shall be two years. The council shall meet at least six times a year and may meet more often at the call of the chairperson or vice chairperson. A majority of seated council members constitutes a quorum.

I. An ex officio member serving pursuant to subsection D of this section is not eligible to vote and is not a member for purposes of determining whether a quorum is present.

J. Meetings are open to the public and minutes of each meeting are open for public inspection.

§ 36-2902.02 Arizona advisory council on Indian health care; duties; appropriation request

A. The Arizona advisory council on Indian health care shall:

1. Hire and employ a director who shall hire and employ staff, subject to legislative appropriation, for purposes relating to the functions of the council. The staff shall provide technical assistance to tribal governments on tribal health care initiatives. The director, on behalf of the council, shall annually notify the director of the Arizona health care cost containment system administration of the amount of appropriation required by the council for the following fiscal year.

2. Assist tribes and urban Indian health organizations to develop comprehensive medical and public health care delivery and financing systems to meet the needs of American Indian tribes in this state. In performing this duty, the council shall:

(a) Recommend new title XIX and XXI programs, services, funding options, policies and demonstration projects to meet the needs of American Indian tribes and urban Indian health organizations, both on and off reservations, in cooperation with this state and the federal government.

(b) Facilitate communications, planning, advocacy and discussion among tribes and urban Indian health organizations in this state and with this state and federal agencies regarding operations, financing, policy and legislation relating to Indian medical and public health care.

(c) Recommend and advocate tribal, state and federal policy and legislation that support the design and implementation of medical and public health care delivery and financing systems for tribes and urban Indian health organizations in this state.

(d) Conduct and commission studies and research to further the purpose of the council and to address identified Indian health care disparities in this state.

(e) Conduct periodic public hearings to gather input and recommendations from tribal populations on their health care issues and concerns.

(f) Apply for and seek grants, contracts and funding to further the purpose of the council. The funding shall supplement and not diminish annual appropriations for the council.

(g) Notwithstanding section 36-2903.01, subsection B, in conjunction with the administration and a tribe that operates a temporary assistance for needy families program, request a federal waiver from the United States department of health and human services that allows tribal governments that perform eligibility determinations for temporary assistance for needy families programs to perform the medicaid eligibility determinations for persons who apply for services pursuant to section 36-2901, paragraph 6, subdivision (a). If the waiver is approved, the state shall provide the state matching monies for the administrative costs associated with the medicaid eligibility based on federal guidelines. As part of the waiver, the administration shall recoup from a tribal government all federal fiscal sanctions that result from inaccurate eligibility determinations.

(h) Perform other duties as requested by the legislature.

B. The director, on notification by the council, shall include the amount of the council's appropriation request in the agency's annual appropriations request.

§ 36-2903 Arizona health care cost containment system; administrator; powers and duties of director and administrator; exemption from attorney general representation; definition

A. The Arizona health care cost containment system is established consisting of contracts with contractors for the provision of hospitalization and medical care coverage to members. Except as specifically required by federal law and by section 36-2909, the system is only responsible for providing care on or after the date that the person has been determined eligible for the system, and is only responsible for reimbursing the cost of care rendered on or after the date that the person was determined eligible for the system.

B. An agreement may be entered into with an independent contractor, subject to title 41, chapter 23, to serve as the statewide administrator of the system. The administrator has full operational responsibility, subject to supervision by the director, for the system, which may include any or all of the following:

1. Development of county-by-county implementation and operation plans for the system that include reasonable access to hospitalization and medical care services for members.

2. Contract administration and oversight of contractors, including certification instead of licensure for title XVIII and title XIX purposes.

3. Provision of technical assistance services to contractors and potential contractors.

4. Development of a complete system of accounts and controls for the system including provisions designed to ensure that covered health and medical services provided through the system are not used unnecessarily or unreasonably including but not limited to inpatient behavioral health services provided in a hospital. Periodically the administrator shall compare the scope, utilization rates, utilization control methods and unit prices of major health and medical services provided in this state in comparison with other states' health care services to identify any unnecessary or unreasonable utilization within the system. The administrator shall periodically assess the cost effectiveness and health implications of alternate approaches to the provision of covered health and medical services through the system in order to reduce unnecessary or unreasonable utilization.

5. Establishment of peer review and utilization review functions for all contractors.

6. Assistance in the formation of medical care consortiums to provide covered health and medical services under the system for a county.

7. Development and management of a contractor payment system.

8. Establishment and management of a comprehensive system for assuring the quality of care delivered by the system.

9. Establishment and management of a system to prevent fraud by members, subcontracted providers of care, contractors and noncontracting providers.

10. Coordination of benefits provided under this article to any member. The administrator may require that contractors and noncontracting providers are responsible for the coordination of benefits for services provided under this article. Requirements for coordination of benefits by noncontracting providers under this section are limited to coordination with standard health insurance and disability insurance policies and similar programs for health coverage.

11. Development of a health education and information program.

12. Development and management of an enrollment system.

13. Establishment and maintenance of a claims resolution procedure to ensure that ninety per cent of the clean claims shall be paid within thirty days of receipt and ninety-nine per cent of the remaining clean claims shall be paid within ninety days of receipt. For the purposes of this paragraph, "clean claims" has the same meaning prescribed in section 36-2904, subsection G.

14. Establishment of standards for the coordination of medical care and patient transfers pursuant to section 36-2909, subsection B.

15. Establishment of a system to implement medical child support requirements, as required by federal law. The administration may enter into an intergovernmental agreement with the department of economic security to implement this paragraph.

16. Establishment of an employee recognition fund.

17. Establishment of an eligibility process to determine whether a medicare low income subsidy is available to persons who want to apply for a subsidy as authorized by title XVIII.

C. If an agreement is not entered into with an independent contractor to serve as statewide administrator of the system pursuant to subsection B of this section, the director shall ensure that the operational responsibilities set forth in subsection B of this section are fulfilled by the administration and other contractors as necessary.

D. If the director determines that the administrator will fulfill some but not all of the responsibilities set forth in subsection B of this section, the director shall ensure that the remaining responsibilities are fulfilled by the administration and other contractors as necessary.

E. The administrator or any direct or indirect subsidiary of the administrator is not eligible to serve as a contractor.

F. Except for reinsurance obtained by contractors, the administrator shall coordinate benefits provided under this article to any eligible person who is covered by workers' compensation, disability insurance, a hospital and medical service corporation, a health care services organization, an accountable health plan or any other health or medical or disability insurance plan including coverage made available to persons defined as eligible by section 36-2901, paragraph 6, subdivisions (b), (c), (d) and (e), or who receives payments for accident-related injuries, so that any costs for hospitalization and medical care paid by the system are recovered from any other available third party payors. The administrator may require that contractors and noncontracting providers are responsible for the coordination of benefits for services provided under this article. Requirements for coordination of benefits by noncontracting providers under this section are limited to coordination with standard health insurance and disability insurance policies and similar programs for health coverage. The system shall act as payor of last resort for persons eligible pursuant to section 36-2901, paragraph 6, subdivision (a), section 36-2974 or section 36-2981, paragraph 6 unless specifically prohibited by federal law. By operation of law, eligible persons assign to the system and a county rights to all types of medical benefits to which the person is entitled, including first party medical benefits under automobile insurance policies based on the order of priorities established pursuant to section 36-2915. The state has a right to subrogation against any other person or firm to enforce the assignment of medical benefits. The provisions of this subsection are controlling over the provisions of any insurance policy that provides benefits to an eligible person if the policy is inconsistent with the provisions of this subsection.

G. Notwithstanding subsection E of this section, the administrator may subcontract distinct administrative functions to one or more persons who may be contractors within the system.

H. The director shall require as a condition of a contract with any contractor that all records relating to contract compliance are available for inspection by the administrator and the director subject to subsection I of this section and that such records be maintained by the contractor for five years. The director shall also require that these records be made available by a contractor on request of the secretary of the United States department of health and human services, or its successor agency.

I. Subject to existing law relating to privilege and protection, the director shall prescribe by rule the types of information that are confidential and circumstances under which such information may be used or released, including requirements for physician-patient confidentiality. Notwithstanding any other provision of law, such rules shall be designed to provide for the exchange of necessary information among the counties, the administration and the department of economic security for the purposes of eligibility determination under this article. Notwithstanding any law to the contrary, a member's medical record shall be released without the member's consent in situations or suspected cases of fraud or abuse relating to the system to an officer of the state's certified Arizona health care cost containment system fraud control unit who has submitted a written request for the medical record.

J. The director shall prescribe rules that specify methods for:

1. The transition of members between system contractors and noncontracting providers.

2. The transfer of members and persons who have been determined eligible from hospitals that do not have contracts to care for such persons.

K. The director shall adopt rules that set forth procedures and standards for use by the system in requesting county long-term care for members or persons determined eligible.

L. To the extent that services are furnished pursuant to this article, and unless otherwise required pursuant to this chapter, a contractor is not subject to title 20.

M. As a condition of the contract with any contractor, the director shall require contract terms as necessary in the judgment of the director to ensure adequate performance and compliance with all applicable federal laws by the contractor of the provisions of each contract executed pursuant to this chapter. Contract provisions required by the director shall include at a minimum the maintenance of deposits, performance bonds, financial reserves or other financial security. The director may waive requirements for the posting of bonds or security for contractors that have posted other security, equal to or greater than that required by the system, with a state agency for the performance of health service contracts if funds would be available from such security for the system on default by the contractor. The director may also adopt rules for the withholding or forfeiture of payments to be made to a contractor by the system for the failure of the contractor to comply with a provision of the contractor's contract with the system or with the adopted rules. The director may also require contract terms allowing the administration to operate a contractor directly under circumstances specified in the contract. The administration shall operate the contractor only as long as it is necessary to assure delivery of uninterrupted care to members enrolled with the contractor and accomplish the orderly transition of those members to other system contractors, or until the contractor reorganizes or otherwise corrects the contract performance failure. The administration shall not operate a contractor unless, before that action, the administration delivers notice to the contractor and provides an opportunity for a hearing in accordance with procedures established by the director. Notwithstanding the provisions of a contract, if the administration finds that the public health, safety or welfare requires emergency action, it may operate as the contractor on notice to the contractor and pending an administrative hearing, which it shall promptly institute.

N. The administration for the sole purpose of matters concerning and directly related to the Arizona health care cost containment system and the Arizona long-term care system is exempt from section 41-192.

O. Notwithstanding subsection F of this section, if the administration determines that according to federal guidelines it is more cost-effective for a person defined as eligible under section 36-2901, paragraph 6, subdivision (a) to be enrolled in a group health insurance plan in which the person is entitled to be enrolled, the administration may pay all of that person's premiums, deductibles, coinsurance and other cost sharing obligations for services covered under section 36-2907. The person shall apply for enrollment in the group health insurance plan as a condition of eligibility under section 36-2901, paragraph 6, subdivision (a).

P. The total amount of state monies that may be spent in any fiscal year by the administration for health care shall not exceed the amount appropriated or authorized by section 35-173 for all health care purposes. This article does not impose a duty on an officer, agent or employee of this state to discharge a responsibility or to create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

Q. Notwithstanding section 36-470, a contractor or program contractor may receive laboratory tests from a laboratory or hospital-based laboratory for a system member enrolled with the contractor or program contractor subject to all of the following requirements:

1. The contractor or program contractor shall provide a written request to the laboratory in a format mutually agreed to by the laboratory and the requesting health plan or program contractor. The request shall include the member's name, the member's plan identification number, the specific test results that are being requested and the time periods and the quality improvement activity that prompted the request.

2. The laboratory data may be provided in written or electronic format based on the agreement between the laboratory and the contractor or program contractor. If there is no contract between the laboratory and the contractor or program contractor, the laboratory shall provide the requested data in a format agreed to by the noncontracted laboratory.

3. The laboratory test results provided to the member's contractor or program contractor shall only be used for quality improvement activities authorized by the administration and health care outcome studies required by the administration. The contractors and program contractors shall maintain strict confidentiality about the test results and identity of the member as specified in contractual arrangements with the administration and pursuant to state and federal law.

4. The administration, after collaboration with the department of health services regarding quality improvement activities, may prohibit the contractors and program contractors from receiving certain test results if the administration determines that a serious potential exists that the results may be used for purposes other than those intended for the quality improvement activities. The department of health services shall consult with the clinical laboratory licensure advisory committee established by section 36-465 before providing recommendations to the administration on certain test results and quality improvement activities.

5. The administration shall provide contracted laboratories and the department of health services with an annual report listing the quality improvement activities that will require laboratory data. The report shall be updated and distributed to the contracting laboratories and the department of health services when laboratory data is needed for new quality improvement activities.

6. A laboratory that complies with a request from the contractor or program contractor for laboratory results pursuant to this section is not subject to civil liability for providing the data to the contractor or program contractor. The administration, the contractor or a program contractor that uses data for reasons other than quality improvement activities is subject to civil liability for this improper use.

R. For the purposes of this section, "quality improvement activities" means those requirements, including health care outcome studies specified in federal law or required by the centers for medicare and medicaid services or the administration, to improve health care outcomes.

§ 36-2903.01 Additional powers and duties; report; definition

A. The director of the Arizona health care cost containment system administration may adopt rules that provide that the system may withhold or forfeit payments to be made to a noncontracting provider by the system if the noncontracting provider fails to comply with this article, the provider agreement or rules that are adopted pursuant to this article and that relate to the specific services rendered for which a claim for payment is made.

B. The director shall:

1. Prescribe uniform forms to be used by all contractors. The rules shall require a written and signed application by the applicant or an applicant's authorized representative, or, if the person is incompetent or incapacitated, a family member or a person acting responsibly for the applicant may obtain a signature or a reasonable facsimile and file the application as prescribed by the administration.

2. Enter into an interagency agreement with the department to establish a streamlined eligibility process to determine the eligibility of all persons defined pursuant to section 36-2901, paragraph 6, subdivision (a). At the administration's option, the interagency agreement may allow the administration to determine the eligibility of certain persons, including those defined pursuant to section 36-2901, paragraph 6, subdivision (a).

3. Enter into an intergovernmental agreement with the department to:

(a) Establish an expedited eligibility and enrollment process for all persons who are hospitalized at the time of application.

(b) Establish performance measures and incentives for the department.

(c) Establish the process for management evaluation reviews that the administration shall perform to evaluate the eligibility determination functions performed by the department.

(d) Establish eligibility quality control reviews by the administration.

(e) Require the department to adopt rules, consistent with the rules adopted by the administration for a hearing process, that applicants or members may use for appeals of eligibility determinations or redeterminations.

(f) Establish the department's responsibility to place sufficient eligibility workers at federally qualified health centers to screen for eligibility and at hospital sites and level one trauma centers to ensure that persons seeking hospital services are screened on a timely basis for eligibility for the system, including a process to ensure that applications for the system can be accepted on a twenty-four hour basis, seven days a week.

(g) Withhold payments based on the allowable sanctions for errors in eligibility determinations or redeterminations or failure to meet performance measures required by the intergovernmental agreement.

(h) Recoup from the department all federal fiscal sanctions that result from the department's inaccurate eligibility determinations. The director may offset all or part of a sanction if the department submits a corrective action plan and a strategy to remedy the error.

4. By rule establish a procedure and time frames for the intake of grievances and requests for hearings, for the continuation of benefits and services during the appeal process and for a grievance process at the contractor level. Notwithstanding sections 41-1092.02, 41-1092.03 and 41-1092.05, the administration shall develop rules to establish the procedure and time frame for the informal resolution of grievances and appeals. A grievance that is not related to a claim for payment of system covered services shall be filed in writing with and received by the administration or the prepaid capitated provider or program contractor not later than sixty days after the date of the adverse action, decision or policy implementation being grieved. A grievance that is related to a claim for payment of system covered services must be filed in writing and received by the administration or the prepaid capitated provider or program contractor within twelve months after the date of service, within twelve months after the date that eligibility is posted or within sixty days after the date of the denial of a timely claim submission, whichever is later. A grievance for the denial of a claim for reimbursement of services may contest the validity of any adverse action, decision, policy implementation or rule that related to or resulted in the full or partial denial of the claim. A policy implementation may be subject to a grievance procedure, but it may not be appealed for a hearing. The administration is not required to participate in a mandatory settlement conference if it is not a real party in interest. In any proceeding before the administration, including a grievance or hearing, persons may represent themselves or be represented by a duly authorized agent who is not charging a fee. A legal entity may be represented by an officer, partner or employee who is specifically authorized by the legal entity to represent it in the particular proceeding.

5. Apply for and accept federal funds available under title XIX of the social security act (P.L. 89-97; 79 Stat. 344; 42 United States Code section 1396 (1980)) in support of the system. The application made by the director pursuant to this paragraph shall be designed to qualify for federal funding primarily on a prepaid capitated basis. Such funds may be used only for the support of persons defined as eligible pursuant to title XIX of the social security act or the approved section 1115 waiver.

6. At least thirty days before the implementation of a policy or a change to an existing policy relating to reimbursement, provide notice to interested parties. Parties interested in receiving notification of policy changes shall submit a written request for notification to the administration.

7. In addition to the cost sharing requirements specified in subsection D, paragraph 4 of this section:

(a) Charge monthly premiums up to the maximum amount allowed by federal law to all populations of eligible persons who may be charged.

(b) Implement this paragraph to the extent permitted under the federal deficit reduction act of 2005 and other federal laws, subject to the approval of federal waiver authority and to the extent that any changes in the cost sharing requirements under this paragraph would permit this state to receive any enhanced federal matching rate.

C. The director is authorized to apply for any federal funds available for the support of programs to investigate and prosecute violations arising from the administration and operation of the system. Available state funds appropriated for the administration and operation of the system may be used as matching funds to secure federal funds pursuant to this subsection.

D. The director may adopt rules or procedures to do the following:

1. Authorize advance payments based on estimated liability to a contractor or a noncontracting provider after the contractor or noncontracting provider has submitted a claim for services and before the claim is ultimately resolved. The rules shall specify that any advance payment shall be conditioned on the execution before payment of a contract with the contractor or noncontracting provider that requires the administration to retain a specified percentage, which shall be at least twenty percent, of the claimed amount as security and that requires repayment to the administration if the administration makes any overpayment.

2. Defer liability, in whole or in part, of contractors for care provided to members who are hospitalized on the date of enrollment or under other circumstances. Payment shall be on a capped fee-for-service basis for services other than hospital services and at the rate established pursuant to subsection G of this section for hospital services or at the rate paid by the health plan, whichever is less.

3. Deputize, in writing, any qualified officer or employee in the administration to perform any act that the director by law is empowered to do or charged with the responsibility of doing, including the authority to issue final administrative decisions pursuant to section 41-1092.08.

4. Notwithstanding any other law, require persons eligible pursuant to section 36-2901, paragraph 6, subdivision (a), section 36-2931 and section 36-2981, paragraph 6 to be financially responsible for any cost sharing requirements established in a state plan or a section 1115 waiver and approved by the centers for medicare and medicaid services. Cost sharing requirements may include copayments, coinsurance, deductibles, enrollment fees and monthly premiums for enrolled members, including households with children enrolled in the Arizona long-term care system.

E. The director shall adopt rules that further specify the medical care and hospital services that are covered by the system pursuant to section 36-2907.

F. In addition to the rules otherwise specified in this article, the director may adopt necessary rules pursuant to title 41, chapter 6 to carry out this article. Rules adopted by the director pursuant to this subsection shall consider the differences between rural and urban conditions on the delivery of hospitalization and medical care.

G. For inpatient hospital admissions and outpatient hospital services on and after March 1, 1993, the administration shall adopt rules for the reimbursement of hospitals according to the following procedures:

1. For inpatient hospital stays from March 1, 1993 through September 30, 2014, the administration shall use a prospective tiered per diem methodology, using hospital peer groups if analysis shows that cost differences can be attributed to independently definable features that hospitals within a peer group share. In peer grouping the administration may consider such factors as length of stay differences and labor market variations. If there are no cost differences, the administration shall implement a stop loss-stop gain or similar mechanism. Any stop loss-stop gain or similar mechanism shall ensure that the tiered per diem rates assigned to a hospital do not represent less than ninety percent of its 1990 base year costs or more than one hundred ten percent of its 1990 base year costs, adjusted by an audit factor, during the period of March 1, 1993 through September 30, 1994. The tiered per diem rates set for hospitals shall represent no less than eighty-seven and one-half percent or more than one hundred twelve and one-half percent of its 1990 base year costs, adjusted by an audit factor, from October 1, 1994 through September 30, 1995 and no less than eighty-five percent or more than one hundred fifteen percent of its 1990 base year costs, adjusted by an audit factor, from October 1, 1995 through September 30, 1996. For the periods after September 30, 1996 no stop loss-stop gain or similar mechanisms shall be in effect. An adjustment in the stop loss-stop gain percentage may be made to ensure that total payments do not increase as a result of this provision. If peer groups are used, the administration shall establish initial peer group designations for each hospital before implementation of the per diem system. The administration may also use a negotiated rate methodology. The tiered per diem methodology may include separate consideration for specialty hospitals that limit their provision of services to specific patient populations, such as rehabilitative patients or children. The initial per diem rates shall be based on hospital claims and encounter data for dates of service November 1, 1990 through October 31, 1991 and processed through May of 1992. The administration may also establish a separate reimbursement methodology for claims with extraordinarily high costs per day that exceed thresholds established by the administration.

2. For rates effective on October 1, 1994, and annually through September 30, 2011, the administration shall adjust tiered per diem payments for inpatient hospital care by the data resources incorporated market basket index for prospective payment system hospitals. For rates effective beginning on October 1, 1999, the administration shall adjust payments to reflect changes in length of stay for the maternity and nursery tiers.

3. Through June 30, 2004, for outpatient hospital services, the administration shall reimburse a hospital by applying a hospital specific outpatient cost-to-charge ratio to the covered charges. Beginning on July 1, 2004 through June 30, 2005, the administration shall reimburse a hospital by applying a hospital specific outpatient cost-to-charge ratio to covered charges. If the hospital increases its charges for outpatient services filed with the Arizona department of health services pursuant to chapter 4, article 3 of this title, by more than 4.7 percent for dates of service effective on or after July 1, 2004, the hospital specific cost-to-charge ratio will be reduced by the amount that it exceeds 4.7 percent. If charges exceed 4.7 percent, the effective date of the increased charges will be the effective date of the adjusted Arizona health care cost containment system cost-to-charge ratio. The administration shall develop the methodology for a capped fee-for-service schedule and a statewide cost-to-charge ratio. Any covered outpatient service not included in the capped fee-for-service schedule shall be reimbursed by applying the statewide cost-to-charge ratio that is based on the services not included in the capped fee-for-service schedule. Beginning on July 1, 2005, the administration shall reimburse clean claims with dates of service on or after July 1, 2005, based on the capped fee-for-service schedule or the statewide cost-to-charge ratio established pursuant to this paragraph. The administration may make additional adjustments to the outpatient hospital rates established pursuant to this section based on other factors, including the number of beds in the hospital, specialty services available to patients and the geographic location of the hospital.

4. Except if submitted under an electronic claims submission system, a hospital bill is considered received for purposes of this paragraph on initial receipt of the legible, error-free claim form by the administration if the claim includes the following error-free documentation in legible form:

(a) An admission face sheet.

(b) An itemized statement.

(c) An admission history and physical.

(d) A discharge summary or an interim summary if the claim is split.

(e) An emergency record, if admission was through the emergency room.

(f) Operative reports, if applicable.

(g) A labor and delivery room report, if applicable.

Payment received by a hospital from the administration pursuant to this subsection or from a contractor either by contract or pursuant to section 36-2904, subsection I is considered payment by the administration or the contractor of the administration's or contractor's liability for the hospital bill. A hospital may collect any unpaid portion of its bill from other third-party payors or in situations covered by title 33, chapter 7, article 3.

5. For services rendered on and after October 1, 1997, the administration shall pay a hospital's rate established according to this section subject to the following:

(a) If the hospital's bill is paid within thirty days of the date the bill was received, the administration shall pay ninety-nine percent of the rate.

(b) If the hospital's bill is paid after thirty days but within sixty days of the date the bill was received, the administration shall pay one hundred percent of the rate.

(c) If the hospital's bill is paid any time after sixty days of the date the bill was received, the administration shall pay one hundred percent of the rate plus a fee of one percent per month for each month or portion of a month following the sixtieth day of receipt of the bill until the date of payment.

6. In developing the reimbursement methodology, if a review of the reports filed by a hospital pursuant to section 36-125.04 indicates that further investigation is considered necessary to verify the accuracy of the information in the reports, the administration may examine the hospital's records and accounts related to the reporting requirements of section 36-125.04. The administration shall bear the cost incurred in connection with this examination unless the administration finds that the records examined are significantly deficient or incorrect, in which case the administration may charge the cost of the investigation to the hospital examined.

7. Except for privileged medical information, the administration shall make available for public inspection the cost and charge data and the calculations used by the administration to determine payments under the tiered per diem system, provided that individual hospitals are not identified by name. The administration shall make the data and calculations available for public inspection during regular business hours and shall provide copies of the data and calculations to individuals requesting such copies within thirty days of receipt of a written request. The administration may charge a reasonable fee for the provision of the data or information.

8. The prospective tiered per diem payment methodology for inpatient hospital services shall include a mechanism for the prospective payment of inpatient hospital capital related costs. The capital payment shall include hospital specific and statewide average amounts. For tiered per diem rates beginning on October 1, 1999, the capital related cost component is frozen at the blended rate of forty percent of the hospital specific capital cost and sixty percent of the statewide average capital cost in effect as of January 1, 1999 and as further adjusted by the calculation of tier rates for maternity and nursery as prescribed by law. Through September 30, 2011, the administration shall adjust the capital related cost component by the data resources incorporated market basket index for prospective payment system hospitals.

9. For graduate medical education programs:

(a) Beginning September 30, 1997, the administration shall establish a separate graduate medical education program to reimburse hospitals that had graduate medical education programs that were approved by the administration as of October 1, 1999. The administration shall separately account for monies for the graduate medical education program based on the total reimbursement for graduate medical education reimbursed to hospitals by the system in federal fiscal year 1995-1996 pursuant to the tiered per diem methodology specified in this section. The graduate medical education program reimbursement shall be adjusted annually by the increase or decrease in the index published by the global insight hospital market basket index for prospective hospital reimbursement. Subject to legislative appropriation, on an annual basis, each qualified hospital shall receive a single payment from the graduate medical education program that is equal to the same percentage of graduate medical education reimbursement that was paid by the system in federal fiscal year 1995-1996. Any reimbursement for graduate medical education made by the administration shall not be subject to future settlements or appeals by the hospitals to the administration. The monies available under this subdivision shall not exceed the fiscal year 2005-2006 appropriation adjusted annually by the increase or decrease in the index published by the global insight hospital market basket index for prospective hospital reimbursement, except for monies distributed for expansions pursuant to subdivision (b) of this paragraph.

(b) The monies available for graduate medical education programs pursuant to this subdivision shall not exceed the fiscal year 2006-2007 appropriation adjusted annually by the increase or decrease in the index published by the global insight hospital market basket index for prospective hospital reimbursement. Graduate medical education programs eligible for such reimbursement are not precluded from receiving reimbursement for funding under subdivision (c) of this paragraph. Beginning July 1, 2006, the administration shall distribute any monies appropriated for graduate medical education above the amount prescribed in subdivision (a) of this paragraph in the following order or priority:

(i) For the direct costs to support the expansion of graduate medical education programs established before July 1, 2006 at hospitals that do not receive payments pursuant to subdivision (a) of this paragraph. These programs must be approved by the administration.

(ii) For the direct costs to support the expansion of graduate medical education programs established on or before October 1, 1999. These programs must be approved by the administration.

(c) The administration shall distribute to hospitals any monies appropriated for graduate medical education above the amount prescribed in subdivisions (a) and (b) of this paragraph for the following purposes:

(i) For the direct costs of graduate medical education programs established or expanded on or after July 1, 2006. These programs must be approved by the administration.

(ii) For a portion of additional indirect graduate medical education costs for programs that are located in a county with a population of less than five hundred thousand persons at the time the residency position was created or for a residency position that includes a rotation in a county with a population of less than five hundred thousand persons at the time the residency position was established. These programs must be approved by the administration.

(d) The administration shall develop, by rule, the formula by which the monies are distributed.

(e) Each graduate medical education program that receives funding pursuant to subdivision (b) or (c) of this paragraph shall identify and report to the administration the number of new residency positions created by the funding provided in this paragraph, including positions in rural areas. The program shall also report information related to the number of funded residency positions that resulted in physicians locating their practices in this state. The administration shall report to the joint legislative budget committee by February 1 of each year on the number of new residency positions as reported by the graduate medical education programs.

(f) Local, county and tribal governments and any university under the jurisdiction of the Arizona board of regents may provide monies in addition to any state general fund monies appropriated for graduate medical education in order to qualify for additional matching federal monies for providers, programs or positions in a specific locality and costs incurred pursuant to a specific contract between the administration and providers or other entities to provide graduate medical education services as an administrative activity. Payments by the administration pursuant to this subdivision may be limited to those providers designated by the funding entity and may be based on any methodology deemed appropriate by the administration, including replacing any payments that might otherwise have been paid pursuant to subdivision (a), (b) or (c) of this paragraph had sufficient state general fund monies or other monies been appropriated to fully fund those payments. These programs, positions, payment methodologies and administrative graduate medical education services must be approved by the administration and the centers for medicare and medicaid services. The administration shall report to the president of the senate, the speaker of the house of representatives and the director of the joint legislative budget committee on or before July 1 of each year on the amount of money contributed and number of residency positions funded by local, county and tribal governments, including the amount of federal matching monies used.

(g) Any funds appropriated but not allocated by the administration for subdivision (b) or (c) of this paragraph may be reallocated if funding for either subdivision is insufficient to cover appropriate graduate medical education costs.

10. Notwithstanding section 41-1005, subsection A, paragraph 9, the administration shall adopt rules pursuant to title 41, chapter 6 establishing the methodology for determining the prospective tiered per diem payments that are in effect through September 30, 2014.

11. For inpatient hospital services rendered on or after October 1, 2011, the prospective tiered per diem payment rates are permanently reset to the amounts payable for those services as of October 1, 2011 pursuant to this subsection.

12. The administration shall adopt a diagnosis-related group based hospital reimbursement methodology consistent with title XIX of the social security act for inpatient dates of service on and after October 1, 2014. The administration may make additional adjustments to the inpatient hospital rates established pursuant to this section for hospitals that are publicly operated or based on other factors, including the number of beds in the hospital, the specialty services available to patients, the geographic location and diagnosis-related group codes that are made publicly available by the hospital pursuant to section 36-437. The administration may also provide additional reimbursement for extraordinarily high cost cases that exceed a threshold above the standard payment. The administration may also establish a separate payment methodology for specific services or hospitals serving unique populations.

H. The director may adopt rules that specify enrollment procedures, including notice to contractors of enrollment. The rules may provide for varying time limits for enrollment in different situations. The administration shall specify in contract when a person who has been determined eligible will be enrolled with that contractor and the date on which the contractor will be financially responsible for health and medical services to the person.

I. The administration may make direct payments to hospitals for hospitalization and medical care provided to a member in accordance with this article and rules. The director may adopt rules to establish the procedures by which the administration shall pay hospitals pursuant to this subsection if a contractor fails to make timely payment to a hospital. Such payment shall be at a level determined pursuant to section 36-2904, subsection H or I. The director may withhold payment due to a contractor in the amount of any payment made directly to a hospital by the administration on behalf of a contractor pursuant to this subsection.

J. The director shall establish a special unit within the administration for the purpose of monitoring the third-party payment collections required by contractors and noncontracting providers pursuant to section 36-2903, subsection B, paragraph 10 and subsection F and section 36-2915, subsection E. The director shall determine by rule:

1. The type of third-party payments to be monitored pursuant to this subsection.

2. The percentage of third-party payments that is collected by a contractor or noncontracting provider and that the contractor or noncontracting provider may keep and the percentage of such payments that the contractor or noncontracting provider may be required to pay to the administration. Contractors and noncontracting providers must pay to the administration one hundred percent of all third-party payments that are collected and that duplicate administration fee-for-service payments. A contractor that contracts with the administration pursuant to section 36-2904, subsection A may be entitled to retain a percentage of third-party payments if the payments collected and retained by a contractor are reflected in reduced capitation rates. A contractor may be required to pay the administration a percentage of third-party payments that are collected by a contractor and that are not reflected in reduced capitation rates.

K. The administration shall establish procedures to apply to the following if a provider that has a contract with a contractor or noncontracting provider seeks to collect from an individual or financially responsible relative or representative a claim that exceeds the amount that is reimbursed or should be reimbursed by the system:

1. On written notice from the administration or oral or written notice from a member that a claim for covered services may be in violation of this section, the provider that has a contract with a contractor or noncontracting provider shall investigate the inquiry and verify whether the person was eligible for services at the time that covered services were provided. If the claim was paid or should have been paid by the system, the provider that has a contract with a contractor or noncontracting provider shall not continue billing the member.

2. If the claim was paid or should have been paid by the system and the disputed claim has been referred for collection to a collection agency or referred to a credit reporting bureau, the provider that has a contract with a contractor or noncontracting provider shall:

(a) Notify the collection agency and request that all attempts to collect this specific charge be terminated immediately.

(b) Advise all credit reporting bureaus that the reported delinquency was in error and request that the affected credit report be corrected to remove any notation about this specific delinquency.

(c) Notify the administration and the member that the request for payment was in error and that the collection agency and credit reporting bureaus have been notified.

3. If the administration determines that a provider that has a contract with a contractor or noncontracting provider has billed a member for charges that were paid or should have been paid by the administration, the administration shall send written notification by certified mail or other service with proof of delivery to the provider that has a contract with a contractor or noncontracting provider stating that this billing is in violation of federal and state law. If, twenty-one days or more after receiving the notification, a provider that has a contract with a contractor or noncontracting provider knowingly continues billing a member for charges that were paid or should have been paid by the system, the administration may assess a civil penalty in an amount equal to three times the amount of the billing and reduce payment to the provider that has a contract with a contractor or noncontracting provider accordingly. Receipt of delivery signed by the addressee or the addressee's employee is prima facie evidence of knowledge. Civil penalties collected pursuant to this subsection shall be deposited in the state general fund. Section 36-2918, subsections C, D and F, relating to the imposition, collection and enforcement of civil penalties, apply to civil penalties imposed pursuant to this paragraph.

L. The administration may conduct postpayment review of all claims paid by the administration and may recoup any monies erroneously paid. The director may adopt rules that specify procedures for conducting postpayment review. A contractor may conduct a postpayment review of all claims paid by the contractor and may recoup monies that are erroneously paid.

M. Subject to title 41, chapter 4, article 4, the director or the director's designee may employ and supervise personnel necessary to assist the director in performing the functions of the administration.

N. The administration may contract with contractors for obstetrical care who are eligible to provide services under title XIX of the social security act.

O. Notwithstanding any other law, on federal approval the administration may make disproportionate share payments to private hospitals, county operated hospitals, including hospitals owned or leased by a special health care district, and state operated institutions for mental disease beginning October 1, 1991 in accordance with federal law and subject to legislative appropriation. If at any time the administration receives written notification from federal authorities of any change or difference in the actual or estimated amount of federal funds available for disproportionate share payments from the amount reflected in the legislative appropriation for such purposes, the administration shall provide written notification of such change or difference to the president and the minority leader of the senate, the speaker and the minority leader of the house of representatives, the director of the joint legislative budget committee, the legislative committee of reference and any hospital trade association within this state, within three working days not including weekends after receipt of the notice of the change or difference. In calculating disproportionate share payments as prescribed in this section, the administration may use either a methodology based on claims and encounter data that is submitted to the administration from contractors or a methodology based on data that is reported to the administration by private hospitals and state operated institutions for mental disease. The selected methodology applies to all private hospitals and state operated institutions for mental disease qualifying for disproportionate share payments.

P. Disproportionate share payments made pursuant to subsection O of this section include amounts for disproportionate share hospitals designated by political subdivisions of this state, tribal governments and universities under the jurisdiction of the Arizona board of regents. Subject to the approval of the centers for medicare and medicaid services, any amount of federal funding allotted to this state pursuant to section 1923(f) of the social security act and not otherwise spent under subsection O of this section shall be made available for distribution pursuant to this subsection. Political subdivisions of this state, tribal governments and universities under the jurisdiction of the Arizona board of regents may designate hospitals eligible to receive disproportionate share payments in an amount up to the limit prescribed in section 1923(g) of the social security act if those political subdivisions, tribal governments or universities provide sufficient monies to qualify for the matching federal monies for the disproportionate share payments.

Q. Notwithstanding any law to the contrary, the administration may receive confidential adoption information to determine whether an adopted child should be terminated from the system.

R. The adoption agency or the adoption attorney shall notify the administration within thirty days after an eligible person receiving services has placed that person's child for adoption.

S. If the administration implements an electronic claims submission system, it may adopt procedures pursuant to subsection G of this section requiring documentation different than prescribed under subsection G, paragraph 4 of this section.

T. In addition to any requirements adopted pursuant to subsection D, paragraph 4 of this section, notwithstanding any other law, subject to approval by the centers for medicare and medicaid services, beginning July 1, 2011, members eligible pursuant to section 36-2901, paragraph 6, subdivision (a), section 36-2931 and section 36-2981, paragraph 6 shall pay the following:

1. A monthly premium of fifteen dollars, except that the total monthly premium for an entire household shall not exceed sixty dollars.

2. A copayment of five dollars for each physician office visit.

3. A copayment of ten dollars for each urgent care visit.

4. A copayment of thirty dollars for each emergency department visit.

U. Subject to the approval of the centers for medicare and medicaid services, political subdivisions of this state, tribal governments and any university under the jurisdiction of the Arizona board of regents may provide to the Arizona health care cost containment system administration monies in addition to any state general fund monies appropriated for critical access hospitals in order to qualify for additional federal monies. Any amount of federal monies received by this state pursuant to this subsection shall be distributed as supplemental payments to critical access hospitals.

V. For the purposes of this section, "disproportionate share payment" means a payment to a hospital that serves a disproportionate share of low-income patients as described by 42 United States Code section 1396r-4.

§ 36-2903.02 Quality of health care monitoring standard; development; adoption; use; additional monitoring; costs

A. The administration shall develop by rule a standard for contractors to use to monitor the quality of health care received by members. Each contractor shall adopt and use the standard developed by the administration.

B. The director shall periodically determine whether each contractor has properly adopted and implemented the quality of health care monitoring standard. If the director determines that a contractor has not done so, the director shall undertake additional special efforts to monitor and assess the quality of health care provided by that contractor for as long as the director deems necessary. The director shall determine the cost incurred in undertaking such special efforts and shall deduct that amount each month from any payment owed to that contractor for as long as the special efforts continue.

§ 36-2903.03 United States citizenship and qualified alien requirements for eligibility; report; definition

A. A person who is applying for eligibility under this chapter shall provide verification of United States citizenship or documented verification of qualified alien status. Beginning July 1, 2006, an applicant who is applying for services pursuant to this chapter shall provide satisfactory documentary evidence of citizenship or qualified alien status as required by the federal deficit reduction act of 2005 (P.L. 109-171; 120 Stat. 4; 42 United States Code section 1396b) or any other applicable federal law or regulation.

B. A qualified alien may apply for eligibility pursuant to section 36-2901, paragraph 6, subdivision (a) and, if otherwise eligible for title XIX, may receive all services pursuant to section 36-2907 if the qualified alien meets at least one of the following requirements:

1. Is designated as one of the exception groups under 8 United States Code section 1613(b).

2. Has been a qualified alien for at least five years.

3. Has been continuously present in the United States since August 21, 1996.

C. Notwithstanding any other law, persons who were residing in the United States under color of law on or before August 21, 1996, and who were receiving services under this article based on eligibility criteria established under the supplemental security income program, may apply for state funded services and, if otherwise eligible for supplemental security income-medical assistance only coverage except for United States citizenship or qualified alien requirements, may be enrolled with the system and receive all services pursuant to section 36-2907.

D. A person who is a qualified alien who does not meet the requirements of subsection B of this section or who is a noncitizen who does not claim and provide verification of qualified alien status may apply for title XIX eligibility under section 36-2901, paragraph 6, subdivision (a) and, if otherwise eligible for title XIX, may receive only emergency services pursuant to section 1903(v) of the social security act.

E. In determining the eligibility for all qualified aliens pursuant to this chapter, the income and resources of any person who executed an affidavit of support pursuant to section 213A of the immigration and nationality act on behalf of the qualified alien and the income and resources of the spouse, if any, of the sponsoring individual shall be counted at the time of application and for the redetermination of eligibility for the duration of the attribution period as specified in federal law.

F. A person who is a qualified alien or a noncitizen and who is not eligible for title XIX may receive only emergency services.

G. On or before September 30 of each year, the administration shall submit a report to the governor, the president of the senate, the speaker of the house of representatives and the staff director of the joint legislative budget committee that includes the following information:

1. The number of individuals for whom the administration verified immigration status using the systematic alien verification for entitlements program administered by the United States citizenship and immigration services.

2. The number of documents that were discovered to be fraudulent by using the systematic alien verification for entitlements program.

3. A list of the types of fraudulent documents discovered.

4. The number of citizens of the United States who were referred by the administration for prosecution pursuant to violations of state or federal law and the number of individuals referred by the administration for prosecution who were not citizens.

H. The administration shall provide copies of the report to the secretary of state and the director of the Arizona state library, archives and public records.

I. For purposes of this section, "qualified alien" means an individual who is one of the following:

1. Defined as a qualified alien under 8 United States Code section 1641.

2. Defined as a qualified alien by the attorney general of the United States under the authority of Public Law 104-208, section 501.

3. An Indian described in 8 United States Code section 1612(b)(2)(E).

§ 36-2903.04 Prior wards of the state; annual eligibility renewal; residency determination

A. The administration shall determine the eligibility of any eligible person as defined in section 36-2901, paragraph 6, subdivision (a), item (iii). Subject to the approval of the centers for medicare and medicaid services, the administration or the administration's designee shall annually renew on an automatic basis the eligibility of a person who is determined eligible pursuant to section 36-2901, paragraph 6, subdivision (a), item (iii) without requiring additional information from the person until the person reaches twenty-six years of age, unless the person notifies the administration that the person either:

1. Moved out of this state.

2. May qualify for a different eligibility category.

B. If a person's eligibility in a different eligibility category ends, the administration shall automatically transfer the person back to the eligibility category specified in section 36-2901, paragraph 6, subdivision (a), item (iii) without disruption in medical coverage.

C. During the person's eligibility period, the administration or its designee may use reliable information available to the agency to determine the person's state residency, including through an electronic data match.

§ 36-2903.05 Uniform application and eligibility process

A. The director shall adopt rules to prescribe a uniform application and eligibility process for participants in the premium sharing program, the children's health insurance program and healthcare group.

B. The administration shall coordinate application screening for the programs prescribed in subsection A and facilitate the transfer of a member from one program to another program for which the member qualifies.

§ 36-2903.06 Cooperation with Arizona-Mexico commission

The administration shall cooperate with the Arizona-Mexico commission in the governor's office and with researchers at universities in this state to collect data and conduct projects in the United States and Mexico on issues that are within the scope of the administration's duties and that relate to quality of life, trade and economic development in this state in a manner that will help the Arizona-Mexico commission to assess and enhance the economic competitiveness of this state and of the Arizona-Mexico region.

§ 36-2903.07 Trauma and emergency services fund

(Caution: 1998 Prop. 105 applies)

A. The trauma and emergency services fund is established consisting of monies deposited pursuant to section 5-601.02(H)(3)(b)(ii) and interest earned on those monies. The Arizona health care cost containment system administration shall administer the fund. The fund is not subject to appropriation, and expenditures from the fund are not subject to outside approval notwithstanding any statutory provision to the contrary.

B. Monies received pursuant to section 5-601.02 shall be deposited directly with the trauma and emergency services fund. On notice from the administration, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. No monies in the trauma and emergency services fund shall revert to or be deposited in any other fund, including the state general fund. Monies in the trauma and emergency services fund are exempt from the provisions of section 35-190 relating to the lapsing of appropriations. Monies provided from the trauma and emergency services fund shall supplement, not supplant, existing monies.

C. Monies in the fund shall only be used to reimburse hospitals in Arizona for unrecovered trauma center readiness costs and unrecovered emergency services costs as provided for in this section.

D. For purposes of this section:

1. "Trauma center readiness costs" means clinical, professional and operational costs that are incurred by a level I trauma center and that are necessary for the provision of level I trauma care on a twenty-four hour, seven days per week basis. Trauma center readiness costs include only those administrative and overhead costs that are directly associated with providing level I trauma care.

2. "Emergency services costs" means clinical, professional and operational costs that are necessarily incurred by a hospital in providing emergency services.

3. "Unrecovered" means the difference between the costs incurred by a hospital in providing the service and the amount that the hospital has been paid for providing the service.

E. Within six months of the effective date of this section, the administration shall promulgate rules pursuant to Arizona Revised Statutes title 42, chapter 6, except that the rules shall not be subject to article 5 of that chapter. The rules shall set forth:

1. A methodology to determine Arizona hospitals' unrecovered trauma center readiness costs and unrecovered emergency services costs;

2. A procedure to distribute all monies from the trauma and emergency services fund to Arizona hospitals in proportion to those hospitals' unrecovered trauma center readiness costs and unrecovered emergency services costs.

F. The administration shall distribute all monies from the trauma and emergency services fund to Arizona hospitals in accordance with the rules promulgated pursuant to this section.

§ 36-2903.08 AHCCCS uncompensated care; hospital assessments; reports

A. On or before October 1 each year, the Arizona health care cost containment system administration shall report to the speaker of the house of representatives, the president of the senate, the chairpersons of the appropriations committees of the house of representatives and the senate and the directors of the joint legislative budget committee and the governor's office of strategic planning and budgeting on the change in uncompensated hospital costs experienced by hospitals in this state and hospital profitability during the previous fiscal year.

B. On or before August 1 each year, the Arizona health care cost containment system administration shall report to the speaker of the house of representatives, the president of the senate, the chairpersons of the appropriations committees of the house of representatives and the senate and the directors of the joint legislative budget committee and the governor's office of strategic planning and budgeting the following:

1. The aggregate amount each hospital contributed for the hospital assessments authorized pursuant to sections 36-2901.08 and 36-2999.72 in the previous fiscal year.

2. The aggregate amount of estimated payments each hospital received from the coverage and directed payments funded by the assessment.

§ 36-2903.09 Waivers; annual submittal; definitions

A. On or before March 30 of each year, the director shall apply to the centers for medicare and medicaid services for waivers or amendments to the current section 1115 waiver to allow this state to:

1. Institute a work requirement for all able-bodied adults receiving services pursuant to this article. The work requirement shall:

(a) Require an eligible person to either:

(i) Become employed.

(ii) Actively seek employment, which would be verified by the department.

(iii) Attend school or a job training program, or both, at least twenty hours per week.

(b) Require an eligible person to verify on a monthly basis compliance with requirements of subdivision (a) of this paragraph and any change in family income.

(c) Require the administration to confirm an eligible person's change in family income as reported under subdivision (b) of this paragraph and redetermine the person's eligibility under this article.

(d) Allow the administration to ban an eligible person from enrollment for one year if the eligible person knowingly failed to report a change in family income or made a false statement regarding compliance with the requirements of subdivision (a) of this paragraph.

(e) Allow for an exemption if a person meets any of the following conditions:

(i) Is at least nineteen years of age but is still attending high school as a full-time student.

(ii) Is the sole caregiver of a family member who is under six years of age.

(iii) Is currently receiving temporary or permanent long-term disability benefits from a private insurer or from the government.

(iv) Has been determined to be physically or mentally unfit for employment by a health care professional in accordance with rules adopted by the administration.

2. Place on able-bodied adults a lifetime limit of five years of benefits under this article that begins on the effective date of the waiver or amendment to the current section 1115 waiver and does not include any previous time a person received benefits under this article. The lifetime limit under this paragraph does not include any time during which the person meets any of the following conditions:

(a) Is pregnant.

(b) Is the sole caregiver of a family member who is under six years of age.

(c) Is currently receiving temporary or permanent long-term disability benefits from a private insurer or from the government.

(d) Is at least nineteen years of age but is still attending high school as a full-time student.

(e) Is employed full time but continues to meet the income eligibility requirements under this article.

(f) Is enrolled before reaching nineteen years of age.

(g) Is an eligible person as defined in section 36-2901, paragraph 6, subdivision (a), item (iii).

3. Develop and impose meaningful cost-sharing requirements to deter both:

(a) The nonemergency use of emergency departments.

(b) The use of ambulance services for nonemergency transportation or when it is not medically necessary.

B. Subsection A of this section does not include or apply to American Indians or Alaska natives who are eligible for services under this article, through the Indian health service or through a tribal or urban Indian health program pursuant to the Indian self-determination and education assistance act (25 United States Code chapter 46) and the Indian health care improvement act (25 United States Code chapter 18).

C. In any year, the director shall apply under subsection A of this section for only the waivers or amendments to the current section 1115 waiver that have not been approved and are not in effect.

D. On or before April 1 of each year, the director shall submit a letter confirming the submission of the waiver requests required under subsection A of this section to the governor, the president of the senate and the speaker of the house of representatives.

E. For the purposes of this section:

1. "Able-bodied" means an individual who is physically and mentally capable of working.

2. "Adult" means an individual who is at least nineteen years of age.

§ 36-2903.10 AHCCCS contractors; prescription monitoring; controlled substances; review

A. A contractor shall intervene if a member has ten or more prescriptions for controlled substances within a three-month period.

B. A contractor shall monitor prescriptions that are filled by members and shall intervene with both the prescriber and the member when excessive amounts of controlled substances are used. The contractor shall direct cases involving excessive controlled substance use to the system medical director for review.

§ 36-2903.11 AHCCCS contractors; emergency department use; annual reporting

A. A contractor shall intervene if a member inappropriately seeks care at a hospital emergency department four times or more in a six-month period to educate the member regarding the proper use of emergency services.

B. A contractor shall report to the administration in a manner prescribed by the administration the number of times the contractor intervenes with members pursuant to this section.

C. On or before December 1, 2017 and on or before December 1 of each year thereafter, the administration shall report to the directors of the joint legislative budget committee and the governor's office of strategic planning and budgeting on the use of emergency departments for nonemergency purposes by members.

§ 36-2903.12 Hospital charge master transparency; joint annual report

On or before January 2, 2020 and each year thereafter, the director of the Arizona health care cost containment system administration and the director of the department of health services shall submit a joint report on hospital charge master transparency to the governor, the speaker of the house of representatives and the president of the senate and shall provide a copy to the secretary of state. The report shall do all of the following:

1. Summarize the current charge master reporting process and hospital billed charges compared to costs.

2. Provide examples of how charge masters or hospital prices are reported and used in other states.

3. Include recommendations to improve this state's use of hospital charge master information, including reporting and oversight changes.

§ 36-2903.13 Inpatient psychiatric treatment; annual report

A. On or before January 2, 2020 and each year thereafter, the director of the Arizona health care cost containment system administration shall submit a report to the director of the joint legislative budget committee on the availability of inpatient psychiatric treatment both for adults and for children and adolescents who receive services from the regional behavioral health authorities. The report shall include all of the following information:

1. The total number of inpatient psychiatric treatment beds available and the occupancy rate for those beds.

2. Expenditures on inpatient psychiatric treatment.

3. The total number of individuals in this state who are sent out of state for inpatient psychiatric treatment.

4. The prevalence of psychiatric boarding or holding psychiatric patients in emergency rooms for at least twenty-four hours before transferring the patients to a psychiatric facility.

B. The report shall provide the information specified in subsection A of this section separately for adults who are at least twenty-one years of age and for children and adolescents who are twenty years of age or younger.

§ 36-2903.14 Personal health information; duplicative paperwork requirements

A. The administration shall require its contracted housing program administrators to review and minimize duplicative paperwork requirements for and limit the number of contractors and entities that unnecessarily receive personal health information of members with serious mental illness who are receiving services pursuant to this chapter or chapter 34 of this title.

B. Contracted housing program administrators may not sell or otherwise share any member's personal health information, unless authorized or required by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E).

§ 36-2903.15 Peer specialists; qualifications; oversight; training; annual report

A. The administration shall develop and implement processes to monitor its contractors' oversight of peer specialists to ensure that the peer specialists meet qualifications and receive the required supervision and training.

B. Beginning October 1, 2025, in addition to any other qualifications, peer specialists shall complete training that is developed by the administration and that includes psychosis-specific content, including anosognosia.

C. On or before November 1, 2024 and each November 1 thereafter, the administration shall provide an annual report to the governor, the president of the senate and the speaker of the house of representatives on the development, implementation and monitoring processes required by this section.

§ 36-2903.16 Patients with a designation of serious mental illness; discharge; list of medications

A health care institution that provides inpatient behavioral health services to a patient with a designation of serious mental illness by the administration shall provide, on the patient's discharge, an accurate list of all necessary medications, including psychiatric medications and all other prescription medications and over-the-counter medications, that are to be taken regularly or to be taken as needed. The discharging health care institution shall provide the list to the patient or the patient's representative and to a designated person from the residential care institution or health care institution that is to provide outpatient behavioral health services to the patient as identified by the discharging health care institution that provided inpatient behavioral health services to the patient.

§ 36-2903.17 Administration; continuous glucose monitors; benefit status; coverage criteria; posting

The administration shall:

1. Require contractors to provide to members continuous glucose monitors through both a pharmacy benefit and a durable medical equipment benefit and to allow a member's prescribing provider to determine the appropriate option for the member.

2. Update the coverage criteria for continuous glucose monitors to align with the current standards of care. The criteria for coverage shall be consistent regardless of whether a member receives the continuous glucose monitor as a pharmacy benefit or a durable medical equipment benefit.

3. Post the criteria for the coverage of continuous glucose monitors as a standalone document that is easily accessible on the administration's public website.

§ 36-2904 Prepaid capitation coverage; requirements; long-term care; dispute resolution; award of contracts; notification; report

A. The administration may expend public funds appropriated for the purposes of this article and shall execute prepaid capitated health services contracts, pursuant to section 36-2906, with group disability insurers, hospital and medical service corporations, health care services organizations and any other appropriate public or private persons, including county-owned and operated facilities, for health and medical services to be provided under contract with contractors. The administration may assign liability for eligible persons and members through contractual agreements with contractors. If there is an insufficient number of qualified bids for prepaid capitated health services contracts for the provision of hospitalization and medical care within a county, the director may:

1. Execute discount advance payment contracts, pursuant to section 36-2906 and subject to section 36-2903.01, for hospital services.

2. Execute capped fee-for-service contracts for health and medical services, other than hospital services. Any capped fee-for-service contract shall provide for reimbursement at a level of not to exceed a capped fee-for-service schedule adopted by the administration.

B. During any period in which services are needed and no contract exists, the director may do either of the following:

1. Pay noncontracting providers for health and medical services, other than hospital services, on a capped fee-for-service basis for members and persons who are determined eligible. However, the state shall not pay any amount for services that exceeds a maximum amount set forth in a capped fee-for-service schedule adopted by the administration.

2. Pay a hospital subject to the reimbursement level limitation prescribed in section 36-2903.01.

If health and medical services are provided in the absence of a contract, the director shall continue to attempt to procure by the bid process as provided in section 36-2906 contracts for such services as specified in this subsection.

C. Payments to contractors shall be made monthly or quarterly and may be subject to contract provisions requiring the retention of a specified percentage of the payment by the director, a reserve fund or other contract provisions by which adjustments to the payments are made based on utilization efficiency, including incentives for maintaining quality care and minimizing unnecessary inpatient services. Reserve funds withheld from contractors shall be distributed to contractors who meet performance standards established by the director. Any reserve fund established pursuant to this subsection shall be established as a separate account within the Arizona health care cost containment system fund.

D. Except as prescribed in subsection E of this section, a member defined as eligible pursuant to section 36-2901, paragraph 6, subdivision (a) may select, to the extent practicable as determined by the administration, from among the available contractors of hospitalization and medical care and may select a primary care physician or primary care practitioner from among the primary care physicians and primary care practitioners participating in the contract in which the member is enrolled. The administration shall provide reimbursement only to entities that have a provider agreement with the administration and that have agreed to the contractual requirements of that agreement. Except as provided in sections 36-2908 and 36-2909, the system shall only provide reimbursement for any health or medical services or costs of related services provided by or under referral from the primary care physician or primary care practitioner participating in the contract in which the member is enrolled. The director shall establish requirements as to the minimum time period that a member is assigned to specific contractors in the system.

E. For a member defined as eligible pursuant to section 36-2901, paragraph 6, subdivision (a), item (v) the director shall enroll the member with an available contractor located in the geographic area of the member's residence. The member may select a primary care physician or primary care practitioner from among the primary care physicians or primary care practitioners participating in the contract in which the member is enrolled. The system shall only provide reimbursement for health or medical services or costs of related services provided by or under referral from a primary care physician or primary care practitioner participating in the contract in which the member is enrolled. The director shall establish requirements as to the minimum time period that a member is assigned to specific contractors in the system.

F. If a person who has been determined eligible but who has not yet enrolled in the system receives emergency services, the director shall provide by rule for the enrollment of the person on a priority basis. If a person requires system covered services on or after the date the person is determined eligible for the system but before the date of enrollment, the person is entitled to receive these services in accordance with rules adopted by the director, and the administration shall pay for the services pursuant to section 36-2903.01 or, as specified in contract, with the contractor pursuant to the subcontracted rate or this section.

G. The administration shall not pay claims for system covered services that are initially submitted more than six months after the date of the service for which payment is claimed or after the date that eligibility is posted, whichever date is later, or that are submitted as clean claims more than twelve months after the date of service for which payment is claimed or after the date that eligibility is posted, whichever date is later, except for claims submitted for reinsurance pursuant to section 36-2906, subsection C, paragraph 6. The administration shall not pay claims for system covered services that are submitted by contractors for reinsurance after the time period specified in the contract. The director may adopt rules or require contractual provisions that prescribe requirements and time limits for submittal of and payment for those claims. Notwithstanding any other provision of this article, if a claim that gives rise to a contractor's claim for reinsurance or deferred liability is the subject of an administrative grievance or appeal proceeding or other legal action, the contractor shall have at least sixty days after an ultimate decision is rendered to submit a claim for reinsurance or deferred liability. Contractors that contract with the administration pursuant to subsection A of this section shall not pay claims for system covered services that are initially submitted more than six months after the date of the service for which payment is claimed or after the date that eligibility is posted, whichever date is later, or that are submitted as clean claims more than twelve months after the date of the service for which payment is claimed or after the date that eligibility is posted, whichever date is later. For the purposes of this subsection:

1. "Clean claims" means claims that may be processed without obtaining additional information from the subcontracted provider of care, from a noncontracting provider or from a third party but does not include claims under investigation for fraud or abuse or claims under review for medical necessity.

2. "Date of service" for a hospital inpatient means the date of discharge of the patient.

3. "Submitted" means the date the claim is received by the administration or the prepaid capitated provider, whichever is applicable, as established by the date stamp on the face of the document or other record of receipt.

H. In any county having a population of five hundred thousand or fewer persons, a hospital that executes a subcontract other than a capitation contract with a contractor for the provision of hospital and medical services pursuant to this article shall offer a subcontract to any other contractor providing services to that portion of the county and to any other person that plans to become a contractor in that portion of the county. If such a hospital executes a subcontract other than a capitation contract with a contractor for the provision of hospital and medical services pursuant to this article, the hospital shall adopt uniform criteria to govern the reimbursement levels paid by all contractors with whom the hospital executes such a subcontract. Reimbursement levels offered by hospitals to contractors pursuant to this subsection may vary among contractors only as a result of the number of bed days purchased by the contractors, the amount of financial deposit required by the hospital, if any, or the schedule of performance discounts offered by the hospital to the contractor for timely payment of claims.

I. This subsection applies to inpatient hospital admissions and to outpatient hospital services on and after March 1, 1993. The director may negotiate at any time with a hospital on behalf of a contractor for services provided pursuant to this article. If a contractor negotiates with a hospital for services provided pursuant to this article, the following procedures apply:

1. The director shall require any contractor to reimburse hospitals for services provided under this article based on reimbursement levels that do not in the aggregate exceed those established pursuant to section 36-2903.01 and under terms on which the contractor and the hospital agree. However, a hospital and a contractor may agree on a different payment methodology than the methodology prescribed by the director pursuant to section 36-2903.01. The director by rule shall prescribe:

(a) The time limits for any negotiation between the contractor and the hospital.

(b) The ability of the director to review and approve or disapprove the reimbursement levels and terms agreed on by the contractor and the hospital.

(c) That if a contractor and a hospital do not agree on reimbursement levels and terms as required by this subsection, the reimbursement levels established pursuant to section 36-2903.01 apply.

(d) That, except if submitted under an electronic claims submission system, a hospital bill is considered received for purposes of subdivision (f) on initial receipt of the legible, error-free claim form by the contractor if the claim includes the following error-free documentation in legible form:

(i) An admission face sheet.

(ii) An itemized statement.

(iii) An admission history and physical.

(iv) A discharge summary or an interim summary if the claim is split.

(v) An emergency record, if admission was through the emergency room.

(vi) Operative reports, if applicable.

(vii) A labor and delivery room report, if applicable.

(e) That payment received by a hospital from a contractor is considered payment by the contractor of the contractor's liability for the hospital bill. A hospital may collect any unpaid portion of its bill from other third party payors or in situations covered by title 33, chapter 7, article 3.

(f) That a contractor shall pay for services rendered on and after October 1, 1997 under any reimbursement level according to paragraph 1 of this subsection subject to the following:

(i) If the hospital's bill is paid within thirty days of the date the bill was received, the contractor shall pay ninety-nine per cent of the rate.

(ii) If the hospital's bill is paid after thirty days but within sixty days of the date the bill was received, the contractor shall pay one hundred per cent of the rate.

(iii) If the hospital's bill is paid any time after sixty days of the date the bill was received, the contractor shall pay one hundred per cent of the rate plus a fee of one per cent per month for each month or portion of a month following the sixtieth day of receipt of the bill until the date of payment.

2. In any county having a population of five hundred thousand or fewer persons, a hospital that executes a subcontract other than a capitation contract with a provider for the provision of hospital and medical services pursuant to this article shall offer a subcontract to any other provider providing services to that portion of the county and to any other person that plans to become a provider in that portion of the county. If a hospital executes a subcontract other than a capitation contract with a provider for the provision of hospital and medical services pursuant to this article, the hospital shall adopt uniform criteria to govern the reimbursement levels paid by all providers with whom the hospital executes a subcontract.

J. If there is an insufficient number of, or an inadequate member capacity in, contracts awarded to contractors, the director, in order to deliver covered services to members enrolled or expected to be enrolled in the system within a county, may negotiate and award, without bid, a contract with a health care services organization holding a certificate of authority pursuant to title 20, chapter 4, article 9. The director shall require a health care services organization contracting under this subsection to comply with section 36-2906.01. The term of the contract shall not extend beyond the next bid and contract award process as provided in section 36-2906 and shall be no greater than capitation rates paid to contractors in the same county or counties pursuant to section 36-2906. Contracts awarded pursuant to this subsection are exempt from the requirements of title 41, chapter 23.

K. A contractor may require that a subcontracting or noncontracting provider shall be paid for covered services, other than hospital services, according to the capped fee-for-service schedule adopted by the director pursuant to subsection A, paragraph 2 of this section or subsection B, paragraph 1 of this section or at lower rates as may be negotiated by the contractor.

L. The director shall require any contractor to have a plan to notify members of reproductive age either directly or through the parent or legal guardian, whichever is most appropriate, of the specific covered family planning services available to them and a plan to deliver those services to members who request them. The director shall ensure that these plans include provisions for written notification, other than the member handbook, and verbal notification during a member's visit with the member's primary care physician or primary care practitioner.

M. The director shall adopt a plan to notify members of reproductive age who receive care from a contractor who elects not to provide family planning services of the specific covered family planning services available to them and to provide for the delivery of those services to members who request them. Notification may be directly to the member, or through the parent or legal guardian, whichever is most appropriate. The director shall ensure that the plan includes provisions for written notification, other than the member handbook, and verbal notification during a member's visit with the member's primary care physician or primary care practitioner.

N. The director shall prepare a report that represents a statistically valid sample and that indicates the number of children age two by contractor who received the immunizations recommended by the national centers for disease control and prevention while enrolled as members. The report shall indicate each type of immunization and the number and percentage of enrolled children in the sample age two who received each type of immunization. The report shall be done by contract year and shall be delivered to the governor, the president of the senate and the speaker of the house of representatives no later than April 1, 2004 and every second year thereafter.

O. If the administration implements an electronic claims submission system it may adopt procedures pursuant to subsection I, paragraph 1 of this section requiring documentation different than prescribed under subsection I, paragraph 1, subdivision (d) of this section.

§ 36-2905 Removal of medicaid special exemption for payments to contractors; civil penalty

A. Notwithstanding any other law, beginning on October 1, 2003, each contractor shall pay to the director of the department of insurance and financial institutions a tax equal to two percent of the total capitation, including reinsurance, and any other reimbursement paid to the contractor by the administration for persons eligible pursuant to section 36-2901, paragraph 6, subdivisions (a) and (g) and article 4 of this chapter. The tax shall be paid in four payments pursuant to subsection C of this section and deposited in the state general fund pursuant to sections 35-146 and 35-147.

B. The contractor shall not deduct any disallowance or penalty imposed by the administration pursuant to this chapter from the financial information submitted to the director of the department of insurance and financial institutions.

C. Each contractor shall file the estimated tax and documentation with the director of the department of insurance and financial institutions on a form prescribed by the director of the department of insurance and financial institutions to pay the estimated tax. A contractor shall make estimated tax payments to the director of the department of insurance and financial institutions for deposit in the state general fund pursuant to sections 35-146 and 35-147. The tax payments are due on or before September 15, December 15, March 15 and June 15 of each year. The amount of the payments shall be an estimate of the tax due for the quarter that ends in the month that payment is due.

D. On or before April 1, 2004 and annually on or before April 1 thereafter, the director of the department of insurance and financial institutions shall use data provided by the administration to reconcile the amount paid by each contractor pursuant to this section with the actual amount of title XIX and title XXI reimbursement made by the administration to the contractor in the preceding calendar year. If there is a discrepancy in the two amounts, the director of the department of insurance and financial institutions shall notify the contractor of the difference, provide a notice of right of appeal and bill the contractor for the unpaid amount of the premium tax or, if there is an overpayment, the director of the department of insurance and financial institutions shall either refund the amount of the overpayment to the contractor or issue a credit for the amount of the overpayment that the contractor can apply against future tax obligations prescribed by this section.

E. A contractor that fails to file an estimated payment or pay an unpaid premium tax as prescribed by this section is subject to a civil penalty equal to the greater of $25 or five percent of the amount due and is subject to interest on the amount due at the rate of one percent per month from the date the amount was due.

F. From and after December 31, 2017, the director of the department of insurance and financial institutions may require that reports and payments under this section be submitted electronically. If the director requires electronic submission, the director shall include on the department of insurance and financial institution's official website a list of one or more acceptable methods by which a contractor must submit reports and payments.

§ 36-2905.01 Inpatient hospital reimbursement program; large counties

A. Notwithstanding any other law, beginning on October 1, 2003, pursuant to this chapter the administration shall establish and operate a program for inpatient hospital reimbursement in each county with a population of more than five hundred thousand persons.

B. Beginning on October 1, 2003, the director shall require contractors to enter into contracts with one or more hospitals in these counties and to reimburse those hospitals for services provided pursuant to this chapter based on the reimbursement levels negotiated with each hospital and specified in the contract and under the terms on which the contractor and the hospital agree and under all of the following conditions:

1. The director may review and approve or disapprove the reimbursement levels and the terms agreed on by the contractor and the hospital.

2. If the contractor implements an electronic claims submission system it may adopt procedures requiring documentation of the system.

3. Payment received by a hospital from a contractor is considered payment in full by the contractor. A hospital may collect any unpaid portion of its bill from other third party payors or in situations covered by title 33, chapter 7, article 3.

C. If a contractor and a hospital do not enter into a contract pursuant to subsection B of this section, the reimbursement level for inpatient services provided on dates of admission on or after October 1, 2003 for that hospital is the reimbursement level prescribed in section 36-2903.01 multiplied by ninety-five per cent.

D. For outpatient hospital services provided under the program prescribed in this section, a contractor may reimburse a hospital either pursuant to rates and terms negotiated in a contract between the contractor and the hospital or pursuant to section 36-2903.01, subsection G, paragraph 3.

E. Contracts established pursuant to this section shall specify that arbitration may be used in lieu of the grievance and appeal procedure prescribed in section 36-2903.01, subsection B, paragraph 4 to resolve any disputes arising under the contract.

§ 36-2905.02 Inpatient reimbursement; rural hospitals; definition

A. If monies are appropriated for rural hospitals, the Arizona health care cost containment system administration shall request the centers for medicare and medicaid services to approve federal matching medicaid funding for the purposes specified in this section.

B. The administration shall distribute the available monies to increase inpatient reimbursement for qualifying rural hospitals. At no time shall the reimbursement exceed the cost of providing care. The administration may make supplemental payments to qualifying rural hospitals based on utilization or adjust rates, established pursuant to section 36-2903.01, subsection G, for qualifying rural hospitals. No adjustments to inpatient reimbursement under section 36-2903.01, subsection G to hospitals other than rural hospitals may be made as a result of this section.

C. For the purposes of this section, "rural hospital" means either:

1. A health care institution that is licensed as an acute care hospital, that has one hundred or fewer beds and that is located in a county with a population of less than five hundred thousand persons.

2. A health care institution that is licensed as a critical access hospital.

§ 36-2905.03 Behavioral health inpatient facilities; lack of contract; reimbursement

If a behavioral health inpatient facility, as defined in rule by the director of the department of health services, and a contractor or regional behavioral health authority do not enter into a contract, the reimbursement level for behavioral health services provided on dates of admission on or after July 1, 2018 for that behavioral health inpatient facility is the capped fee-for-service schedule adopted by the administration, multiplied by ninety percent.

§ 36-2905.04 Eligibility by fraud; penalties; enforcement; classification

A. A person shall not provide or cause to be provided false or fraudulent information to the state as part of an application for the system under section 36-2901, paragraph 6, subdivision (a).

B. A person who violates subsection A of this section, who is determined eligible for the system and who would have been ineligible for the system if the person had provided true and correct information is subject, in addition to any other penalties that may be prescribed by federal or state law, to a civil penalty of not to exceed the amount incurred by the system, including capitation payments, on behalf of the person. In addition, the person's eligibility may be discontinued in accordance with rules adopted by the director.

C. In addition to the requirements in state law, the medicaid fraud and abuse controls that are enacted under federal law apply to all persons eligible for the system and all contractors, noncontracting providers and subcontracted providers that provide services to persons who are eligible for the system.

D. The director shall make the determination to assess a civil penalty and is responsible for collection of the penalty. The director may adopt rules that prescribe procedures for the determination and collection of civil penalties. The director may compromise civil penalties imposed under this section in accordance with criteria established in rules.

E. The director shall adopt rules providing for the appeal of a decision by a person adversely affected by a determination made by the director under this section. The director's final decision is subject to judicial review in accordance with title 12, chapter 7, article 6.

F. Amounts paid by the state and recovered under this section shall be deposited in the state general fund, and any applicable federal share shall be returned to the United States department of health and human services.

G. If a civil penalty imposed pursuant to subsection D of this section is not paid, the state or the administration may file an action to collect the civil penalty in the superior court in Maricopa county. Matters that were raised or could have been raised in a hearing before the director or in an appeal pursuant to title 12, chapter 7, article 6 may not be raised as a defense to the civil action. An action brought pursuant to this subsection shall be initiated within six years after the date the claim is presented.

H. The department and contractors, subcontracted providers and noncontracting providers shall cooperate with the administration to prevent, discover and prosecute eligibility fraud.

I. A person who knowingly aids or abets another person pursuant to section 13-301, 13-302 or 13-303 in the commission of an offense under this section or section 13-3713 is guilty of a class 5 felony.

§ 36-2905.06 Finger imaging; requirements; exemption

A. To prevent multiple enrollment for services provided by the system, the administration shall work with the department of economic security to expand that department's finger imaging eligibility program to specific programs that are selected by the director of the administration and that provide services pursuant to this chapter.

B. By July 1, 2001, the administration shall make the following subject to finger imaging during the enrollment process:

1. All programs where enrollment and eligibility screening occur at a department of economic security facility.

2. Any program that provides members with pharmaceutical benefits.

3. Any other program selected by the director of the administration.

C. The director of the administration shall adopt rules to implement the requirements of subsections A and B of this section, including rules to exempt children, the elderly and any other group that the director determines would be unduly burdened by a finger imaging requirement.

D. Any pregnant woman who is eligible pursuant to section 36-2901, paragraph 6, subdivision (a) or who is receiving federal emergency services pursuant to section 36-2903.03 is not subject to finger imaging.

§ 36-2905.08 Nicotine replacement therapies; tobacco use medications

A. Notwithstanding section 36-2989, for contract years beginning October 1, 2008, the administration may expend monies to provide nicotine replacement therapies and tobacco use medications to members eligible pursuant to this article or article 2 or 3 of this chapter.

B. The administration shall not use monies from the state general fund for the purposes of this section.

§ 36-2906 Qualified plan health services contracts; proposals; administration

A. The administration shall:

1. Supervise the administrator.

2. Review the proposals.

3. Award contracts.

B. The director shall prepare and issue a request for proposal, including a proposed contract format, in each of the counties of this state, at least once every five years, to qualified group disability insurers, hospital and medical service corporations, health care services organizations and any other qualified public or private persons, including county-owned and operated health care facilities. The contracts shall specify the administrative requirements, the delivery of medically necessary services and the subcontracting requirements.

C. The director shall adopt rules regarding the request for proposal process that provide:

1. For definition of proposals in the following categories subject to the following conditions:

(a) Inpatient hospital services.

(b) Outpatient services, including emergency dental care, and early and periodic health screening and diagnostic services for children.

(c) Pharmacy services.

(d) Laboratory, x-ray and related diagnostic medical services and appliances.

2. Allowance for the adjustment of such categories by expansion, deletion, segregation or combination in order to secure the most financially advantageous proposals for the system.

3. An allowance for limitations on the number of high risk persons that must be included in any proposal.

4. For analysis of the proposals for each geographic service area as defined by the director to ensure the provision of health and medical services that are required to be provided throughout the geographic service area pursuant to section 36-2907.

5. For the submittal of proposals by a group disability insurer, a hospital and medical service corporation, a health care services organization or any other qualified public or private person intending to submit a proposal pursuant to this section. Each qualified proposal shall be entered with separate categories for the distinct groups of persons to be covered by the proposed contracts, as set forth in the request for proposal.

6. For the procurement of reinsurance for expenses incurred by any contractor or member or the system in providing services in excess of amounts specified by the director in any contract year. The director shall adopt rules to provide that the administrator may specify guidelines on a case by case basis for the types of care and services that may be provided to a person whose care is covered by reinsurance. The rules shall provide that if a contractor does not follow specified guidelines for care or services and if the care or services could be provided pursuant to the guidelines at a lower cost the contractor is entitled to reimbursement as if the care or services specified in the guidelines had been provided.

7. For the awarding of contracts to contractors with qualified proposals determined to be the most advantageous to the state for each of the counties in this state. A contract may be awarded that provides services only to persons defined as eligible pursuant to section 36-2901, paragraph 6, subdivision (b), (c), (d) or (e). The director may provide by rule a second round competitive proposal procedure for the director to request voluntary price reduction of proposals from only those that have been tentatively selected for award, before the final award or rejection of proposals.

8. For the requirement that any proposal in a geographic service area provide for the full range of system covered services.

9. For the option of the administration to waive the requirement in any request for proposal or in any contract awarded pursuant to a request for proposal for a subcontract with a hospital for good cause in a county or area including but not limited to situations when such hospital is the only hospital in the health service area. In any situation where the subcontract requirement is waived, no hospital may refuse to treat members of the system admitted by primary care physicians or primary care practitioners with hospital privileges in that hospital. In the absence of a subcontract, the reimbursement level shall be at the levels specified in section 36-2904, subsection H or I.

D. Reinsurance may be obtained against expenses in excess of a specified amount on behalf of any individual for system covered emergency or inpatient services either through the purchase of a reinsurance policy or through a system self-insurance program as determined by the director. Reinsurance, subject to the approval of the director, may be obtained against expenses in excess of a specified amount on behalf of any individual for outpatient services either through the purchase of a reinsurance policy or through a system self-insurance program as determined by the director.

E. Notwithstanding the other provisions of this section, the administration may procure, provide or coordinate system covered services by interagency agreement with authorized agencies of this state or with a federal agency for distinct groups of eligible persons, including persons eligible for children's rehabilitative services through the department of economic security and persons eligible for comprehensive medical and dental program services through the department of child safety.

F. Contracts shall be awarded as otherwise provided by law, except that in no event may a contract be awarded to any respondent that will cause the system to lose any federal monies to which it is otherwise entitled.

G. After contracts are awarded pursuant to this section, the director may negotiate with any successful proposal respondent for the expansion or contraction of services or service areas if there are unnecessary gaps or duplications in services or service areas.

§ 36-2906.01 Qualified commercial carriers; administration; contracts

A. Entities, including insurers as defined in section 20-104, hospital, medical, dental and optometric service corporations as defined in title 20, chapter 4, article 3 and health care services organizations as defined in section 20-1051, are prohibited from contracting with the administration as a system contractor unless the entity establishes an affiliated corporation whose only authorized business is to provide services or coverage pursuant to a contract with the administration to persons defined as eligible in section 36-2901, paragraph 6, subdivisions (a), (f) and (g).

B. If there is an insufficient number of, or an inadequate member capacity in, contracts awarded to contractors, the director may request that the director of the department of insurance and financial institutions grant a temporary exemption from the requirements of subsection A of this section for an entity regulated by the department of insurance and financial institutions, and otherwise qualified to be a system health plan, in order for that entity to enter into an arrangement with the administration to provide services to persons defined as eligible in section 36-2901, paragraph 6, subdivisions (a), (f) and (g). On a written request from the administration, the director of the department of insurance and financial institutions may grant a onetime exemption to an entity for a period not to exceed one year. During the temporary exemption, the entity must comply with all applicable provisions of both this article and the applicable chapter or article of title 20 under which the entity is licensed to operate.

C. With respect to entities that have been granted an exemption pursuant to subsection B of this section, the provisions of section 36-2903, subsection M, relating to the direct operation of a provider, shall not apply. If the director determines that the operations of the entity would otherwise meet the circumstances specified in contract under which the administration could operate the entity directly or that the public health, safety or welfare require emergency action relative to the entity, the director shall notify the director of the department of insurance and financial institutions and may request that the department of insurance and financial institutions take appropriate actions.

§ 36-2907 Covered health and medical services; modifications; related delivery of service requirements; rules; definitions

A. Subject to the limits and exclusions specified in this section, contractors shall provide the following medically necessary health and medical services:

1. Inpatient hospital services that are ordinarily furnished by a hospital to care for and treat inpatients and that are provided under the direction of a physician or a primary care practitioner. For the purposes of this section, inpatient hospital services exclude services in an institution for tuberculosis or mental diseases unless authorized under an approved section 1115 waiver.

2. Outpatient health services that are ordinarily provided in hospitals, clinics, offices and other health care facilities by licensed health care providers. Outpatient health services include services provided by or under the direction of a physician or a primary care practitioner, including occupational therapy.

3. Other laboratory and X-ray services ordered by a physician or a primary care practitioner.

4. Medications that are ordered on prescription by a physician or a dentist who is licensed pursuant to title 32, chapter 11. Persons who are dually eligible for title XVIII and title XIX services must obtain available medications through a medicare licensed or certified medicare advantage prescription drug plan, a medicare prescription drug plan or any other entity authorized by medicare to provide a medicare part D prescription drug benefit.

5. Medical supplies, durable medical equipment, insulin pumps and prosthetic devices ordered by a physician or a primary care practitioner. Suppliers of durable medical equipment shall provide the administration with complete information about the identity of each person who has an ownership or controlling interest in their business and shall comply with federal bonding requirements in a manner prescribed by the administration.

6. For persons who are at least twenty-one years of age, treatment of medical conditions of the eye, excluding eye examinations for prescriptive lenses and the provision of prescriptive lenses.

7. Early and periodic health screening and diagnostic services as required by section 1905(r) of title XIX of the social security act for members who are under twenty-one years of age.

8. Family planning services that do not include abortion or abortion counseling. If a contractor elects not to provide family planning services, this election does not disqualify the contractor from delivering all other covered health and medical services under this chapter. In that event, the administration may contract directly with another contractor, including an outpatient surgical center or a noncontracting provider, to deliver family planning services to a member who is enrolled with the contractor that elects not to provide family planning services.

9. Podiatry services that are performed by a podiatrist who is licensed pursuant to title 32, chapter 7 and ordered by a primary care physician or primary care practitioner.

10. Nonexperimental transplants approved for title XIX reimbursement.

11. Dental services as follows:

(a) Except as provided in subdivision (b) of this paragraph, for persons who are at least twenty-one years of age, emergency dental care and extractions in an annual amount of not more than $1,000 per member.

(b) Subject to approval by the centers for medicare and medicaid services, for persons treated at an Indian health service or tribal facility, adult dental services that are eligible for a federal medical assistance percentage of one hundred percent and that exceed the limit prescribed in subdivision (a) of this paragraph.

12. Ambulance and nonambulance transportation, except as provided in subsection G of this section.

13. Hospice care.

14. Orthotics, if all of the following apply:

(a) The use of the orthotic is medically necessary as the preferred treatment option consistent with medicare guidelines.

(b) The orthotic is less expensive than all other treatment options or surgical procedures to treat the same diagnosed condition.

(c) The orthotic is ordered by a physician or primary care practitioner.

15. Subject to approval by the centers for medicare and medicaid services, medically necessary chiropractic services that are performed by a chiropractor who is licensed pursuant to title 32, chapter 8 and that are ordered by a primary care physician or primary care practitioner pursuant to rules adopted by the administration. The primary care physician or primary care practitioner may initially order up to twenty visits annually that include treatment and may request authorization for additional chiropractic services in that same year if additional chiropractic services are medically necessary.

16. For up to ten program hours annually, diabetes outpatient self-management training services, as defined in 42 United States Code section 1395x, if prescribed by a primary care practitioner in either of the following circumstances:

(a) The member is initially diagnosed with diabetes.

(b) For a member who has previously been diagnosed with diabetes, either:

(i) A change occurs in the member's diagnosis, medical condition or treatment regimen.

(ii) The member is not meeting appropriate clinical outcomes.

17. Pursuant to the terms and conditions that are approved by the centers for medicare and medicaid services and subject to available funding, traditional healing services, if both of the following apply:

(a) The member qualifies for services through the Indian health service or a tribal facility pursuant to the conditions of participation outlined in 42 Code of Federal Regulations section 136.12.

(b) The traditional healing service is delivered by or through the Indian health service or a tribal facility.

B. The limits and exclusions for health and medical services provided under this section are as follows:

1. Circumcision of newborn males is not a covered health and medical service.

2. For eligible persons who are at least twenty-one years of age:

(a) Prosthetic devices do not include hearing aids, dentures or bone-anchored hearing aids. Prosthetic devices, except prosthetic implants, may be limited to $12,500 per contract year.

(b) Percussive vests are not covered health and medical services.

(c) Durable medical equipment is limited to items covered by medicare.

(d) Nonexperimental transplants do not include pancreas-only transplants.

(e) Bariatric surgery procedures, including laparoscopic and open gastric bypass and restrictive procedures, are not covered health and medical services.

C. The system shall pay noncontracting providers only for health and medical services as prescribed in subsection A of this section and as prescribed by rule.

D. The director shall adopt rules necessary to limit, to the extent possible, the scope, duration and amount of services, including maximum limits for inpatient services that are consistent with federal regulations under title XIX of the social security act (P.L. 89-97; 79 Stat. 344; 42 United States Code section 1396 (1980)). To the extent possible and practicable, these rules shall provide for the prior approval of medically necessary services provided pursuant to this chapter.

E. The director shall make available home health services in lieu of hospitalization pursuant to contracts awarded under this article. For the purposes of this subsection, "home health services" means the provision of nursing services, home health aide services or medical supplies, equipment and appliances that are provided on a part-time or intermittent basis by a licensed home health agency within a member's residence based on the orders of a physician or a primary care practitioner. Home health agencies shall comply with the federal bonding requirements in a manner prescribed by the administration.

F. The director shall adopt rules for the coverage of behavioral health services for persons who are eligible under section 36-2901, paragraph 6, subdivision (a). The administration acting through the regional behavioral health authorities shall establish a diagnostic and evaluation program to which other state agencies shall refer children who are not already enrolled pursuant to this chapter and who may be in need of behavioral health services. In addition to an evaluation, the administration acting through regional behavioral health authorities shall also identify children who may be eligible under section 36-2901, paragraph 6, subdivision (a) or section 36-2931, paragraph 5 and shall refer the children to the appropriate agency responsible for making the final eligibility determination.

G. The director shall adopt rules providing for transportation services and rules providing for copayment by members for transportation for other than emergency purposes. Subject to approval by the centers for medicare and medicaid services, nonemergency medical transportation shall not be provided except for stretcher vans and ambulance transportation. Prior authorization is required for transportation by stretcher van and for medically necessary ambulance transportation initiated pursuant to a physician's direction. Prior authorization is not required for medically necessary ambulance transportation services rendered to members or eligible persons initiated by dialing telephone number 911 or other designated emergency response systems.

H. The director may adopt rules to allow the administration, at the director's discretion, to use a second opinion procedure under which surgery may not be eligible for coverage pursuant to this chapter without documentation as to need by at least two physicians or primary care practitioners.

I. If the director does not receive bids within the amounts budgeted or if at any time the amount remaining in the Arizona health care cost containment system fund is insufficient to pay for full contract services for the remainder of the contract term, the administration, on notification to system contractors at least thirty days in advance, may modify the list of services required under subsection A of this section for persons defined as eligible other than those persons defined pursuant to section 36-2901, paragraph 6, subdivision (a). The director may also suspend services or may limit categories of expense for services defined as optional pursuant to title XIX of the social security act (P.L. 89-97; 79 Stat. 344; 42 United States Code section 1396 (1980)) for persons defined pursuant to section 36-2901, paragraph 6, subdivision (a). Such reductions or suspensions do not apply to the continuity of care for persons already receiving these services.

J. All health and medical services provided under this article shall be provided in the geographic service area of the member, except:

1. Emergency services and specialty services provided pursuant to section 36-2908.

2. That the director may allow the delivery of health and medical services in other than the geographic service area in this state or in an adjoining state if the director determines that medical practice patterns justify the delivery of services or a net reduction in transportation costs can reasonably be expected. Notwithstanding the definition of physician as prescribed in section 36-2901, if services are procured from a physician or primary care practitioner in an adjoining state, the physician or primary care practitioner shall be licensed to practice in that state pursuant to licensing statutes in that state that are similar to title 32, chapter 13, 15, 17 or 25 and shall complete a provider agreement for this state.

K. Covered outpatient services shall be subcontracted by a primary care physician or primary care practitioner to other licensed health care providers to the extent practicable for purposes including, but not limited to, making health care services available to underserved areas, reducing costs of providing medical care and reducing transportation costs.

L. The director shall adopt rules that prescribe the coordination of medical care for persons who are eligible for system services. The rules shall include provisions for transferring patients and medical records and initiating medical care.

M. Pursuant to the terms and conditions that are approved by the centers for medicare and medicaid services and subject to available funding, the director shall implement limited benefit coverage prerelease services to eligible incarcerated individuals and committed youth for up to ninety days immediately before the individuals' or committed youth's expected date of release from a prison, jail, secure care facility or tribal correctional facility.

N. Notwithstanding section 36-2901.08, monies from the hospital assessment fund established by section 36-2901.09 may not be used to provide any of the following:

1. Chiropractic services as prescribed in subsection A, paragraph 15 of this section.

2. Diabetes outpatient self-management training services as prescribed in subsection A, paragraph 16 of this section.

3. Speech therapy provided in an outpatient setting to eligible persons who are at least twenty-one years of age.

4. Cochlear implants to eligible persons who are at least twenty-one years of age.

O. For the purposes of this section:

1. "Ambulance" has the same meaning prescribed in section 36-2201.

2. "Tribal facility" has the same meaning prescribed in section 36-2981.

§ 36-2907.01 Eosinophilic gastrointestinal disorder; formula

A. Any coverage that is offered by a contractor providing services to persons eligible pursuant to section 36-2901 and that contains a prescription drug benefit shall cover amino acid-based formula that is ordered by a physician or a registered nurse practitioner if:

1. The person has been diagnosed with an eosinophilic gastrointestinal disorder.

2. The person is under the continuous supervision of a physician who is licensed pursuant to title 32, chapter 13 or 17 or a registered nurse practitioner who is licensed pursuant to title 32, chapter 15.

3. There is risk of a mental or physical impairment without the use of the formula.

B. This section does not apply to limited benefit coverage as defined in section 20-1137.

§ 36-2907.02 Benchmark benefit package

A. The administration shall establish a benchmark benefit package pursuant to section 6044 of the deficit reduction act of 2005 and section 1937 of the social security act.

B. Enrollment in the benchmark benefit package is mandatory for persons who are eligible pursuant to:

1. Section 36-2901.01 as covered under the section 1115 waiver and who are not covered under the state plan.

2. Section 36-2924.

C. Enrollment in the benchmark benefit package is optional for all other title XIX eligible persons.

D. This section shall be implemented subject to approval of the benchmark benefit package from the centers for medicare and medicaid services and on the condition that any changes to health benefits under this section would not jeopardize the state's ability to receive any enhanced federal matching rate.

§ 36-2907.03 Biomarker testing; coverage; definitions

A. The administration and its contractors shall provide biomarker testing for the purposes of diagnosis, treatment, appropriate management or ongoing monitoring of a member's disease or condition to guide treatment decisions when the test provides clinical utility as demonstrated by medical and scientific evidence, including any of the following:

1. Labeled indications for tests that are approved or cleared by the United States food and drug administration or indicated tests for a drug that is approved by the United States food and drug administration.

2. Centers for medicare and medicaid services national coverage determinations or medicare administrative contractor local coverage determinations.

3. Nationally recognized clinical practice guidelines and consensus statements.

B. The administration and its contractors shall provide biomarker testing with the same scope, duration and frequency as the system otherwise provides to members pursuant to this article.

C. The member and prescribing practitioner must have access to a clear, readily accessible and convenient online process to request an exception to a coverage policy of the system. This subsection does not require a separate process if the administration's and its contractor's existing process complies with this subsection. Any request for a coverage exception shall be submitted electronically by the prescribing practitioner.

D. For the purposes of this section:

1. "Biomarker":

(a) Means a characteristic that is objectively measured and evaluated as an indicator of normal biological processes, pathogenic processes or pharmacologic responses to a specific therapeutic intervention.

(b) Includes gene mutations or protein expression.

2. "Biomarker testing":

(a) Means the analysis of a patient's tissue, blood or other biospecimen for the presence of a biomarker.

(b) Includes single-analyte tests, multiplex panel tests and whole genome sequencing.

3. "Clinical utility" means the test result provides information that is used in the formulation of a treatment or monitoring strategy that informs a patient’s outcome and impacts the clinical decision. The most appropriate test may include both information that is actionable and some information that cannot be immediately used in the formulation of a clinical decision.

4. "Consensus statements" means statements that:

(a) Are developed by an independent, multidisciplinary panel of experts using a transparent methodology and reporting structure that includes a conflict of interest policy.

(b) Are aimed at specific clinical circumstances.

(c) Are based on the best available evidence for the purpose of optimizing clinical care outcomes.

5. "Nationally recognized clinical practice guidelines" means evidence-based clinical practice guidelines that both:

(a) Are developed by independent organizations or medical professional societies using a transparent methodology and reporting structure and a conflict of interest policy.

(b) Establish standards of care that are informed by a systematic review of evidence and an assessment of the benefits and costs of alternative care options that includes recommendations intended to optimize patient care.

§ 36-2907.04 Family planning services

A woman whose eligibility under section 36-2901, paragraph 6, subdivision (a), item (ii) ended no earlier than March 1, 1995 and who is not otherwise enrolled in the system is eligible to receive voluntary family planning services for two years, if approval of the waiver requesting family planning services pursuant to this section is approved by the United States department of health and human services. This two year period begins on the first day following the end of that woman's sixty day federal eligibility period that begins on the last day of her pregnancy. Family planning services under this section are limited to those available pursuant to section 36-2907, subsection A, paragraph 8.

§ 36-2907.05 Primary care programs; definition

A. Subject to the availability of monies, the administration shall enter into an intergovernmental agreement pursuant to title 11, chapter 7, article 3 with the department of health services to establish community based primary care programs to contract with providers to provide comprehensive primary care services to low-income at-risk residents of this state and to provide primary care services to indigent or uninsured Arizonans. The department may contract with public and nonprofit private entities to provide primary health care services through mobile medical clinics to indigent or uninsured Arizonans in rural areas as defined in section 36-2171 or in medically underserved areas as prescribed by section 36-2352.

B. The community based primary care programs as established pursuant to this section shall include at least the following:

1. Outreach services that are designed to identify individuals in need.

2. Comprehensive primary care services that are provided in community sites including well child care, immunizations, treatment of minor illnesses and health education and referral.

3. Tracking and follow-up services to assist individuals in obtaining care that is not available through the primary care programs.

C. As a condition of receiving a contract, each community based primary care program shall agree to submit information that is required to conduct program evaluations pursuant to section 36-2907.07.

D. The community based primary care programs as established pursuant to this section may provide, subject to available funding, the following services:

1. Medical care provided through licensed primary care physicians and licensed mid-level providers.

2. Diagnostic laboratory or imaging services that are necessary to complete preliminary diagnosis and treatment, including referral services.

3. Pharmacy services that are necessary to initiate treatment, including referral services.

4. Preventive health services.

5. Preventive dental services.

E. The community based primary care programs shall be administered directly by the department of health services. Contracts established pursuant to subsection A of this section shall be signed by the department and the contractor before the transmission of any tobacco tax and health care fund monies to the contractor.

F. If the department of health services enters into a contract with a mobile medical clinic to provide services pursuant to subsection A of this section, the mobile medical clinic shall provide at least the following:

1. Medical care provided through licensed primary care physicians and licensed mid-level providers.

2. Comprehensive primary care services including well woman care, well child care, immunizations, treatment of minor illnesses and health education and referral.

3. Prenatal care services.

4. Diagnostic laboratory and imaging services that are necessary to complete a diagnosis and treatment, including referral services.

5. Pharmacy services that are necessary to complete treatment, including referral services.

6. Outreach services that are designed to identify persons in need.

7. Tracking and follow-up services to assist persons to obtain care that is not available through the primary care programs.

8. Community development activities to assist communities in organizing to work with school health systems, the public health department and other health partners.

9. Community development activities to assist communities in establishing means to provide permanent health care services, including community clinics.

G. As a condition of receiving a contract, each mobile medical clinic shall agree to submit information that is required to conduct program evaluations pursuant to section 36-2907.07 and to display on the mobile medical clinic wording that identifies the source of funding.

H. The department of health services shall directly administer any contracts entered into with mobile medical clinics pursuant to subsection A of this section. Contracts established pursuant to subsection A of this section shall be signed by the department and the contractor before transmitting any tobacco tax and health care fund monies to the contractor.

I. The department of health services may give preference to mobile medical clinics that have a history of delivering primary care services in conjunction with community development.

J. For the purposes of this section, "mid-level provider" means a physician assistant as defined in section 32-2501, a registered nurse practitioner as defined in section 32-1601 or a registered nurse practitioner who is certified by the state board of nursing as a qualified nurse midwife.

§ 36-2907.06 Qualifying community health centers; rural health clinics; contracts; requirements; graduate medical education; definition

(Conditionally Rpld.)

A. Subject to the availability of monies, the administration shall enter into an intergovernmental agreement pursuant to title 11, chapter 7, article 3 with the department of health services to contract with qualifying community health centers to provide primary health care services to indigent or uninsured Arizonans. The department of health services shall enter into one-year contracts with qualifying community health centers for the centers to provide the following primary health care services:

1. Medical care provided through licensed primary care physicians and licensed mid-level providers as defined in section 36-2907.05.

2. Prenatal care services.

3. Diagnostic laboratory and imaging services that are necessary to complete a diagnosis and treatment, including referral services.

4. Pharmacy services that are necessary to complete treatment, including referral services.

5. Preventive health services.

6. Preventive dental services.

7. Emergency services performed at the qualifying community health center.

8. Transportation for patients to and from the qualifying community health center if these patients would not receive care without this assistance.

B. A contract entered into pursuant to subsection A of this section may include urgent care services for walk-in patients.

C. Each contract shall require that the qualifying community health center provide the services prescribed in subsection A of this section to persons who the qualifying community health center determines:

1. Are residents of this state.

2. Are without medical insurance policy coverage.

3. Do not have a family income of more than two hundred percent of the federal poverty guidelines.

4. Have provided verification that the person is not eligible for enrollment in the Arizona health care cost containment system pursuant to this chapter.

5. Have provided verification that the person is not eligible for medicare.

D. The department of health services shall directly administer the program and issue requests for proposals for the contracts prescribed in this section. Contracts established pursuant to subsection A of this section shall be signed by the department and the contractor before the transmission of any tobacco tax and health care fund monies to the contractor.

E. Persons who meet the eligibility criteria established in subsection C or H of this section shall be charged for services based on a sliding fee schedule approved by the department of health services.

F. In awarding contracts, the department of health services may give preference to qualifying community health centers that have a sliding fee schedule. Monies shall be used for the number of patients that exceeds the number of uninsured sliding fee schedule patients that the qualifying community health center served during fiscal year 1994. Each qualifying community health center shall make its sliding fee schedule available to the public on request. The contract shall require the qualifying community health center to apply a sliding fee schedule to all of its uninsured patients.

G. The department of health services may examine the records of each qualifying community health center and conduct audits necessary to determine that the eligibility determinations were performed accurately and to verify the number of uninsured patients served by the qualifying community health center as a result of receiving tobacco tax and health care fund monies by the contract established pursuant to subsection A of this section.

H. Contracts established pursuant to subsection A of this section shall require qualifying community health center contractors to submit information as required pursuant to section 36-2907.07 for program evaluations.

I. Beginning October 1, 2024, the administration, contingent on approval by the centers for medicare and medicaid services, shall annually distribute monies appropriated for primary care graduate medical education services to qualifying community health centers and rural health clinics for direct and indirect costs. The administration shall:

1. Adopt rules specifying the formula by which the monies are distributed.

2. Require each primary care graduate medical education program that receives monies pursuant to this subsection to identify and report to the administration the number of new residency positions created with those monies, including positions in rural areas. Each program shall also report information related to the number of funded residency positions that resulted in physicians locating their practices in this state. The administration shall report to the joint legislative budget committee on or before July 1 of each year on the number of new residency positions as reported by the primary care graduate medical education programs pursuant to this paragraph.

3. Coordinate with local, county and tribal governments and any university under the jurisdiction of the Arizona board of regents that may provide monies in addition to any state general fund monies appropriated for primary care graduate medical education in order to qualify for additional matching federal monies for programs or positions in a specific locality. Payments by the administration pursuant to this paragraph may be limited to those providers designated by the funding entity and may be based on any methodology deemed appropriate by the administration, including replacing any payments that might otherwise have been paid pursuant to this subsection had sufficient state general fund monies or other monies been appropriated to fully fund those payments. These programs, positions and payment methodologies must be approved by the administration and the centers for medicare and medicaid services. The administration shall report to the president of the senate, the speaker of the house of representatives and the director of the joint legislative budget committee on or before July 1 of each year on the amount of monies contributed and the number of residency positions funded by local, county and tribal governments and any university under the jurisdiction of the Arizona board of regents, including the amount of federal matching monies used.

J. For the purposes of this section, "qualifying community health center" means a community-based primary care facility that provides medical care in medically underserved areas as provided in section 36-2352, or in medically underserved areas or medically underserved populations as designated by the United States department of health and human services, through the employment of physicians, professional nurses, physician assistants or other health care technical and paraprofessional personnel.

§ 36-2907.07 Tobacco tax program evaluations

A. Subject to the availability of monies, the administration may enter into an intergovernmental agreement pursuant to title 11, chapter 7, article 3 to contract with the auditor general to conduct or cause to conduct program evaluations of programs that both receive tobacco tax monies pursuant to section 36-774 and are administered by the department of health services.

B. If the administration contracts for the annual program evaluations:

1. The auditor general shall establish a schedule for periodic reviews of the programs. The auditor general shall notify the joint legislative audit committee of the schedule for the periodic reviews of the programs. The joint legislative audit committee shall review the schedule and may approve or modify it.

2. The evaluations shall examine the effectiveness of the programs, the organizational structure of the programs and the efficiency of the programs.

3. The evaluations shall include but are not limited to the following utilization information:

(a) The level and scope of services being offered.

(b) The type of services being used.

(c) The frequency of services being used.

(d) The personal characteristics of the program participants who receive services.

(e) The demographic characteristics of the program participants who receive services.

4. The evaluations shall include but are not limited to:

(a) Information on the number of the program participants.

(b) Information on program contractors and program service providers.

(c) Information on program revenues and expenditures.

(d) Information on the average cost for each program participant receiving services and information on the average cost of providing each service.

(e) Information on the administrative costs to operate each program.

(f) An evaluation of the methods used by the department of health services for selecting eligible contractors.

(g) An estimate of the benefits and effects of providing health care services to persons who cannot afford those services or for whom there would otherwise be no coverage.

5. The department of health services shall provide data necessary to complete the evaluations.

6. The auditor general shall submit an annual report to the director of the joint legislative budget committee regarding the evaluations no later than November 1 of each year.

§ 36-2907.08 Basic children's medical services program; definition

(Conditionally Rpld.)

A. Beginning on October 1, 1996, the basic children's medical services program is established to provide grants to hospitals that exclusively serve the medical needs of children or that operate programs designed primarily for children. The director of the department of health services, pursuant to an intergovernmental agreement with the director of the Arizona health care cost containment system and subject to the availability of monies, shall implement and operate this program only to the extent that funding is available and has been specifically dedicated for the program.

B. To receive a grant under this section, a hospital shall submit an application as prescribed by the director of the department of health services in a request for proposal that indicates to the director's satisfaction that the applicant agrees to:

1. Use grant program monies to enhance the applicant's provision of additional medical services to children and to improve the applicant's ability to deliver inpatient, outpatient and specialized clinical services to indigent, uninsured or underinsured children who are not eligible to receive services under this article.

2. Establish and enforce a sliding fee scale for children who are provided services with grant monies.

3. Account for monies collected pursuant to paragraph 2 of this subsection separately from all other income it receives and to report this income on a quarterly basis to the administration.

4. Use the grant to supplement monies already available to the applicant.

5. Match the grant as prescribed by the director by rule with private monies the applicant has pledged from private sources. The director shall waive this requirement if the applicant is seeking the grant to qualify for a private or public grant for the delivery of inpatient, outpatient or specialized clinical care of indigent, uninsured or underinsured children who are not eligible to receive services under this article.

6. Provide a mechanism to ensure that grant program monies are not used for children who are eligible for services under this article.

7. Not use grant monies to fund the provision of emergency room services.

C. By contract, the director of the department of health services shall require a grantee to:

1. Annually account for all expenditures it makes with grant program monies during the previous year.

2. Agree to cooperate with any audits or reviews conducted by this state.

3. Agree to the requirements of this section and other conditions the director determines to be necessary for the effective use of grant program monies.

D. The director of the department of health services may limit either or both the grant amount per contract or the number of contracts awarded. In awarding contracts to qualified applicants the director shall consider:

1. The amount of monies available for the grant program.

2. The need for grant monies in the area served by the applicant as stated by the applicant in the response to the request for proposals and as researched by the administration.

3. The number of children estimated to be served by the applicant with grant program monies.

4. The services that will be provided or made available with grant program monies.

5. The percentages of grant monies that the applicant indicates will be reserved for administrative expenditures, direct service expenditures and medical care personnel costs.

6. The financial and programmatic ability of the applicant to meet the contract's requirements.

E. If the department of health services determines that a hospital has used grant monies in violation of this section, it shall prohibit that hospital from receiving additional grant program monies until the hospital reimburses the department. The department shall impose an interest penalty as prescribed by the director of the department of health services by rule. The director shall deposit, pursuant to sections 35-146 and 35-147, penalties collected under this section in the medically needy account of the tobacco tax and health care fund.

F. The director of the department of health services may expend monies from the medically needy account of the tobacco tax and health care fund for the purpose of funding evaluations of the grant program established by this section. The director shall ensure that any evaluation is structured to meet at least the base requirements prescribed in section 36-2907.07.

G. The director of the department of health services may expend monies from the medically needy account of the tobacco tax and health care fund for administrative costs associated with the establishment or the operation of the grant program. The amount withdrawn annually for grant program administrative costs shall not exceed two percent of the sum of any transfers of monies and any appropriation of monies for the specified purpose of supporting the nonentitlement basic children's medical services program established in this section.

H. The department of health services shall directly administer the grant program and all contracts established pursuant to this section. The director of the department of health services shall publish rules pursuant to title 41, chapter 6 for the grant program before the issuance of the initial grant program request for proposals. The director of the department of health services and the contractor shall sign a contract before the transmission of any tobacco tax and health care fund monies to the contractor.

I. In administering the basic children's medical services program and awarding contracts established pursuant to this section, the director of the department of health services shall seek to efficiently and effectively coordinate the delivery of services provided through the program with services provided through other programs, including those established pursuant to sections 36-2907.05, 36-2907.06 and 36-2912. The director shall seek to ensure that this coordination results in providing for either or both the coverage of additional children or the provision of additional medically necessary services to children instead of supplanting existing service opportunities or duplicating existing programs with no attendant increase in coverage.

J. For the purposes of this section, "grant program" refers to the basic children's medical services program.

§ 36-2907.09 Direct service contracts; reporting

(Conditionally Rpld.)

The director of the department of health services shall provide to the legislature the following information for services provided pursuant to sections 36-2907.06 and 36-2907.08:

1. The number of members served.

2. The number of encounters and the average cost for each encounter.

3. The number of services and the average cost for each service.

4. The actual year to date expenditures and projected annual expenditures.

§ 36-2907.10 Transplants; extended eligibility

A. If during a redetermination process for eligibility pursuant to this article a person who is enrolled and who is eligible pursuant to this article for a medically necessary and appropriate transplant pursuant to section 36-2907, subsection A, paragraph 10 is determined ineligible for coverage pursuant to section 36-2901.04 due to excess income or ineligible for coverage pursuant to section 36-2901, paragraph 6, subdivision (a), item (i), (ii) or (iii) and that person has not yet received the transplant, the person may extend the person's eligibility based on the total spend down requirement for the household divided by the number of persons in the household.

B. In order to extend eligibility the person shall enter into a contractual agreement with a hospital to pay the amount of excess income determined pursuant to this section. The hospital shall only be reimbursed by the administration at the contracted rate of the transplantation surgery, including up to one hundred days of posttransplantation care. The administration shall deduct the amount of excess income that the person agrees to pay the hospital before payment is made to the hospital for transplant services authorized by this section. The amount of excess income shall not be changed once the extended period of eligibility begins. The administration is not responsible to pay any of the spend down amount if the person does not pay the hospital. The contracting hospital shall submit a copy of the person's contractual agreement with the hospital to the administration.

C. The administration shall authorize extended eligibility services only for transplant candidates.

D. Extended eligibility pursuant to this section is for one twelve-month continuous period of time and is funded only pursuant to section 36-2907.12.

E. This section does not prohibit a person from applying for eligibility pursuant to any other applicable law.

F. If the administration and a hospital that performed a transplant surgery on a person who is eligible pursuant to this section do not have a contracted rate, the administration shall not reimburse the hospital more than the contracted rate established by the administration.

G. A person who has extended eligibility pursuant to section 36-2907.11 is not eligible for services pursuant to this section.

H. The extended eligibility of a person who is determined to be no longer medically eligible for a transplant terminates at the end of the month in which it is determined the person is not medically eligible for the transplant unless the person is otherwise eligible for services pursuant to section 36-2901, paragraph 6, subdivision (a).

§ 36-2907.11 Retaining transplant status

A. If during a redetermination process for eligibility pursuant to this article a person who is eligible for a medically necessary and appropriate transplant as determined by the administration pursuant to section 36-2907, subsection A, paragraph 10 is determined ineligible for coverage pursuant to section 36-2901.04 due to excess income or ineligible for coverage pursuant to section 36-2901, paragraph 6, subdivision (a), item (i), (ii) or (iii) and that person has not yet received the transplant, the person may enter into a contract with a hospital to pay the amount of excess income. For purposes of this section, the administration shall compute excess income based on the total spend down requirement for the household divided by the number of persons in the household. The administration shall recompute excess income pursuant to this section at the time the transplant becomes available.

B. If the hospital enters into the contractual agreement with the person, the hospital shall allow the person to retain the person's transplant candidacy status as long as the person is medically eligible but the person is not eligible for services pursuant to this article unless that person is determined eligible pursuant to subsection D of this section.

C. A person who has extended eligibility pursuant to section 36-2907.10 is not eligible for services pursuant to this section.

D. Once a transplant is scheduled or performed the person shall reapply for eligibility pursuant to section 36-2901, paragraph 6, subdivision (a) and, if a spend down of excess income is necessary in order to be eligible for services pursuant to this article, the administration shall compute this income pursuant to the process specified in subsection A of this section. If the transplant is performed within thirty days before the date of the eligibility determination, the administration shall pay the hospital on a retroactive basis at the contracted rate for costs of the transplant surgery, including up to one hundred days of posttransplantation care. The administration shall deduct the amount of excess income that the person has agreed to pay the hospital before payment is made to the hospital for transplant services pursuant to this section. The amount of excess income shall not be recomputed after the date the person becomes eligible pursuant to this section. The administration is not responsible for paying any spend down amount if the person does not pay the hospital. The contracting hospital shall submit a copy of the person's contractual agreement with the hospital to the administration.

E. Eligibility pursuant to this section shall be funded only pursuant to section 36-2907.12.

F. This section does not prohibit a person from applying for eligibility pursuant to any other applicable law.

G. If the administration and a hospital that performed a transplant surgery on a person eligible pursuant to this section do not have a contracted rate, the administration shall not reimburse the hospital more than the contracted rate established by the administration.

§ 36-2907.12 Transplants; tobacco tax allocation

Subject to the availability of monies in the medically needy account established by section 36-774, the administration shall withdraw the amount necessary to pay the state share of costs for providing eligibility for transplant recipients who agree to enter into contractual agreements with hospitals pursuant to section 36-2907.10 or 36-2907.11.

§ 36-2907.13 Arizona health care cost containment system; teledentistry

In addition to services provided pursuant to section 36-2907, subsection A, paragraph 7, the Arizona health care cost containment system administration shall implement teledentistry services for enrolled members who are under twenty-one years of age.

§ 36-2907.14 AHCCCS; contractors; opioid treatment programs; reimbursement; report; definitions

A. Pursuant to section 36-2907, the administration and its contractors may reimburse an opioid treatment program provider for enrolled members only if the provider demonstrates enforcement of each plan contained in the annual report pursuant to subsection B of this section and the administration approves the report pursuant to subsection C of this section.

B. An opioid treatment program provider that receives reimbursement from the administration or its contractors shall submit an annual report on a schedule that is prescribed by the administration and that contains all of the following:

1. A detailed security plan that incorporates standards from the substance abuse and mental health services administration and the United States drug enforcement administration. The plan shall include patient management strategies that are designed to reduce potential harm to patients and lower the risk of exposure to illicit transactions and other consequences of overcrowding and poor patient management.

2. A neighborhood engagement plan that outlines engagement with key stakeholders in the neighborhood in which the opioid treatment program is located, including homeowners' associations, school administrators, neighboring businesses, community organizations, the city or town council and local law enforcement. The plan shall include information about ensuring consideration of and response to reasonable safety, security and trash removal concerns, concerns regarding adequate parking for patients and staff and other matters of concern to the entities prescribed in this paragraph.

3. A comprehensive plan related to the care of all patients to demonstrate how the opioid treatment program ensures that appropriate standards of care are met for medication-assisted treatment, including dosing, the provision of or referral to appropriate counseling and behavioral therapy services and peer support services, as required by the substance abuse and mental health services administration. This plan shall include whether the opioid treatment program provides the therapy services directly or refers patients for services through a separate provider. If the program refers patients for services through a separate provider, the report shall include strategies employed to ensure patients are able to access referred services in a timely manner.

4. A community relations and education plan that includes policies and procedures to measure and minimize the negative impact the opioid treatment program may have on the community, to promote peaceful coexistence and to plan for change in the program and program growth, including:

(a) Considering community needs and impacts when selecting a site for the program or program growth.

(b) Considering community input on the potential impact the program may have on the community.

(c) Maintaining a clean and orderly facility that does not impede pedestrian or traffic flow.

(d) Communicating with community leaders to foster good community relations.

(e) Developing and implementing a community relations plan that is specified to the needs of the program within its community and that includes the following actions:

(i) Establishing a liaison with community representatives to share information about the program, the community and mutual concerns and issues.

(ii) Identifying program personnel who will function as community relations coordinators and define the goals and procedures of the community relations plan.

(iii) Serving as a community resource on substance use and related health and social issues as well as promoting the benefit of medication-assisted treatment in preserving the public health.

(iv) Soliciting community input about medication-assisted treatment and the program's presence in the community.

(v) Developing program policies and procedures to effectively address or resolve community problems, including patient loitering and medication diversion, and ensuring that program operations do not affect community life adversely.

(vi) Documenting community contacts and community relations efforts and evaluating the effectiveness of activities over time in addressing outstanding problems or deficiencies.

(vii) Disclosing the process for community contacts to notify the administration's clinical resolution unit of any unresolved problems or deficiencies that includes, if appropriate, coordination with the state opioid treatment authority.

(viii) Developing communication mechanisms that provide interested parties and potential patients with general information about the program outside of regular operating hours.

5. A current diversion control plan that contains specific measures to reduce the possibility of diversion of controlled substances from legitimate treatment use.

C. The administration shall post the reports received pursuant to subsection B of this section on its public website. The administration shall notify each city or town in which an opioid treatment program is located of the posted report and allow the city or town thirty days to provide comments on the report. The administration shall consider the city's or town's comments on the report and approve or reject the annual report within thirty days after the close of the comment period. If the administration identifies areas of concern regarding compliance with state rules, federal regulations or administration policies, the administration must provide the opioid treatment program thirty days to revise the report. The administration shall also take any appropriate regulatory action based on the deficiencies identified. If the opioid treatment program does not submit the report within the required timelines or does not demonstrate enforcement of each plan contained in the report, or if the administration does not approve the report initially or after the requested revision, the administration, with appropriate notification to the provider, shall suspend reimbursement by the administration or its contractors to the opioid treatment program until the report is approved.

D. On or before January 15 of each year, the administration shall submit a report to the governor, the president of the senate and the speaker of the house of representatives that summarizes the reports submitted pursuant to subsection B of this section. A copy of the report shall be provided to the secretary of state.

E. For the purposes of this section:

1. "Medication-assisted treatment" has the same meaning prescribed in section 32-3201.01.

2. "Opioid treatment program" means a licensed and accredited program that is authorized to dispense medications for the treatment of opioid use disorders through highly structured protocols defined in federal regulations and state rules.

§ 36-2907.15 Opioid use disorder treatment; standards; centers of excellence; annual report

A. On or before December 31, 2019, the administration and the department of health services shall establish standards for designating centers of excellence for treating opioid use disorder statewide. The director of the Arizona health care cost containment system shall publish the draft standards on the administration's public website and hold at least two public hearings to receive input before implementing the standards. The administration shall publish the final standards for designating centers of excellence for treating opioid use disorder on its public website.

B. At a minimum, the standards established pursuant to subsection A of this section shall include:

1. Information regarding opioid treatment program providers and facilities.

2. Information regarding office-based opioid agonist treatment providers.

3. Parameters to ensure coordination of care that includes behavioral health, physical health and medication-assisted treatment for opioid use disorder.

4. Tracking and reporting requirements that identify:

(a) Treatment capacity.

(b) Quantitative metrics related to quality of care and patient outcomes.

(c) Qualitative metrics related to patient satisfaction.

5. An annual evaluation by a third-party auditor of the accuracy and completeness of data provided by the centers of excellence.

C. The administration shall establish a statewide learning collaborative to share best practices and establish peer-to-peer support between centers of excellence.

D. The administration shall maintain an accurate list of designated centers of excellence, including contact information, on its website.

E. Designated centers of excellence shall:

1. Increase capacity for treating opioid use disorder in opioid treatment programs and office-based opioid agonist treatment statewide.

2. Demonstrate effective delivery of medication-assisted treatment for opioid use disorder using evidence-based practices as defined by the substance abuse and mental health services administration, a federally designated accreditation agency for rehabilitation facilities and the administration.

3. Comply with all tracking, reporting and evaluation requirements.

4. Participate in the statewide learning collaborative.

F. On or before January 15 of each year, the administration shall submit a report to the governor, the president of the senate and the speaker of the house of representatives, and shall provide a copy to the secretary of state, outlining:

1. The standards for designating centers of excellence.

2. The statewide list of designated centers of excellence.

3. A summary of the performance of the centers of excellence.

§ 36-2907.16 Organ harvesting; insurance coverage limitations

A. Subject to the approval of the centers for medicare and medicaid services, the administration may limit coverage to a member for a human organ transplant or posttransplant care if either of the following applies:

1. The transplant operation is performed in the People's Republic of China or the Hong Kong special administrative region.

2. The human organ to be transplanted was procured by a sale or donation originating in the People's Republic of China or the Hong Kong special administrative region.

B. This section does not:

1. Require coverage for human organ transplants.

2. Limit the administration from denying coverage for any valid reason.

§ 36-2908 Provision of emergency and specialty services; reimbursement

A. Subject to the provisions of section 36-2909, services provided to members under this article who have been determined eligible but who have not yet enrolled in the system and who are in need of medical services on an emergency basis after they have been determined eligible, irrespective of county of residence, shall be reimbursed, subject to subsection B of this section, in accordance with rules adopted by the director if such services are not otherwise covered by a provider contract.

B. Services provided on an emergency basis to members or to persons after they have been determined eligible for such services but before they have enrolled in the system without a demonstrated emergency need in accordance with rules adopted by the director shall be reimbursed at no more than the rate for the service provided in other than an emergency services setting.

C. The director shall prescribe rules providing for the reimbursement of specialty services provided outside of the county of residence of the member if authorized by the member's primary care physician or primary care practitioner.

D. Services provided pursuant to this section shall be provided in accordance with rules adopted pursuant to section 36-2903.01, subsection E.

§ 36-2909 Emergency hospital services; retroactive coverage; costs

A. If a member receives emergency hospitalization and medical care on or after the date of eligibility determination or the eligibility effective date from a hospital that does not have a contract to care for the person, the administration or the contractor is liable only for the costs of emergency hospitalization and medical care up to the time the person is discharged or until the time the person can be transferred. The administration or the contractor is also liable for further care in the following circumstances:

1. If the attending physician reasonably determines that the condition of the person receiving emergency hospitalization and medical care is such that it is medically inadvisable to transfer the person.

2. If the administration or the contractor does not transport the person from the hospital providing care after it has been determined that the person can be transferred.

B. Except for charges for services subject to section 36-2908, subsection B, all charges incurred by an eligible person who has not yet enrolled for hospitalization and medical care under subsection A of this section are payable by the administration pursuant to section 36-2903.01, subsection G or as specified in contract by the contractor pursuant to the subcontracted rate or section 36-2904, subsection H or I.

C. As a condition to receiving reimbursement pursuant to subsection B of this section, a hospital that is not a contractor or subcontractor under the system must designate a primary care physician or primary care practitioner to act as a coordinator of the services provided to persons who have been determined eligible but have not yet enrolled, before the persons' enrollment, discharge or transfer.

D. Emergency hospitalization and medical care provided pursuant to this section shall be in accordance with rules adopted pursuant to section 36-2903.01, subsection E in order to qualify for reimbursement.

E. The director shall adopt rules that provide that members who have been determined eligible shall be enrolled with contractors as soon as practicable.

F. This section does not prevent the director or the contractor from denying payment for hospitalization or medical care that is not authorized or deemed medically necessary in accordance with rules adopted by the director.

§ 36-2910 Notification to system of nonemergency services

A. Except as otherwise specifically provided by this article, the system is financially responsible for only the costs of care provided by contractors to members.

B. For purposes of eligibility determination and enrollment in the system, the director may adopt rules to establish notification procedures for contractors and noncontracting providers of care provided to persons who may be eligible or who have been determined eligible. The director may condition payment for such services on the compliance of a contractor or noncontracting provider with the notification procedures. The director may adopt rules that establish procedures and notices for the transfer of members between contractors and noncontracting providers as the transfer relates to the system.

§ 36-2911 Payment of monthly premiums

A. The administration shall pay medicare part B premiums pursuant to federal law for and on behalf of a member who is eligible pursuant to section 36-2901, paragraph 6, subdivision (a), item (i) or (ii) and who is enrolled pursuant to this article and article 2 of this chapter.

B. The administration shall pay the medicare part A hospital premium for each qualified person with a disability and working individual who is determined eligible pursuant to section 1905(s) of title XIX of the social security act. The administration shall determine the eligibility of all persons who are qualified with a disability and working individuals in accordance with section 6408(d) of the omnibus budget reconciliation act of 1989. The administration, in accordance with federal law, may require certain eligible qualified persons with a disability and working individuals to contribute to the cost of the monthly premium.

§ 36-2912 Children's rehabilitative services program; definition

A. The administration shall:

1. Establish a children's rehabilitative services program for children who have a chronic illness or physical disability and shall develop, implement, monitor, supervise, control and establish policies for that program.

2. Develop and implement policies to determine medical eligibility for the children's rehabilitative services program.

3. Develop and implement all rules and policies for the operation of the children's rehabilitative services program.

4. Establish and administer a program of service for children and for individuals determined to be eligible before they reach twenty-one years of age who have a chronic illness or physical disability or who are suffering from a condition that leads to a chronic illness or a physical disability and are in active treatment. The program shall provide for:

(a) Medical, surgical, corrective and other services and care.

(b) The receipt and expenditure of monies made available to the administration for services to children who have a chronic illness or physical disability by the federal government, this state or its political subdivisions or from other sources, excluding monies received from parents or guardians for the care of children.

(c) Making necessary expenditures pursuant to the requirements of this section.

(d) Establishing and maintaining safeguards relating to the confidentiality of medical records.

(e) The acceptance and use of federal monies for children's rehabilitative services at the discretion of the administration and subject to any limitations imposed by annual state appropriations.

(f) Any other activities the administration determines are necessary for the effective operation of the program.

B. Pursuant to the requirements of section 36-2903, the director shall prepare and issue a public request for proposals, including a proposed contract format, at least once every five years to contract for the care and treatment of children who have a chronic illness or physical disability.

C. The total amount of state monies that the administration may spend in any fiscal year for children's rehabilitative services may not exceed the amount appropriated or authorized by section 35-173 for that purpose. This subsection does not impose a duty on an officer, agent or employee of this state to discharge a responsibility or to create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

D. Pursuant to the requirements of section 36-2923, the administration shall coordinate benefits provided pursuant to this section so that any costs payable by the administration are costs avoided or recovered from any available provider of first-party health insurance benefits. The administration shall act as payor of last resort unless specifically required by federal law.

E. For the purposes of this section, "children who have a chronic illness or physical disability" means children who are medically eligible for the children's rehabilitative services program and who require covered medical, surgical or therapeutic services for a covered condition that is medically disabling or potentially disabling, as prescribed by the administration.

§ 36-2913 Systems funds; funding

A. The Arizona health care cost containment system fund, long-term care system fund and the third-party liability and recovery audit fund are established. The funds shall be used to pay administrative and program costs associated with the operation of the system established pursuant to this article and the long-term care system established pursuant to article 2 of this chapter.

B. Separate accounts, including but not limited to a reserve fund, may be established within the funds. Different accounts within the funds shall be established in order to separately account for expense and income activity associated with the system established pursuant to this article and article 2 of this chapter.

C. The Arizona health care cost containment system fund and long-term care system fund shall be comprised of:

1. Monies paid by each of the counties of this state of the amounts determined or withheld by the state treasurer pursuant to section 11-292.

2. Monies paid by each county resolving to participate in the system equal to the actual cost, as limited by the board of supervisors, together with employee contributions of providing hospitalization and medical care under the system to full-time officers and employees of the county and its departments and agencies.

3. Monies paid by this state equal to the actual cost, as limited by section 38-651, together with employee contributions of providing hospitalization and medical care under the system to full-time officers and employees of this state, of its departments and agencies and of cities, towns and school districts of this state.

4. Monies drawn against appropriations made by this state for the costs of operating the Arizona health care cost containment system or the long-term care system. Monies shall be drawn against appropriations and transferred from the fund from which they were appropriated on an as needed basis only.

5. Gifts, donations and grants from any source.

6. Federal monies made available to this state for the operation of the Arizona health care cost containment system or the long-term care system.

7. Interest paid on monies deposited in the fund.

8. Reimbursements for data collection.

D. The third-party liability and recovery audit fund is comprised of monies paid by first-party payors, third-party payors, lien and estate recoveries and medical service providers for recovery audit contractor findings.

E. All monies in the funds other than monies appropriated by the state shall not lapse.

F. All monies drawn against appropriations made by this state remaining in the funds at the end of the fiscal year shall revert to the fund from which they were appropriated and drawn, and the appropriation shall lapse in accordance with section 35-190. Notwithstanding the provisions of section 35-191, subsection B, the period for administrative adjustments shall extend for only six months for appropriations made for system covered services.

G. Notwithstanding sections 35-190 and 35-191, all approved claims for system covered services presented after the close of the fiscal year in which they were incurred shall be paid either in accordance with subsection F of this section or in the current fiscal year with the monies available in the funds established by this section.

H. Claims for system covered services that are determined valid by the director pursuant to section 36-2904, subsection G and the department's grievance and appeal procedure shall be paid from the funds established by this section.

I. For purposes of this section, system covered services exclude administrative charges for operating expenses.

J. All payments for claims from the funds established by this section shall be accounted for by the administration by the fiscal year in which the claims were incurred, regardless of the fiscal year in which the payments were made.

K. Notwithstanding any other law, county owned or contracted providers and special health care district owned or contracted providers are subject to all claims processing and payment requirements or limitations of this chapter that are applicable to noncounty providers.

§ 36-2914 Medical care consortiums; lawful trade practices

Notwithstanding title 44, chapter 10, article 1, actions taken by providers, potential providers, contractors and other bidders in specific accordance with this article in forming consortiums or in otherwise entering into contracts to provide medical care shall be deemed to be conducted at the direction of this state and shall be considered to be lawful trade practices.

§ 36-2915 Lien of administration on damages recovered by injured person; perfection, recording, assignment and notice of lien

A. The administration is entitled to a lien for the charges for hospital or medical care and treatment of an injured person for which the administration or a contractor is responsible, on any and all claims of liability or indemnity for damages accruing to the person to whom hospital or medical service is rendered, or to the legal representative of such person, on account of injuries giving rise to such claims and which necessitated such hospital or medical care and treatment. The member or the member's legal representative must provide written notice to the administration within twenty calendar days after the commencement of a civil action or other proceeding to establish the liability of any third party or to collect monies payable from accident insurance, liability insurance, workers' compensation, health insurance, medical payment insurance, underinsured coverage, uninsured coverage or any other first or third party source.

B. In order to perfect a lien granted by this section, the director or the director's authorized representative, before or within sixty days from the date of notification to the administration of the hospital discharge or rendering of medical care and treatment, shall record in the office of the recorder of the county in which the injuries were incurred a verified statement in writing setting forth the name and address of the patient as they appear on the records of the administration, the name and address of the administration, the dates of admission to and discharge of the patient from the hospital or the dates on which medical care and treatment were provided to the patient, the amount estimated to be due for hospital or medical care and treatment, and, to the best of the director's knowledge, the names and addresses of all persons, firms or corporations and their insurance carriers alleged by the injured person or that person's legal representative to be liable for damages arising from the injuries for which he was hospitalized or for which medical care and treatment were provided. However, the director or the director's authorized representative is not required to include the address of the patient in the verified statement if the administration's records indicate that the patient's injuries may have resulted from an offense against the patient as defined in section 13-105. The director or the director's authorized representative, within five days after recording the lien, shall mail a copy of the lien, postage prepaid, to the patient and to each person, firm or corporation, including insurance carriers, alleged to be liable for liability or indemnity damages, at the address given in the statement. The recording of the lien is notice of the lien to all persons, firms or corporations, including insurance carriers, liable for liability or indemnity damages, whether or not they are named in the lien.

C. The recorder shall endorse on a lien recorded as provided by this section the date and hour of receipt and such facts as are necessary to indicate that it has been recorded.

D. The lien may be assigned in whole or in part to a contractor that is responsible for hospital or medical services.

E. The director shall establish by rule procedures for a contractor and a noncontracting provider to notify the administration concerning the delivery of hospital or medical services to a person who may have claims for damages.

F. Notwithstanding any other law, a lien or claim provided for by this article has priority over a lien of the department pursuant to section 36-596.01, a lien of the counties pursuant to section 11-291, a health care provider lien pursuant to title 33, chapter 7, article 3 and a claim against a third party payor. A lien of the department of economic security pursuant to section 36-596.01, a lien of a special health care district pursuant to section 48-5541.01, subsection N and a lien of the counties pursuant to section 11-291 has priority over a health care provider lien pursuant to title 33, chapter 7, article 3 and a claim against a third party payor.

G. A lien authorized pursuant to this chapter may be amended to reflect current charges. However, if the administration is given notice of an impending settlement of the member's claim at least fifteen working days before the final settlement of that claim, the lien may not be amended after the time of final settlement.

H. A public entity shall compromise a claim it has pursuant to this section or section 11-291, 12-962, 36-596, 36-596.01, 36-2903, 36-2935 or 36-2956 if, after considering the factors listed in subsection I of this section, the compromise provides a settlement of the claim that is fair and equitable.

I. In determining the extent of the compromise of the claim required by subsection H of this section, the public entity shall consider the following factors:

1. The nature and extent of the patient's injury or illness.

2. The sufficiency of insurance or other sources of indemnity available to the patient.

3. Any other factor relevant for a fair and equitable settlement under the circumstances of a particular case.

J. Notwithstanding any other law, for the purpose of recovering monies from third party payors as provided by this section, a lien that includes a cover sheet pursuant to subsection K of this section and that is filed by an entity under contract with the administration, a health plan or a program contractor, or the authorized representatives of these entities, is considered filed by the state for the purposes of payment of county recorder fees pursuant to section 11-475, subsection A, paragraph 2.

K. A health plan, a program contractor, an entity under contract with the administration or an authorized representative of the health plan, program contractor or entity shall include a cover sheet, as prescribed by the administration, when filing a lien on behalf of the administration pursuant to this section. The cover sheet shall be signed by the director on the administration's letterhead with the statutory authority of the health plan, program contractor, entity or authorized representative of the health plan, program contractor or entity to file a lien on behalf of the administration.

§ 36-2916 Release of claim by injured person ineffective as to system; action to enforce lien; release of lien

A. A release of a claim on which a lien is imposed pursuant to section 36-2915 is not valid or effective as against the lien unless the director joins in the release or executes a release of the lien.

B. If any amount has been or is to be collected by the injured person or his legal representative from or on account of the person, firm or corporation, including insurance carriers liable for liability or indemnity damages by reason of a judgment, settlement or compromise, the director may enforce the lien by action against the patient or the person, firm or corporation, including insurance carriers, liable for liability or indemnity damages. Such action shall be commenced and tried in the county in which the lien is filed, unless the court orders that the action be removed to another county for cause. If the director prevails in the action, the court may allow the administration its reasonable attorney fees and disbursements. Such an action shall be commenced within two years after the entry of the judgment or the making of the settlement or compromise.

C. Within thirty days after a lien established pursuant to section 36-2915 is satisfied, the director shall issue a release of the lien to the person, firm or corporation against which the lien was claimed. The release shall be a document which conforms to the requirements of section 11-480.

§ 36-2917 Review committees; immunity; confidentiality; definition

A. Any person who, in good faith and without malice and in connection with duties or functions of a review committee of the system, takes an action or makes a decision or recommendation as a member, agent or employee of a review committee of the system or related to the duties or functions of a review committee of the system or who furnishes records, information or assistance that is related to the duties of a review committee is not subject to liability for civil damages in consequence of that action. The court shall determine the presence of malice by clear and convincing evidence. This section does not relieve a person of liability that arises from that person's medical treatment of a patient.

B. The information considered by a review committee of the system or related to the duties or functions of a review committee of the system and the records of their actions and proceedings are confidential and are not subject to subpoena or order to produce except as provided in subsection C of this section and in proceedings before an appropriate state licensing or certifying agency. A member of a review committee of the system or its staff engaged in assisting such committee or any other person assisting or furnishing information to such committee shall not be subpoenaed to testify in any judicial or quasi-judicial proceeding if the subpoena is based solely on those activities.

C. This section does not affect a patient's claim to privilege or prevent the subpoena of a patient's medical records that are otherwise subject to discovery. The contents and records of review committee procedures are confidential and inadmissible in court.

D. Information considered by a review committee of the system and the records of its actions and proceedings may be transmitted by the director to an appropriate state licensing or certifying agency. Information considered by a review committee of the system or related to the duties or functions of a review committee of the system and the records of its actions and proceedings that are used pursuant to subsection B of this section or transmitted pursuant to this subsection by a state licensing or certifying agency shall be kept confidential and shall be subject to the same provisions concerning discovery and use in legal actions as are the original information and records in the possession and control of a review committee of the system or related to the duties and functions of a review committee of the system.

E. This section does not prevent the director from supervising or monitoring contractors as otherwise provided for in this chapter or rules adopted pursuant to this chapter.

F. For the purposes of this section, "review committee of the system" means any organizational structure of the administration, or of a contractor contracting with the administration pursuant to section 36-2906, the purpose of which is one or more of the following:

1. To evaluate and improve the quality of health care.

2. To review and investigate the conduct of licensed health care providers in order to determine whether disciplinary action should be imposed.

3. To encourage proper and efficient utilization of health care services and facilities.

§ 36-2917.01 Clinical oversight review committee; duties; annual report

A. The director shall establish an internal clinical oversight review committee to review clinical data specific to agency initiatives and populations identified by the director, including data on behavioral health services for persons receiving behavioral health services administered by the administration.

B. The committee shall include the director or the director's designee and experts within the administration in the areas of quality performance, behavioral health, operations, finance and data analytics.

C. The committee shall do all of the following:

1. Meet at least once every three months.

2. Review clinical data specific to populations and initiatives being undertaken by the administration.

3. Analyze and review clinical quality performance metrics that are indicative of overall system performance and make recommendations on metrics that may enhance system performance, clinical outcomes and member experience.

4. Advise the director on challenges, successes and data trends and identify potential service delivery improvements.

5. For behavioral health services, solicit additional information and perspectives related to the clinical data or clinical quality performance metrics reviewed by the committee from patients, patient advocates and other informed parties.

D. The committee is a review committee of the system pursuant to section 36-2917 and its activities are subject to that section.

E. On or before February 1, 2018 and February 1 of each year thereafter, the administration shall provide a report to the governor, the president of the senate, the speaker of the house of representatives, the chairperson of the health and human services committee, or its successor, in the senate and the chairperson of the health committee, or its successor, in the house of representatives and shall provide a copy of this report to the secretary of state. The report shall include a summary of topics reviewed by the clinical oversight review committee in the preceding year and any recommendations relating to quality performance metrics stemming from the committee's activities.

§ 36-2918 Prohibited acts; penalties; subpoena power

A. A person may not present or cause to be presented to this state or to a contractor:

1. A claim for a medical or other item or service that the person knows or has reason to know was not provided as claimed.

2. A claim for a medical or other item or service that the person knows or has reason to know is false or fraudulent.

3. A claim for payment that the person knows or has reason to know may not be made by the system because:

(a) The person was terminated or suspended from participation in the program on the date for which the claim is being made.

(b) The item or service claimed is substantially in excess of the needs of the individual or of a quality that fails to meet professionally recognized standards of health care.

(c) The patient was not a member on the date for which the claim is being made.

4. A claim for a physician's service or an item or service incidental to a physician's service, by a person who knows or has reason to know that the individual who furnished or supervised the furnishing of the service:

(a) Was not licensed as a physician.

(b) Obtained the license through a misrepresentation of material fact.

(c) Represented to the patient at the time the service was furnished that the physician was certified in a medical specialty by a medical specialty board if the individual was not certified.

5. A request for payment that the person knows or has reason to know is in violation of an agreement between the person and this state or the administration.

B. A person who violates a provision of subsection A of this section is subject, in addition to any other penalties that may be prescribed by federal or state law, to a civil penalty of not to exceed two thousand dollars for each item or service claimed and is subject to an assessment of not to exceed twice the amount claimed for each item or service.

C. The director or the director's designee shall make the determination to assess civil penalties and is responsible for the collection of penalty and assessment amounts. The director shall adopt rules that prescribe procedures for the determination and collection of civil penalties and assessments. Civil penalties and assessments imposed under this section may be compromised by the director or the director's designee in accordance with criteria established in rules. The director or director's designee may make this determination in the same proceeding to exclude the person from system participation.

D. A person who is adversely affected by a determination of the director or the director's designee under this section may appeal that decision in accordance with provider grievance provisions set forth in rule. The final decision is subject to judicial review in accordance with title 12, chapter 7, article 6.

E. Amounts recovered under this section shall be deposited in the state general fund. The amount of such penalty or assessment may be deducted from any amount then or later owing by the administration or this state to the person against whom the penalty or assessment has been imposed.

F. If a civil penalty or assessment imposed pursuant to subsection C of this section is not paid, this state or the administration shall file an action to collect the civil penalty or assessment in the superior court in Maricopa county. Matters that were raised or could have been raised in a hearing before the director or in an appeal pursuant to title 12, chapter 7, article 6 may not be raised as a defense to the civil action. An action brought pursuant to this subsection shall be initiated within six years after the date the claim was presented, except that the time to file a collection action is tolled either:

1. After any administrative action arising out of or referencing the wrongful acts is commenced and until the action's final resolution, including any legal challenges to the action.

2. While the state and the administration did not know, and with the exercise of reasonable diligence, should not have known, that a claim was false, fraudulent or not provided as claimed.

G. Pursuant to an investigation of prohibited acts or fraud and abuse involving the system, the director, and any person designated by the director in writing, may examine any person under oath and issue a subpoena to any person to compel the attendance of a witness. The administration by subpoena may compel the production of any record in any form necessary to support an investigation or an audit. The administration shall serve the subpoenas in the same manner as subpoenas in a civil action. If the subpoenaed person does not appear or does not produce the record, the director or the director's designee by affidavit may apply to the superior court in the county in which the controversy occurred and the court in that county shall proceed as though the failure to comply with the subpoena had occurred in an action in the court in that county.

§ 36-2918.01 Duty to report fraud or abuse; immunity

A. All contractors, subcontracted providers of care and noncontracting providers shall notify the director or the director's designee immediately in a written report of any cases of suspected fraud or abuse. The director shall review the report and conduct a preliminary investigation to determine if there is sufficient basis to warrant a full investigation. If the findings of a preliminary investigation give the director reason to believe that an incident of fraud or abuse has occurred, the matter shall be referred to the attorney general.

B. Any person making a complaint or furnishing a report, information or records in good faith pursuant to this section is immune from any civil liability by reason of that action unless that person has been charged with or is suspected of the fraud or abuse reported.

C. Any contractor, subcontracted provider of care or noncontracting provider who fails to report pursuant to this section commits an act of unprofessional conduct and is subject to disciplinary action by the appropriate professional regulatory board or department.

§ 36-2919 Absence of federal financial participation; effect on system operation

If at any time federal monies as described in section 36-2903.01, subsection B, paragraph 5 are denied, not renewed or become unavailable for any reason the provisions of this article relating to the operation of the system are suspended and the director shall notify each provider of that fact. Neither the administration nor a provider shall provide services otherwise authorized by this article or be liable for the cost of services provided after federal monies become unavailable.

§ 36-2920 Monthly financial report

A. The director shall submit a monthly report to the president of the senate and the speaker of the house of representatives of the following:

1. The actual year to date expenditures and projected annual expenditures.

2. The actual member months by rate code.

3. The actual caseload, showing separately the caseload for title XIX and qualified medicare beneficiary populations.

4. The number of vacant positions, by division.

5. Monies recovered monthly from third party payors.

6. Monies received under agreements pursuant to section 36-2925 and the actual year to date expenditures.

B. The report shall be submitted on or before the twenty-fifth day of the following month.

§ 36-2922 Medical services stabilization fund; definition

A. Subject to the availability of monies, the medical services stabilization fund is established. The administration shall administer the fund as directed by the joint legislative budget committee pursuant to subsection E of this section.

B. The fund shall be used only to offset increases in the cost of providing levels of services established pursuant to this article.

C. Notwithstanding chapter 6, article 8 of this title, the fund may also be used to offset increases in the cost of providing levels of services established pursuant to this article to persons eligible for those services pursuant to section 36-2901, paragraph 6, subdivision (a) if the increase results from a decrease in federal funding for levels of service including a decrease in the federal match rate for levels of service provided to persons eligible pursuant to section 36-2901, paragraph 6, subdivision (a).

D. If, during a fiscal year, the administration determines that the amount the legislature appropriated for that fiscal year for services provided to persons who are determined to be eligible for services pursuant to section 36-2901, paragraph 6, subdivision (a) is insufficient to pay for unanticipated increases in the cost of providing those services, the administration shall provide written notice of the deficiency to the chairperson of the joint legislative budget committee and the director of the governor's office of strategic planning and budgeting with evidence supporting the determination of deficiency.

E. On receiving notice under subsection D of this section, the chairperson of the joint legislative budget committee shall call a public committee meeting to review the evidence of the deficiency presented by the administration. After reviewing the evidence, the committee may recommend to the administration to withdraw an amount from the fund that is equal to the deficiency to pay the increases in the cost of providing levels of service.

F. For the purposes of this section, "levels of service" means the provider payment methodology, eligibility criteria and covered services established pursuant to this article and in effect on July 1, 1993.

§ 36-2923 Insurer claims data reporting requirements; administration as payor of last resort; report; definition

A. A health care insurer shall:

1. Provide all enrollment information necessary to determine the time period in which a person who is defined as an eligible person pursuant to section 36-2901, paragraph 6, subdivision (a) or that person's spouse or dependents may be or may have been covered by the health care insurer and the nature of that coverage. The information shall be provided to the administration in the manner prescribed by the secretary of the United States department of health and human services or in a manner agreed to between the health care insurer and the administration.

2. Accept this state's right of recovery from a third party payor pursuant to section 36-2903 and the assignment to this state of any right of an individual or other entity to payment from the third party payor for an item or service for which payment has been made pursuant to this chapter. This paragraph does not expand the scope of coverage, benefits or rights under the policy issued by the health care insurer.

3. Respond within sixty days to any inquiry made by the director regarding a claim for payment for any health care item or service that is submitted not later than three years after the date of the provision of the health care item or service. This paragraph applies to a claim in which the administration determines there is a reasonable belief that the individual was insured by the health care insurer on the date of service referenced by the claim.

4. Not deny a claim for payment submitted by this state pursuant to this chapter solely on the basis of lack of prior authorization if the administration authorized the item or service. This paragraph does not expand the scope of coverage, benefits or rights under the policy issued by the health care insurer.

5. Not deny a claim submitted by this state solely on the basis of the date of the submission of the claim, the type or format of the claim form or the failure to present proper documentation at the point of sale that is the basis of the claim if the following conditions have been met:

(a) The claim is submitted by this state in the three-year period beginning on the date on which the item or service was furnished.

(b) An action by this state to enforce its rights with respect to the claim is commenced within six years after this state submitted the claim. The health care insurer may deny the claim submitted by this state if the health care insurer has already paid the claim in accordance with the benefit plan under which the member was covered by the health care insurer on the date of service.

B. On or before January 1 of each year, the director shall publish a report on health care insurer compliance with the claims data reporting requirements of this section. The report shall include the following:

1. A list of each health care insurer that has not materially complied with the requirements of this section.

2. Corrective actions, if any, that health care insurers have taken to comply with the requirements of this section.

C. The director shall submit a copy of each report to the governor, the president of the senate and the speaker of the house of representatives and shall provide a copy of each report to the secretary of state.

D. Any information obtained by the director or the administration under this section shall be maintained as confidential as required by the health insurance portability and accountability act of 1996 (P.L. 104-191; 110 Stat. 1936) and other applicable law and shall be used solely for the purpose of determining whether a health care insurer was also providing coverage to an individual during the period that the individual was an eligible member, for the purposes of avoiding payments by the system for services covered through other insurance and for enforcing the administration's right to assignment under subsection A of this section.

E. For the purposes of this section, "health care insurer" means a self-insured health benefit plan, a group health plan as defined in section 607(1) of the employment retirement income security act of 1974, a pharmacy benefit manager or any other party that by statute, contract or agreement is responsible for paying for items or services provided to an eligible person under this chapter, including:

1. An entity transacting disability insurance as defined in section 20-253.

2. Hospital service corporations, medical service corporations, dental service corporations, optometric service corporations and hospital, medical, dental and optometric service corporations as defined in section 20-822.

3. A prepaid dental plan organization as defined in section 20-1001.

4. A health care services organization as defined in section 20-1051.

5. An entity transacting group disability insurance pursuant to section 20-1401.

6. An entity transacting blanket disability insurance pursuant to section 20-1404.

§ 36-2924 Child care and AHCCCS joint program

The department of economic security and the Arizona health care cost containment system administration shall establish and, as provided in the empower waiver, maintain a joint program that extends child care for twenty-four months and Arizona health care cost containment system benefits for twelve months beginning October 1, 2002 for current and former recipients of title XIX medicaid under the provisions of Public Law 104-193, section 431 and cash assistance who are employed and meet federal requirements for such transitional benefits as defined in the family support act of 1988 (P.L. 100-485, 42 United States Code section 607).

§ 36-2925 Information system; administrative services; agreements with other states; report

A. Notwithstanding any other law, the administration may enter into an agreement with other states to design, develop, install and operate an information system and related services or other administrative services.

B. An agreement entered into pursuant to this section shall require that the administration is compensated for all agreed on direct and indirect costs associated with providing the information system and services.

C. An agreement with another state entered into pursuant to this section shall include specific terms that hold the state harmless from the imposition of any damages, sanctions or penalties or the withholding of any monies due the state for services provided, with respect to any matter related to performance under that agreement.

D. The agreement must result in a cost savings to the administration that is designated in the agreement as a portion of the administration's operating costs that the contracting state agrees to pay.

E. All monies that are received by the administration and that are based on the agreement shall be deposited, pursuant to sections 35-146 and 35-147, in the administration's intergovernmental service fund established by section 36-2927.

F. The administration may enter into intergovernmental agreements with other agencies of this state to provide the facilities, equipment or services that are necessary to fulfill an agreement entered into pursuant to this section. The intergovernmental agreement shall specify whether the payment for facilities, equipment or services shall be made by the contracting state directly to the agency or through the intergovernmental service fund established by section 36-2927.

G. The administration shall submit all intergovernmental agreements entered into pursuant to this section to the governor for approval before it finalizes the agreement.

H. The administration shall report annually by January 1 on the status of any agreement with another state to the speaker of the house of representatives, the president of the senate and the chairmen of the house and senate appropriations committees. The report shall include the status report of the specific projects that are subject to the agreement, the financial status of the project and a description of any personnel initiatives that the administration has initiated with monies received from the agreement with another state.

§ 36-2926 Use of cost savings; preparation of budget recommendations; cooperation of other agencies

A. The administration shall use the cost savings generated from agreements entered into pursuant to section 36-2925 to supplement monies that are appropriated by the legislature. The administration shall use the cost savings to:

1. Subject to title 41, chapter 4, article 4, develop and operate employee recruitment and retention programs that may include creating positions, special salary plans and pay practices and performance compensation programs approved by the director and the department of administration.

2. Implement technology projects to upgrade hardware or software used by the administration in the operation of the system.

B. The governor's office of strategic planning and budgeting and the joint legislative budget committee shall not recommend using the cost savings generated by section 36-2925 to supplant state or federal monies used for the operation or administration of the programs operated by the administration.

C. The department of administration shall assist the administration in developing and operating employee recruitment and retention programs specified in subsection A of this section.

§ 36-2927 Intergovernmental service fund; funding

A. The intergovernmental service fund is established. The administration shall administer the fund as a continuing appropriation. On notice from the administration, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

B. The fund shall be used to pay all costs, including staff positions, incurred pursuant to an agreement entered into pursuant to section 36-2925 and for the purposes authorized by section 36-2926.

C. Separate accounts may be established within the fund for each agreement and the activities authorized by section 36-2926.

D. The intergovernmental service fund consists of:

1. All monies deposited in the fund pursuant to an agreement authorized by section 36-2925.

2. The cost savings that are received pursuant to section 36-2925, subsection D and that are earned from the appropriations made by this state for the costs of operating the system in this chapter.

3. Federal monies available to this state for the operation of the system in this chapter.

4. Gifts, donations and grants from any source.

5. Interest on monies deposited in the fund.

E. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations. The cost savings that are earned from appropriations made by this state and remaining in the fund at the end of the fiscal year do not revert to the fund from which they were appropriated.

F. The administration may continue to make expenditures from the fund, subject to the availability of monies in the fund, to fulfill its commitments under an agreement authorized by section 36-2925 for costs incurred but not processed by the administration during the fiscal years in which the agreement was in effect.

G. The administration shall account for all payments from the intergovernmental service fund by the fiscal year in which the costs were incurred, regardless of the fiscal year in which the payments were made.

§ 36-2928 Budget neutrality compliance fund; nonlapsing

A. The budget neutrality compliance fund is established consisting of third party liability recoveries pursuant to section 36-2913, county contributions deposited pursuant to section 11-292, subsection O and section 11-300, subsection E and appropriations. The administration shall administer the fund. Monies in the fund are continuously appropriated and do not revert to the state general fund.

B. On notice from the administration, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the Arizona tobacco litigation settlement fund established by section 36-2901.02.

C. The administration shall use any remaining fund monies to pay for expenditures made pursuant to section 36-2901.02, subsection B, paragraph 1 if sufficient monies are not available in the Arizona tobacco litigation settlement fund established by section 36-2901.02, except that the administration shall use fund monies deposited pursuant to section 11-292, subsection P for any direct and indirect eligibility costs associated with the expansion of program services.

D. On or before June 30 of each year, the administration shall transfer from the Arizona tobacco litigation settlement fund established by section 36-2901.02 an amount necessary to reimburse the fund established pursuant to this section for its expenditures made to cover costs associated with the expanded definition of eligibility pursuant to section 36-2901.01, 36-2901.04 or 36-2903.03.

E. Notwithstanding subsection C of this section, in fiscal year 2001-2002, the administration shall use forty-six million seven hundred thirty-six thousand dollars of fund monies for maintenance of effort for the state match for persons who are determined eligible pursuant to section 36-2901.01, 36-2901.04 or 36-2903.03. Beginning in fiscal year 2002-2003 and each fiscal year thereafter, the administration shall adjust this amount for inflation based on the GDP price deflator as defined in section 41-563.

§ 36-2929 Services to persons with disabilities; eligibility; premiums

A. Subject to the approval of the centers for medicare and medicaid services, beginning on January 1, 2002, the Arizona health care cost containment system administration shall provide services pursuant to this article to any person with a disability who is defined as eligible pursuant to section 36-2901, paragraph 6, subdivision (g), who meets the income requirements of subsection B of this section and who has too much income to qualify for the system pursuant to section 36-2901, paragraph 6, subdivision (a).

B. A person meets the income requirements of this section if the person's countable income does not exceed two hundred fifty per cent of the federal poverty guidelines. The administration shall use the supplemental security income methodology. For the purposes of this subsection, countable income does not include the person's unearned income, the person's spouse's or any other family member's earned or unearned income or a deduction for a minor child.

C. The administration shall adopt rules for the collection of premiums from persons who qualify for services pursuant to this section. The premium shall not exceed two per cent of the person’s countable income.

D. The administration shall develop and implement a process for eligibility determinations for persons who apply for eligibility and annual redeterminations for continued eligibility. The administration shall also develop and implement a process to determine medically improved disabilities. The administration may enter into an intergovernmental agreement with the department of economic security or may contract with participating health plans to conduct eligibility determinations or redeterminations. The administration may not use a resource test to determine or redetermine eligibility.

§ 36-2930 Prescription drug rebate fund; exemption; definition

A. The prescription drug rebate fund is established consisting of prescription drug rebate collections, interest from prescription drug rebate late payments and federal monies made available to this state for the operation of the Arizona health care cost containment system prescription drug rebate program. The administration shall administer the fund. Nonfederal monies in the fund are subject to annual legislative appropriation. Federal monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to the lapsing of appropriations.

B. Monies in the fund shall be used to return the federal share of prescription drug rebate collections and interest from late payments to the centers for medicare and medicaid services by offsetting future federal draws, to pay for the administrative costs of the prescription drug rebate program and as the nonfederal share for payments to contractors or providers in the administration's medical services programs. The nonfederal share of prescription drug rebate collections and interest from late payments include rebates relating to programs administered by the department of economic security, the department of child safety, the department of health services and other governmental entities that contribute to the nonfederal share for prescription drugs.

C. For the purposes of this section, "administrative costs of the prescription drug rebate program" includes:

1. Payments to the prescription drug rebate vendor.

2. Administrative costs of the administration in support of the prescription drug rebate program.

§ 36-2930.01 Members; missed medical appointments; fee; provider remedy

If a member misses a scheduled appointment with a physician or primary care practitioner who provides medical services pursuant to this article without canceling the appointment before the time for which it is scheduled, the physician or primary care practitioner may prohibit the member from rescheduling until the member has paid a twenty-five dollar missed appointment fee to the provider.

§ 36-2930.02 Intergovernmental agreements for county behavioral health services fund; purpose

The intergovernmental agreements for county behavioral health services fund is established consisting of county monies received by the administration to provide behavioral health services to persons identified through agreements with the counties. The administration shall administer the fund. Monies in the fund are continuously appropriated.

§ 36-2930.03 340B drug pricing; requirements; applicability; annual report; definitions

A. Beginning the later of January 1, 2017 or on approval by the centers for medicare and medicaid services:

1. 340B covered entities shall submit point-of-sale prescription and physician-administered drug claims for members for drugs that are identified in the 340B pricing file, whether or not the drugs are purchased under the 340B drug pricing program. The claims shall include a professional fee and the lesser of either:

(a) The actual acquisition cost.

(b) The 340B ceiling price.

2. The administration or a contractor shall reimburse claims for drugs that are identified in the 340B pricing file and that are dispensed by 340B covered entities or administered by 340B covered entity providers, whether or not the drugs are purchased under the 340B drug pricing program, at the amount submitted pursuant to paragraph 1 of this subsection plus a professional fee as determined by the administration unless a contract between the 340B covered entity and the administration or a contractor specifies a different professional fee.

3. The administration and its contractors may not reimburse any contracted pharmacy for drugs dispensed as part of the 340B drug pricing program. The administration and its contractors shall reimburse contracted pharmacies for drugs that are not purchased, dispensed or administered as part of or subject to the 340B drug pricing program. A contracted pharmacy shall be reimbursed at the price and professional fee set forth in the contract between the contracted pharmacy and the administration or its contractors.

B. This section does not require the administration or its contractors to reimburse a pharmacy that does not have a contract with the administration or its contractors.

C. This section does not apply to licensed hospitals and outpatient facilities that are owned or operated by a licensed hospital.

D. On or before November 1, the administration shall report to the governor, the president of the senate, the speaker of the house of representatives and the joint legislative budget committee regarding the technological feasibility and costs of applying this section to licensed hospitals and outpatient facilities that are owned or operated by a licensed hospital.

E. For the purposes of this section:

1. "340B ceiling price" means the maximum price that drug manufacturers may charge covered entities participating in the 340B drug pricing program as reported by the drug manufacturer to the United States department of health and human services. The 340B ceiling price per unit is defined as the average manufacturer price minus the federal unit rebate amount.

2. "340B covered entity" means a covered entity as defined by 42 United States Code section 256b that participates in the 340B drug pricing program.

3. "340B drug pricing program" means the discount drug purchasing program described in 42 United States Code section 256b.

4. "Actual acquisition cost" means the purchase price of a drug paid by a pharmacy net of all discounts, rebates, chargebacks and other adjustments to the price of the drug, not including professional fees.

5. "Administration" has the same meaning prescribed in section 36-2901 and includes the administration's contracted pharmacy benefits manager.

6. "Contracted pharmacy" means a separate pharmacy with which a 340B covered entity contracts to provide comprehensive pharmacy services using medications that are subject to 340B drug pricing.

7. "Contractor" has the same meaning prescribed in section 36-2901 and includes a contractor's pharmacy benefits manager.

8. "Professional fee" means the amount paid for the professional services provided by the pharmacist for dispensing a prescription. Professional fee does not include any payment for the drug being dispensed.

§ 36-2930.04 Delivery system reform incentive payment fund; purpose; exemption; expenditure plan review

A. The delivery system reform incentive payment fund is established. The fund shall be used to pay all costs incurred pursuant to the section 1115 waiver authority associated with delivery system reform incentive payments and designated state health programs.

B. The administration shall administer the fund, and the fund is continuously appropriated. On notice from the administration, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

C. Separate accounts may be established within the fund for each designated state health program.

D. The delivery system reform incentive payment fund consists of:

1. All monies deposited in the fund pursuant to the section 1115 waiver authority associated with delivery system reform incentive payments and designated state health programs.

2. Gifts, donations and grants from any source.

3. Federal monies available to this state.

4. Interest on monies deposited in the fund.

E. Monies in the fund are exempt from the provisions of section 35-190, relating to lapsing of appropriations.

F. Before the initial deposit of any monies in the fund, the administration shall submit an expenditure plan for review by the joint legislative budget committee.

§ 36-2930.05 Provider participation; grounds for exclusion; rules; definition

A. The administration shall exclude from participation in the system any individual or entity that meets any basis for mandatory exclusion described in 42 Code of Federal Regulations section 1001.101.

B. The administration, in its sole discretion, may exclude from participation in the system any individual or entity that has done any of the following:

1. Met any basis for permissive exclusion described in 42 Code of Federal Regulations section 1002.210.

2. Committed any act prohibited by section 36-2918 or 36-2957.

3. Been found liable for the neglect of a patient that results in death or injury.

4. Engaged in the unlawful disposal of medical waste in violation of federal, state or local law.

5. Submitted a claim for a procedure performed in association with an abortion in violation of federal or state law.

6. Failed to segregate taxpayer dollars from abortions, including the use of taxpayer dollars for any overhead expenses attributable to abortions.

7. Failed to comply with federal or state law requiring mandatory reporting of sexual abuse, sexual assault, child or sex trafficking or statutory rape.

C. The delineation of grounds for exclusion pursuant to subsections A and B of this section does not exclude any other basis for exclusion pursuant to state law or any rule adopted by the administration.

D. The director shall adopt rules that prescribe procedures for determining the length of exclusion, appealing the exclusion determination and requesting reinstatement following an exclusion.

E. For the purposes of this section, "exclude" means that items and services furnished, ordered or prescribed by a specified individual or entity will not be reimbursed by the administration, a contractor or any agent of the administration or a contractor. Exclude includes the termination of a provider agreement or the administration's refusal to enter into a provider agreement.

§ 36-2930.06 Substance use disorder services fund; AHCCCS administration; use of monies

A. The substance use disorder services fund is established consisting of monies appropriated to the fund, any gifts or donations to the fund and interest earned on those monies. The director shall administer the fund.

B. Monies in the fund:

1. Do not revert to the state general fund.

2. Are exempt from the provisions of section 35-190, relating to lapsing of appropriations.

3. Are continuously appropriated.

C. The administration shall enter into agreements with one or more contractors for substance use disorder services using monies from the substance use disorder services fund. In addition to terms and conditions the director deems appropriate, the agreement between the administration and each contractor shall require that:

1. The monies allocated in the agreement not be used for persons who are eligible under title XIX or title XXI of the social security act. Preference shall be given to persons with lower household incomes.

2. The contractor coordinate benefits provided under this section with any third parties that are legally responsible for the cost of services.

3. The contractor make payments to providers based on contracts with providers or, in the absence of a contract, at the capped fee schedule established by the administration.

4. The contractor submit expenditure reports monthly in a format determined by the director for reimbursement of services provided under the agreement. The agreement may also provide for additional reimbursement for administering the agreement in an amount not to exceed eight percent of the expenditures for services.

5. The administration not be held financially responsible to the contractor for any costs incurred by the contractor in excess of the monies allocated in the agreement.

D. The system shall act as payor of last resort for persons who are eligible pursuant to this section. On receipt of services under this section, a person is deemed to have assigned to the system all rights to any type of medical benefit to which the person is entitled.

E. This section does not:

1. Establish an entitlement for any individual to receive any particular service.

2. Establish a duty on the part of the administration to provide services or spend monies in excess of the monies in the fund.

Article 2 Arizona Long-Term Care System

§ 36-2931 Definitions

In this article, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Capitation rate" means a mode of payment which the program contractor receives for the delivery of services to members pursuant to this article and which is based on a fixed rate per person notwithstanding the amount of services provided to a member.

3. "Department" means the department of economic security.

4. "Director" means the director of the Arizona health care cost containment system administration.

5. "Eligible person" means a person who:

(a) Is a resident of this state and a United States citizen or a person who meets the requirements for qualified alien status as determined pursuant to section 36-2903.03, who entered the United States on or before August 21, 1996 or who entered the United States on or after August 22, 1996 and who is a member of an exception group under Public Law 104-193, section 412.

(b) Meets the eligibility criteria pursuant to section 36-2934.

(c) Needs institutional services as determined pursuant to section 36-2936.

(d) Is defined as eligible pursuant to section 1902(a)(10)(A)(ii)(XV) and (XVI) of title XIX of the social security act and who meets the income requirements of section 36-2950.

6. "Home and community based services" means services described in section 36-2939, subsection B, paragraph 2 and subsection C.

7. "Institutional services" means services described in section 36-2939, subsection A, paragraph 1 and subsection B, paragraph 1.

8. "Member" means an eligible person who is enrolled in the system.

9. "Noncontracting provider" means a person who provides services as prescribed by section 36-2939 and who does not have a subcontract with a program contractor.

10. "Program contractor" means the department or any other entity that contracts with the administration pursuant to section 36-2940 or 36-2944 to provide services to members pursuant to this article.

11. "Provider" means a person who subcontracts with a program contractor for the delivery of services to members pursuant to this article.

12. "Special health care district" means a special health care district organized pursuant to title 48, chapter 31.

13. "State plan" means a written agreement between the centers for medicare and medicaid services and the Arizona health care cost containment system administration that describes eligibility, covered services and the requirements for participation in the medicaid program except those requirements that are waived pursuant to the research and demonstration waiver pursuant to section 1115 of the social security act.

14. "System" means the Arizona long-term care system.

15. "Uniform accounting system" means a standard method of collecting, recording and safeguarding Arizona long-term care system data.

§ 36-2932 Arizona long-term care system; powers and duties of the director; expenditure limitation

A. The Arizona long-term care system is established. The system includes the management and delivery of hospitalization, medical care, institutional services and home and community based services to members through the administration, the program contractors and providers pursuant to this article together with federal participation under title XIX of the social security act. The director in the performance of all duties shall consider the use of existing programs, rules and procedures in the counties and department where appropriate in meeting federal requirements.

B. The administration has full operational responsibility for the system, which shall include the following:

1. Contracting with and certification of program contractors in compliance with all applicable federal laws.

2. Approving the program contractors' comprehensive service delivery plans pursuant to section 36-2940.

3. Providing by rule for the ability of the director to review and approve or disapprove program contractors' requests for proposals for providers and provider subcontracts.

4. Providing technical assistance to the program contractors.

5. Developing a uniform accounting system to be implemented by program contractors and providers of institutional services and home and community based services.

6. Conducting quality control on eligibility determinations and preadmission screenings.

7. Establishing and managing a comprehensive system for assuring the quality of care delivered by the system as required by federal law.

8. Establishing an enrollment system.

9. Establishing a member case management tracking system.

10. Establishing and managing a method to prevent fraud by applicants, members, eligible persons, program contractors, providers and noncontracting providers as required by federal law.

11. Coordinating benefits as provided in section 36-2946.

12. Establishing standards for the coordination of services.

13. Establishing financial and performance audit requirements for program contractors, providers and noncontracting providers.

14. Prescribing remedies as required pursuant to 42 United States Code section 1396r. These remedies may include the appointment of temporary management by the director, acting in collaboration with the director of the department of health services, in order to continue operation of a nursing care institution providing services pursuant to this article.

15. Establishing a system to implement medical child support requirements, as required by federal law. The administration may enter into an intergovernmental agreement with the department of economic security to implement this paragraph.

16. Establishing requirements and guidelines for the review of trusts for the purposes of establishing eligibility for the system pursuant to section 36-2934.01 and posteligibility treatment of income pursuant to subsection L of this section.

17. Accepting the delegation of authority from the department of health services to enforce rules that prescribe minimum certification standards for adult foster care providers pursuant to section 36-410, subsection B. The administration may contract with another entity to perform the certification functions.

18. Assessing civil penalties for improper billing as prescribed in section 36-2903.01, subsection K.

C. For nursing care institutions and hospices that provide services pursuant to this article, the director shall contract periodically as deemed necessary and as required by federal law for a financial audit of the institutions and hospices that is certified by a certified public accountant in accordance with generally accepted auditing standards or conduct or contract for a financial audit or review of the institutions and hospices. The director shall notify the nursing care institution and hospice at least sixty days before beginning a periodic audit. The administration shall reimburse a nursing care institution or hospice for any additional expenses incurred for professional accounting services obtained in response to a specific request by the administration. On request, the director of the administration shall provide a copy of an audit performed pursuant to this subsection to the director of the department of health services or that person's designee.

D. Notwithstanding any other provision of this article, the administration may contract by an intergovernmental agreement with an Indian tribe, a tribal council or a tribal organization for the provision of long-term care services pursuant to section 36-2939, subsection A, paragraphs 1, 2, 3 and 4 and the home and community based services pursuant to section 36-2939, subsection B, paragraph 2 and subsection C, subject to the restrictions in section 36-2939, subsections D and E for eligible members.

E. The director shall require as a condition of a contract that all records relating to contract compliance are available for inspection by the administration subject to subsection F of this section and that these records are maintained for five years. The director shall also require that these records are available on request of the secretary of the United States department of health and human services or its successor agency.

F. Subject to applicable law relating to privilege and protection, the director shall adopt rules prescribing the types of information that are confidential and circumstances under which that information may be used or released, including requirements for physician-patient confidentiality. Notwithstanding any other law, these rules shall provide for the exchange of necessary information among the program contractors, the administration and the department for the purposes of eligibility determination under this article.

G. The director shall adopt rules to specify methods for the transition of members into, within and out of the system. The rules shall include provisions for the transfer of members, the transfer of medical records and the initiation and termination of services.

H. The director shall adopt rules that provide for withholding or forfeiting payments made to a program contractor if it fails to comply with a provision of its contract or with the director's rules.

I. The director shall:

1. Establish by rule the time frames and procedures for all grievances and requests for hearings consistent with section 36-2903.01, subsection B, paragraph 4.

2. Apply for and accept federal monies available under title XIX of the social security act in support of the system. In addition, the director may apply for and accept grants, contracts and private donations in support of the system.

3. Not less than thirty days before the administration implements a policy or a change to an existing policy relating to reimbursement, provide notice to interested parties. Parties interested in receiving notification of policy changes shall submit a written request for notification to the administration.

J. The director may apply for federal monies available for the support of programs to investigate and prosecute violations arising from the administration and operation of the system. Available state monies appropriated for the administration of the system may be used as matching monies to secure federal monies pursuant to this subsection.

K. The director shall adopt rules that establish requirements of state residency and qualified alien status as prescribed in section 36-2903.03. The administration shall enforce these requirements as part of the eligibility determination process. The rules shall also provide for the determination of the applicant's county of residence for the purpose of assignment of the appropriate program contractor.

L. The director shall adopt rules in accordance with the state plan regarding posteligibility treatment of income and resources that determine the portion of a member's income that shall be available for payment for services under this article. The rules shall provide that a portion of income may be retained for:

1. A personal needs allowance for members receiving institutional services of at least fifteen per cent of the maximum monthly supplemental security income payment for an individual or a personal needs allowance for members receiving home and community based services based on a reasonable assessment of need.

2. The maintenance needs of a spouse or family at home in accordance with federal law. The minimum resource allowance for the spouse or family at home is twelve thousand dollars adjusted annually by the same percentage as the percentage change in the consumer price index for all urban consumers (all items; United States city average) between September 1988 and the September before the calendar year involved.

3. Expenses incurred for noncovered medical or remedial care that are not subject to payment by a third party payor.

M. In addition to the rules otherwise specified in this article, the director may adopt necessary rules pursuant to title 41, chapter 6 to carry out this article. Rules adopted by the director pursuant to this subsection may consider the differences between rural and urban conditions on the delivery of services.

N. The director shall not adopt any rule or enter into or approve any contract or subcontract that does not conform to federal requirements or that may cause the system to lose any federal monies to which it is otherwise entitled.

O. The administration, program contractors and providers may establish and maintain review committees dealing with the delivery of care. Review committees and their staff are subject to the same requirements, protections, privileges and immunities prescribed pursuant to section 36-2917.

P. If the director determines that the financial viability of a nursing care institution or hospice is in question, the director may require a nursing care institution and a hospice providing services pursuant to this article to submit quarterly financial statements within thirty days after the end of its financial quarter unless the director grants an extension in writing before that date. Quarterly financial statements submitted to the department shall include the following:

1. A balance sheet detailing the institution's assets, liabilities and net worth.

2. A statement of income and expenses, including current personnel costs and full-time equivalent statistics.

Q. The director may require monthly financial statements if the director determines that the financial viability of a nursing care institution or hospice is in question. The director shall prescribe the requirements of these statements.

R. The total amount of state monies that may be spent in any fiscal year by the administration for long-term care shall not exceed the amount appropriated or authorized by section 35-173 for that purpose. This article shall not be construed to impose a duty on an officer, agent or employee of this state to discharge a responsibility or to create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

§ 36-2933 Eligibility determination; application; enrollment

A. A person who is seeking services pursuant to this article shall submit an application for eligibility for the system to the administration which shall review the completed application to determine if the person meets the residency and if applicable, the alienage requirements adopted pursuant to section 36-2932, subsection K and the eligibility criteria prescribed in section 36-2934.

B. The administration shall conduct a preadmission screening pursuant to section 36-2936 to determine if the applicant is eligible for services.

C. A person who is a resident of this state and, if not a citizen of the United States, who meets the alienage requirements of federal law and who meets the eligibility criteria prescribed in section 36-2934 and who is determined eligible for services pursuant to section 36-2936 shall be enrolled in the system, unless such person is enrolled in the Arizona health care cost containment system pursuant to article 1 of this chapter and only needs convalescent care as defined by the director by rule.

D. On enrollment in the system, the administration shall conduct post-eligibility treatment of income and resources of the member as prescribed in section 36-2932, subsection L.

E. The director may enter into an interagency agreement with the department under which the department may:

1. Determine whether all persons with developmental disabilities as defined in section 36-551 who apply to the system meet the eligibility criteria prescribed in subsection A of this section.

2. Conduct preadmission screening pursuant to subsection B of this section on persons with developmental disabilities as defined in section 36-551 to determine if the applicant is eligible for services.

3. Conduct post-eligibility treatment of income and resources pursuant to subsection D of this section for a member who has a developmental disability as defined in section 36-551.

§ 36-2934 Eligibility criteria; qualifications for coverage; liquidation of assets

A. A person meets the eligibility criteria of this article and the section 1115 waiver if the person satisfies one of the following:

1. Is eligible pursuant to section 36-2901, paragraph 6, subdivision (a), item (i) or (ii) on the date of application for medical assistance under this article and meets the resource requirements prescribed by federal law.

2. Would be eligible for supplemental security income for the aged, blind or persons with disabilities or temporary assistance for needy families but is not receiving cash payment.

3. Would be eligible for supplemental security income for the aged, blind or persons with disabilities or under section 1931(b) of the social security act except for the person's institutional status.

4. Is in a medical institution for a period of not less than thirty consecutive days and except for the person's income the person would be eligible for supplemental security income for the aged, blind or disabled or temporary assistance for needy families and the person's gross income before deductions does not exceed three hundred per cent of the supplemental security income benefit rate established by section 1611(b)(1) of the social security act.

5. Would be eligible for medical assistance under the state plan if the person was institutionalized and a determination has been made that except for the provision of home and community based services the person would require the level of care provided in a hospital, skilled nursing facility or intermediate care facility.

B. In addition to meeting the requirements of subsection A of this section, a person may not have, within the time specified in federal law before filing an application for eligibility pursuant to section 36-2933, transferred or assigned for less than fair consideration assets as defined by federal law for the purpose of meeting the eligibility criteria pursuant to this section. If a transfer or assignment occurred, the administration may deny eligibility for a period in accordance with federal law. Transfers that are permitted under federal law shall not serve to disqualify a person from eligibility for services pursuant to this article. This subsection also applies to persons who are eligible pursuant to section 36-2901, paragraph 6, subdivision (a) and who receive medical assistance under article 1 of this chapter.

C. In addition to meeting the requirements of subsection A, paragraph 3 of this section, the director may require that a person's net income shall not exceed a state income standard established by the director, which is less than three hundred per cent of the supplemental security income benefit rate established by section 1611 of the social security act.

D. Notwithstanding any other provision of this section, a person shall not receive services under this article who is not eligible pursuant to title XIX of the social security act or the section 1115 waiver.

E. The administration shall periodically review the eligibility pursuant to this section of each member in accordance with federal law.

F. The administration shall determine a person's eligibility pursuant to this section within the time periods required or allowed by federal law.

G. An applicant shall provide the administration with a statement in accordance with federal law containing at least the following information:

1. The amount of personal and real property in which the applicant has an interest.

2. All income that the applicant received during the period immediately before application.

3. Any assets as defined by federal law assigned or transferred by the applicant within the time prescribed by federal law immediately before filing the application for eligibility pursuant to section 36-2933.

4. Any further information the director by rule requires to determine eligibility.

H. A designated representative, as defined pursuant to rules adopted by the director, or a public employee who prepares and signs, or assists in preparing, an application for benefits under this article on behalf of an applicant is not civilly liable for good faith acts and omissions.

§ 36-2934.01 Creation of trusts; eligibility for the system; share of cost

A. The administration has sole authority to qualify any trusts that are created pursuant to section 1917(d)(4)(A), (B) and (C) of the social security act and shall require that the trustee provide the following information and assurances when the trustee submits trust documents to the administration for approval:

1. Specific language that protects the state's beneficiary interest in the trust and that names the administration or the state medicaid agency as the primary beneficiary of the trust if the trust is terminated before or on the death of the member. The trust document shall state that the trustee shall pay on a monthly basis the share of cost amount established by the posteligibility treatment of income determination pursuant to subsection D of this section.

2. A provision that requires the direct deposit of all income assigned to the trust by the grantor, when legally permissible, into an account titled to the trust.

3. A detailed description of how the trust funds will be administered and disbursed. The trustee shall submit the description at the same time that the trustee submits the trust document to the administration for review. The administration shall review the planned disbursements or plan approved by the probate court and render a decision on the appropriateness of the disbursements or plan within the time frames established by federal law for processing applications for medical assistance. The administration may extend this limit to enable a trustee to amend a trust or to provide additional information requested by the administration. The trustee shall report to the administration any new trust funding or modifications to the planned disbursements from the trust no less than forty-five days before the intended action or change by the trustee. Under extenuating circumstances, the trustee may forgo the forty-five day reporting requirement and provide notice to the administration within thirty days from the date of disbursement. If the administration determines that the disbursement was not appropriate, or that any other provisions of the trust or this section have been violated, the administration shall consider the trust in accordance with subsection F of this section. The trustee may appeal this decision, but the provisions described in subsections I and J of this section shall be applied if the administration's action is affirmed. On request of the administration, the trustee shall provide verification of how the funds were administered.

4. A statement signed by the trustee acknowledging that an adverse action may be taken against the member's eligibility for the system if the trustee improperly violates the terms of the trust or the requirements of this section or if the trustee takes any action that limits the administration's beneficiary interest in the trust.

5. Specific language that protects the trust for the benefit of the trust beneficiary. The trust document shall state that disbursements shall not be made for other than those purposes allowed pursuant to this section.

B. For a trust that qualifies pursuant to subsection A of this section, the trustee shall not make any disbursements from the trust other than for the following:

1. Reasonable legal and professional expenses related to the trust including:

(a) Trust taxes.

(b) Trust investment fees.

(c) Reasonable professional expenses, including trustee, accounting and attorney fees related to the administration of the trust.

2. The posteligibility share of cost as computed pursuant to section 36-2932.

3. For trusts created pursuant to section 1917(d)(4)(B) of the social security act, a disbursement to the beneficiary equal to the personal needs allowance as computed pursuant to section 36-2932.

4. Health insurance premiums, medically necessary medical expenses and special medical needs of the beneficiary including:

(a) Expenses required to make the home accessible to the person.

(b) The purchase and maintenance of a specially equipped vehicle titled to the trust or to the beneficiary with a lien against the vehicle held by the trust in an amount equal to the current market value of the vehicle.

(c) Durable medical equipment.

(d) Over-the-counter supplies and medications, including diapers, lotions and cleansing wipes.

(e) Personal care services that are determined to be medically necessary by the beneficiary's physician and that are provided by a person who is registered by the administration to provide the services, including a financially responsible relative of the beneficiary. Trust disbursements for personal care services provided by a financially responsible relative shall not exceed the administration's fee-for-service rate for the personal care services. For the purposes of this subdivision, "financially responsible relative" means the spouse of the beneficiary or, if the beneficiary is a child under eighteen years of age, the parent of the beneficiary.

5. Maintenance payments for the spouse or family in accordance with 42 United States Code section 1396r-5(d)(1) and (2) and section 36-2932, subsection L.

6. Guardianship and conservatorship fees for the trust beneficiary based on the fair market value of the services provided.

7. The following expenses for the benefit of the beneficiary, excluding gifts to, payments for or loans to other persons, whether these are in cash or in kind:

(a) Entertainment, educational or vocational needs or items that are consistent with the person's ability to use these items.

(b) Other expenses that are individually approved by the director.

(c) Living expenses for food, clothing and shelter. If home property or other real property is purchased by the trust it must be titled to the trust.

(d) Income taxes owed on income from trust investments or on income of the beneficiary that is assigned to the trust when an actual tax liability is established.

(e) Provision for burial expenses that is limited to one of the following methods:

(i) Purchase of a prepaid burial plan funded by an irrevocable life insurance policy, irrevocable burial account, irrevocable trust account or irrevocable escrow account.

(ii) Purchase of life insurance to fund a burial plan for the beneficiary with a face value that does not exceed one thousand five hundred dollars after allowing deductions for burial plot items as defined by the administration.

(iii) Funding a burial fund account in an amount not to exceed one thousand five hundred dollars.

(f) Travel expenses for a companion if a companion is required to enable the beneficiary to travel for nonmedical reasons.

C. For trusts that qualify pursuant to subsection A of this section, the administration shall consider only the person's proportionate share of expenses as for the benefit of the trust beneficiary if these expenses also benefit others.

D. For trusts that are created pursuant to section 1917(d)(4)(A), (B) and (C) of the social security act, the administration shall require that the posteligibility treatment of income that is determined pursuant to section 36-2932 shall include the income assigned to the trust and any other countable income received by the member, excluding interest and dividends earned by the trust corpus and added to the principal. Each month the administration shall count for income eligibility purposes any disbursements made to the beneficiary and any payments made on behalf of the beneficiary for food or shelter. The administration shall count disbursements issued for the personal needs allowance pursuant to subsection B, paragraph 3 of this section as disbursements for food or shelter.

E. In order for a trust that is created pursuant to section 1917(d)(4)(B) of the social security act to be considered under this section, the sum of the individual's countable nontrust income and the income assigned to the trust, excluding interest and dividends earned by the trust corpus and added to the principal shall be equal to or less than the private pay rate established in the state plan.

F. For revocable or irrevocable trusts that are created pursuant to section 1917(d)(3)(A) or (B) of the social security act, the administration shall include the income that is received by the trust, excluding interest and dividends earned by the trust corpus and added to the principal or that is disbursed from the trust, whichever is greater, for both income eligibility calculations under section 36-2934 and posteligibility of income under section 36-2932. In determining eligibility for the system, the administration shall consider payments from the trust regardless of the purpose for which the payment is made.

G. Notwithstanding this section, a trust that is established before August 11, 1993 shall be evaluated in accordance with the provisions contained in the state plan.

H. If the administration determines that the trustee did not report changes in the amount of trust income or disbursements from the trust to the administration in the time frame and manner specified in subsection A of this section, the administration shall notify the member of the noncompliance and shall prospectively apply the adverse action that would have resulted if the change had been reported in a timely manner. If benefits for the system are continued by the administration pending a decision by the director after a hearing on a proposed adverse action that results from trust income or disbursements and the director upholds the administration, the administration shall apply the adverse action on a prospective basis.

I. The administration shall consider trust disbursements issued in violation of this section as a transfer in accordance with 42 United States Code section 1396p.

J. If the administration determines that the trustee is in violation of this section or the terms of a new or existing trust, the administration shall consider all trust assets held in the trust and income held in or produced by the trust, available to the beneficiary under 42 United States Code section 1396p(d)(3) until the trustee corrects the violation unless considering the assets and income available would create an undue hardship for the beneficiary.

§ 36-2934.02 Financial instruments; eligibility for the system

A. The administration has sole authority to determine the effect of annuities, promissory notes, loan agreements and related financial instruments on a person's eligibility pursuant to this article.

B. An irrevocable annuity purchased with an applicant's assets is treated as a transfer with uncompensated value pursuant to section 36-2934, subsection B unless it meets all of the following:

1. It is purchased from a life insurance company or another commercial company that sells annuities as part of the normal course of business.

2. It provides substantially equal monthly payments of principal and does not have a balloon or deferred payment of interest or principal.

3. It is an annuity currently issuing payments for the person or that person's spouse.

4. It will return the full principal and interest within the annuitant's life expectancy.

C. An irrevocable annuity that meets the requirements of subsection B of this section is a transfer with compensated value.

D. The fair market value of a promissory note, loan agreement or related financial instrument that is negotiable, assignable and enforceable is a countable resource.

E. A promissory note, loan agreement or related financial instrument that does not comply with subsection D of this section is a transfer with uncompensated value. For a promissory note, loan agreement or related instrument that does comply with subsection D of this section, the difference between the outstanding principal balance and the fair market value is a transfer with uncompensated value.

§ 36-2935 Estate recovery program; liens

A. The director shall adopt rules in accordance with state and federal law to allow the administration to file a claim against a member's estate to recover paid assistance. The administration is also entitled to a lien on a member's property to recover paid assistance the member receives.

B. A member's personal representative must notify the administration of the member's estate or property within three months after the member's death if the member was at least fifty-five years of age and the administration has not already filed a statement of claim in the estate proceedings.

C. As nearly as is possible, the administration shall recover charges pursuant to the procedures prescribed in sections 36-2915 and 36-2916. If both the administration and a county have valid liens for paid assistance provided to the same member, or if both the administration and a special health care district have valid claims for paid assistance provided to the same member, the value of the property shall be divided between the administration, the special health care district and the county pro rata according to the amounts of their respective liens.

D. The administration shall impose liens in a manner consistent with federal law.

E. This section also applies to persons who are eligible pursuant to section 36-2901, paragraph 6, subdivision (a) and who receive medical assistance under article 1 of this chapter.

§ 36-2936 Preadmission screening programs; functional tests; screening review

A. The director shall adopt rules establishing a uniform statewide preadmission screening program to determine if a person who has met the eligibility criteria prescribed in section 36-2934 is eligible for institutional services pursuant to this article. To be eligible for institutional services or home and community based services as defined in section 36-2931, a person shall have a nonpsychiatric medical condition or have a developmental disability as defined in section 36-551 that, by itself or in combination with other medical conditions, necessitates the level of care that is provided in a nursing facility or intermediate care facility. These rules shall establish a uniform preadmission screening instrument that assesses the functional, medical, nursing, social and developmental needs of the applicant.

B. A person is not eligible to receive home and community based services unless that person has been determined to need institutional services as determined by the preadmission screening instrument pursuant to subsection D of this section. The administration shall establish guidelines for the periodic reassessment of each member.

C. Preadmission screening conducted pursuant to subsection B of this section shall be conducted telephonically or virtually, unless the administration determines it is necessary to conduct the assessment in person or the applicant being screened or the applicant's representative requests an in-person assessment. The administration shall provide notice to applicants that the purpose of preadmission screening is to conduct a meaningful review of an applicant's medical needs, functional capacity, social and developmental needs and emotional and cognitive behaviors. The notice shall inform applicants that the applicant or the applicant's representative may request an in-person assessment and may request accommodations in the preadmission screening process under the Americans with disabilities act of 1990.

D. Preadmission screening conducted pursuant to subsection B of this section shall be conducted by a registered nurse who is licensed pursuant to title 32, chapter 15 or by a social worker. The nurse or social worker shall have a physician who is licensed pursuant to title 32, chapter 13 or 17 available for consultation and may use the applicant's attending physician's physical assessment form, if appropriate, in assessing needs for long-term care services under this article. A physician who receives a referral from the nurse or social worker may use the physician's medical judgment to determine the medical eligibility of an applicant for the system or the continued medical eligibility of a member or eligible person. In the medical referral, the physician shall use the established combined thresholds for functional ability and medical condition as a guide to determine the risk of institutionalization.

E. If a person who is eligible for services pursuant to this article, who is enrolled with a program contractor pursuant to this article and who is enrolled with a program contractor pursuant to section 36-2940 fails the preadmission screening for institutional services pursuant to subsection A of this section at the time of a reassessment, the administration may administer a second preadmission screening designed to measure the functioning level of the person based on rules adopted by the director. If the person meets the established thresholds of the functional preadmission screening, the person is eligible for home and community based services pursuant to section 36-2939, subsection A, paragraphs 2, 3 and 4, subsection B, paragraph 2 and subsection C. If a person who is determined eligible pursuant to this subsection is institutionalized pursuant to section 36-2939, including residence in an intermediate care facility, institution for mental disease, inpatient psychiatric facility or nursing facility, the person has a maximum of ninety days to vacate the institutional setting and relocate to a home and community based setting approved pursuant to section 36-2939.

F. If the person is determined not to need services pursuant to this section, the administration shall provide the person with information on other available community services.

G. The administration or its designee shall complete the preadmission screening under subsection A of this section within eight days, excluding Saturdays and holidays, and excluding the time period allowed to determine eligibility pursuant to section 36-2934.

H. If a provider who contracts with the administration pursuant to section 36-2904, subsection A is dissatisfied with any action or decision of the administration regarding the eligibility of a person for the system as prescribed in this article, that provider may file a grievance in accordance with the provider grievance procedure prescribed in section 36-2932, subsection I, paragraph 1. If the director determines pursuant to the grievance process that the person should have been determined eligible pursuant to section 36-2933, the director may reimburse the provider for the net cost of services provided pursuant to this article after the cumulative time periods allowed pursuant to section 36-2934 and this section.

I. In addition to those persons seeking services pursuant to this article, the preadmission screening conducted pursuant to this section shall be made available to all other persons applying for admission to a nursing care institution. The cost of preadmission screenings conducted by the administration pursuant to this subsection shall be borne by the state. The administration shall provide nursing care institutions and the general public on request with detailed information about the preadmission screening program and booklets that describe in clear and simple language the availability of services and benefits from the system. The booklet shall:

1. Explain the availability of preadmission screening that will assess the functional, medical, nursing and social needs of the patient and make recommendations on services that meet the patient's needs as identified by the preadmission screening assessment.

2. Describe the availability of public and private services appropriate to meet the patient's needs in institutions and alternatives to institutions.

3. Explain financial eligibility standards for the Arizona long-term care system and its effect on separate and community property.

J. In addition to the preadmission screening program established in this section, the administration shall implement the preadmission screening program as set forth in section 1919 of the social security act. For persons applying for admission to a title XIX certified nursing care institution, an initial level I preadmission screening shall be conducted by the administration on all nursing care institution applicants who are applying for eligibility pursuant to section 36-2933 and by the nursing care institution on all other nursing care institution applicants. The administration shall develop a uniform identification screening instrument, which shall be used by the nursing care institution and the administration in conducting the initial level I screens. If the identification screen indicates the applicant may be mentally ill, the applicant shall be referred to the administration, which shall conduct the level II preadmission screening review using a level II screening instrument developed by the administration. If the identification screen indicates the applicant may have an intellectual disability, the applicant shall be referred to the department, which shall conduct the level II preadmission screening review using a level II screening instrument developed by the department.

K. Within ten working days a nursing care institution shall notify the administration for a person who is mentally ill or the department of economic security for a person with developmental disabilities and the department of child safety if the person is a minor dependent of this state about any significant change that occurs in the physical or mental condition of a member who is residing in the nursing care institution. The administration or the department of economic security shall conduct a subsequent level II screening review of the member within the time frame required by the administration after the notification by the nursing care institution.

§ 36-2937 Effective date of program contractor's responsibility

A. If a person is eligible for services under article 1 of this chapter, the provider with whom the member is enrolled under article 1 of this chapter is responsible for providing services covered under article 1 of this chapter until the date of eligibility for the system specified in contract or until the eligible person or member is no longer eligible under article 1 of this chapter, whichever occurs first.

B. For a person who is not a member or eligible person under article 1 of this chapter on the date of eligibility for the system, the program contractor is responsible beginning on the date specified in contract for providing services pursuant to this article. If the person is retroactively eligible pursuant to federal law prior to the date that the program contractor assumes responsibility, the administration shall reimburse noncontracting providers from the Arizona long-term care fund for services which are covered under this article and which are provided to an eligible person during the period of retroactive eligibility. No reimbursement may be made for a service provided during the period of retroactive eligibility that does not qualify for monies under title XIX of the social security act. The director shall adopt rules prescribing reimbursement levels for services provided during the period of retroactive eligibility which are consistent with federal law. Covered inpatient hospital services provided during the period of retroactive eligibility shall not be reimbursed at a level higher than prescribed in section 36-2903.01.

§ 36-2938 Case management; definition

A. The director shall adopt rules establishing a uniform statewide case management program to ensure the most appropriate placement and cost effective delivery of services to members by the program contractors pursuant to this article. The case management program shall include the development by the program contractor of a long-term care service plan for each member. This plan shall include a cost benefit analysis for institutional or home and community based services. In developing this plan, the program contractor may use the information obtained from the preadmission screening conducted pursuant to section 36-2936 to determine the types of services a member should receive.

B. Each program contractor shall provide continual case management services to members in compliance with the uniform statewide case management program established pursuant to subsection A of this section.

C. Except for retroactive coverage, a program contractor shall only provide payment or reimbursement for services provided pursuant to this article under referral from its case management unit.

D. For the purposes of this section, "case management" means a service that will direct members to the most appropriate amount, duration and type of services and continually monitor and reassess a member's need for services provided pursuant to this article.

§ 36-2939 Long-term care system services; definitions

A. The following services shall be provided by the program contractors to members who are determined to need institutional services pursuant to this article:

1. Nursing facility services other than services in an institution for tuberculosis or mental disease.

2. Notwithstanding any other law, behavioral health services if these services are not duplicative of long-term care services provided as of January 30, 1993 under this subsection and are authorized by the program contractor through the long-term care case management system. If the administration is the program contractor, the administration may authorize these services.

3. Hospice services. For the purposes of this paragraph, "hospice" means a program of palliative and supportive care for terminally ill members and their families or caregivers.

4. Case management services as provided in section 36-2938.

5. Health and medical services as provided in section 36-2907.

6. Dental services as follows:

(a) Except as provided in subdivision (b) of this paragraph, in an annual amount of not more than $1,000 per member.

(b) Subject to approval by the centers for medicare and medicaid services, for persons treated at an Indian health service or tribal facility, adult dental services that are eligible for a federal medical assistance percentage of one hundred percent and that are in excess of the limit prescribed in subdivision (a) of this paragraph.

7. Pursuant to the terms and conditions that are approved by the centers for medicare and medicaid services and subject to available funding, traditional healing services if both of the following apply:

(a) The member qualifies for services through the Indian health service or a tribal facility pursuant to the conditions of participation outlined in 42 Code of Federal Regulations section 136.12.

(b) The traditional healing service is delivered by or through the Indian health service or a tribal facility.

B. In addition to the services prescribed in subsection A of this section, the department, as a program contractor, shall provide the following services if appropriate to members who have a developmental disability as defined in section 36-551 and who are determined to need institutional services pursuant to this article:

1. Intermediate care facility services for a member who has a developmental disability as defined in section 36-551. For purposes of this article, a facility shall meet all federally approved standards and may only include the Arizona training program facilities, a state owned and operated service center, state owned or operated community residential settings and private facilities that contract with the department.

2. Home and community based services that may be provided in a member's home, at an alternative residential setting as prescribed in section 36-591 or at other behavioral health alternative residential facilities licensed by the department of health services and approved by the director of the Arizona health care cost containment system administration and that may include:

(a) Home health, which means the provision of nursing services, licensed health aide services, home health aide services or medical supplies, equipment and appliances, that are provided on a part-time or intermittent basis by a licensed home health agency within a member's residence based on a physician's or allowed practitioner's orders and in accordance with federal law. Physical therapy, occupational therapy, or speech and audiology services provided by a home health agency may be provided in accordance with federal law. Home health agencies shall comply with federal bonding requirements in a manner prescribed by the administration.

(b) Licensed health aide services, which means a home health agency service provided pursuant to subsection G of this section that is ordered by a physician or an allowed practitioner on the member's plan of care and provided by a licensed health aide who is licensed pursuant to title 32, chapter 15.

(c) Home health aide, which means a service that provides intermittent health maintenance, continued treatment or monitoring of a health condition and supportive care for activities of daily living provided within a member's residence.

(d) Homemaker, which means a service that provides assistance in the performance of activities related to household maintenance within a member's residence.

(e) Personal care, which means a service that provides assistance to meet essential physical needs within a member's residence.

(f) Day care for persons with developmental disabilities, which means a service that provides planned care supervision and activities, personal care, activities of daily living skills training and habilitation services in a group setting during a portion of a continuous twenty-four-hour period.

(g) Habilitation, which means the provision of physical therapy, occupational therapy, speech or audiology services or training in independent living, special developmental skills, sensory-motor development, behavior intervention, and orientation and mobility in accordance with federal law.

(h) Respite care, which means a service that provides short-term care and supervision available on a twenty-four-hour basis.

(i) Transportation, which means a service that provides or assists in obtaining transportation for the member.

(j) Other services or licensed or certified settings approved by the director.

C. In addition to services prescribed in subsection A of this section, home and community based services may be provided in a member's home, in an adult foster care home as prescribed in section 36-401, in an assisted living home or assisted living center as defined in section 36-401 or in a level one or level two behavioral health alternative residential facility approved by the director by program contractors to all members who do not have a developmental disability as defined in section 36-551 and are determined to need institutional services pursuant to this article. Members residing in an assisted living center must be provided the choice of single occupancy. The director may also approve other licensed residential facilities as appropriate on a case-by-case basis for traumatic brain injured members. Home and community based services may include the following:

1. Home health, which means the provision of nursing services, home health aide services or medical supplies, equipment and appliances, that are provided on a part-time or intermittent basis by a licensed home health agency within a member's residence based on a physician's or allowed practitioner's orders and in accordance with federal law. Physical therapy, occupational therapy, or speech and audiology services provided by a home health agency may be provided in accordance with federal law. Home health agencies shall comply with federal bonding requirements in a manner prescribed by the administration.

2. Licensed health aide services, which means a home health agency service provided pursuant to subsection G of this section that is ordered by a physician or an allowed practitioner on the member's plan of care and provided by a licensed health aide who is licensed pursuant to title 32, chapter 15.

3. Home health aide, which means a service that provides intermittent health maintenance, continued treatment or monitoring of a health condition and supportive care for activities of daily living provided within a member's residence.

4. Homemaker, which means a service that provides assistance in the performance of activities related to household maintenance within a member's residence.

5. Personal care, which means a service that provides assistance to meet essential physical needs within a member's residence.

6. Adult day health, which means a service that provides planned care supervision and activities, personal care, personal living skills training, meals and health monitoring in a group setting during a portion of a continuous twenty-four-hour period. Adult day health may also include preventive, therapeutic and restorative health related services that do not include behavioral health services.

7. Habilitation, which means the provision of physical therapy, occupational therapy, speech or audiology services or training in independent living, special developmental skills, sensory-motor development, behavior intervention, and orientation and mobility in accordance with federal law.

8. Respite care, which means a service that provides short-term care and supervision available on a twenty-four-hour basis.

9. Transportation, which means a service that provides or assists in obtaining transportation for the member.

10. Home delivered meals, which means a service that provides for a nutritious meal that contains at least one-third of the recommended dietary allowance for an individual and that is delivered to the member's residence.

11. Other services or licensed or certified settings approved by the director.

D. The amount of monies expended by program contractors on home and community based services pursuant to subsection C of this section shall be limited by the director in accordance with the federal monies made available to this state for home and community based services pursuant to subsection C of this section. The director shall establish methods for allocating monies for home and community based services to program contractors and shall monitor expenditures on home and community based services by program contractors.

E. Notwithstanding subsections A, B, C, F and G of this section, a service may not be provided that does not qualify for federal monies available under title XIX of the social security act or the section 1115 waiver.

F. In addition to services provided pursuant to subsections A, B and C of this section, the director may implement a demonstration project to provide home and community based services to special populations, including persons with disabilities who are eighteen years of age or younger, are medically fragile, reside at home and would be eligible for supplemental security income for the aged, blind or disabled or the state supplemental payment program, except for the amount of their parent's income or resources. In implementing this project, the director may provide for parental contributions for the care of their child.

G. Consistent with the services provided pursuant to subsections A, B, C and F of this section and subject to approval by the centers for medicare and medicaid services, the director shall implement a program under which licensed health aide services may be provided to members who are under twenty-one years of age, who are eligible pursuant to section 36-2934, including members with developmental disabilities as defined in chapter 5.1, article 1 of this title, and who require continuous skilled nursing or skilled nursing respite care services. The licensed health aide services may be provided only by a parent, guardian or family member who is a licensed health aide employed by a medicare-certified home health agency service provider. Not later than sixty days after the approval of the rules implementing section 32-1645, subsection C, the director shall request any necessary approvals from the centers for medicare and medicaid services to implement this subsection and to qualify for federal monies available under title XIX of the social security act or the section 1115 waiver. The reimbursement rate for services provided under this subsection shall reflect the special skills needed to meet the health care needs of these members and shall exceed the reimbursement rate for home health aide services.

H. Subject to section 36-562, the administration by rule shall prescribe a deductible schedule for programs provided to members who are eligible pursuant to subsection B of this section, except that the administration shall implement a deductible based on family income. In determining deductible amounts and whether a family is required to have deductibles, the department shall use adjusted gross income. Families whose adjusted gross income is at least four hundred percent and less than or equal to five hundred percent of the federal poverty guidelines shall have a deductible of two percent of adjusted gross income. Families whose adjusted gross income is more than five hundred percent of adjusted gross income shall have a deductible of four percent of adjusted gross income. Only families whose children are under eighteen years of age and who are members who are eligible pursuant to subsection B of this section may be required to have a deductible for services. For the purposes of this subsection, "deductible" means an amount a family, whose children are under eighteen years of age and who are members who are eligible pursuant to subsection B of this section, pays for services, other than departmental case management and acute care services, before the department will pay for services other than departmental case management and acute care services.

I. For the purposes of this section:

1. "Allowed practitioner" means a nurse practitioner who is certified pursuant to title 32, chapter 15, a clinical nurse specialist who is certified pursuant to title 32, chapter 15 or a physician assistant who is certified pursuant to title 32, chapter 25.

2. "Tribal facility" has the same meaning prescribed in section 36-2981.

§ 36-2940 Program contractors; annual plan

A. The administration shall contract with the program contractors pursuant to this section or section 36-2944 using a contract as prescribed by the director. The department shall be a program contractor and provide services pursuant to this article either directly or through subcontracts with providers or through noncontracting providers to members who are defined as persons with developmental disabilities pursuant to section 36-551 and who are enrolled with the program contractor by the system.

B. Each program contractor pursuant to this section shall annually submit to the director a comprehensive plan for the delivery of services to members. The plan shall include necessary information as determined by the director.

§ 36-2941 Establishment of capitation rates

A. The administration shall establish capitation rates based on an actuarial study for the department. The capitation rate shall be based on the estimated cost of providing services pursuant to this article to members who have been determined eligible pursuant to section 36-2933.

B. At least thirty days before finalizing the capitation rates, the administration shall send written notice of the proposed capitation rates to the department.

C. Capitation rate adjustments shall be limited to utilization of existing services and inflation unless policy changes, including creation or expansion of programs, have been approved by the legislature or are specifically required by federal law or court mandate.

§ 36-2942 Payments to the department

For program contractors pursuant to section 36-2940:

1. The administration shall make at least monthly capitation payments to the department consisting of a portion of the capitation rate provided by the federal government. Prior to making the capitation payment, the administration may retain a specific percentage of the federal portion of the capitation rate for third party payments collected pursuant to this section.

2. The administration shall make at least monthly payments to the department with that portion of federal monies available for administrative costs.

3. Any portion of the capitation rate pursuant to paragraph 1 of this subsection or administrative costs pursuant to paragraph 2 of this section not paid for by federal monies shall be paid by the department.

4. Payments made pursuant to paragraph 1 of this subsection shall begin after a member is enrolled in the system.

5. The department is responsible for any costs of providing services to members that exceed the capitation rate.

6. The director shall require contract terms necessary to ensure adequate performance by the department of the provisions of each contract executed pursuant to this section.

§ 36-2943 Provider subcontracts; hospital reimbursement

A. Subcontracts for services rendered by providers pursuant to section 36-2940 shall be awarded through competitive statewide proposals in as nearly the same manner as that provided in section 41-2534. If there is not a sufficient number of qualified proposals, a subcontract may be negotiated with a provider and shall be awarded pursuant to section 41-2536. In order to deliver covered services to members enrolled or expected to be enrolled in the system within a county, the program contractor may negotiate and award without bid a provider subcontract if during the contract year there is an insufficient number of subcontracts awarded to providers. The term of the subcontract shall not extend beyond the next bid and subcontract award process as provided in this section, and the subcontract shall be at rates no greater than the weighted average rates for the appropriate level of care paid to similar providers in the same county. This section does not allow a program contractor to forego the competitive bid process pursuant to section 41-2534 unless there is an unanticipated increase in members enrolled in the system or a decrease in available beds brought about by the closure of a facility operated by a provider that is unable to be absorbed by current contracting providers located in the same general area. Before soliciting subcontracts without the competitive bid process, the program contractor shall receive approval from the director.

B. Hospitals that render care to members shall be paid by the program contractor as prescribed in section 36-2903.01, or such lower rate as may be negotiated by the program contractor.

C. The director may ensure through the subcontracts pursuant to subsection A of this section that at least ten per cent of the members are provided services pursuant to this article on a capitation basis.

D. A claim for an authorized service submitted by a licensed skilled nursing facility, an assisted living Arizona long-term care system provider or a home and community based Arizona long-term care system provider that renders care to members pursuant to this article shall be adjudicated within thirty calendar days after receipt by the program contractor. Any clean claim for an authorized service provided to a member that is not paid within thirty calendar days after the claim is received accrues interest at the rate of one per cent per month from the date the claim is submitted. The interest is prorated on a daily basis and must be paid by the program contractor at the time the clean claim is paid.

§ 36-2944 Qualified plan health service contracts; proposals; administration; contract terms

A. For each county that has a population of five hundred thousand persons or less and that was not approved as a program contractor before January 1, 1994 or that officially states that it wishes to end its status as a program contractor, the director at least every five years shall prepare and issue a request for proposal and a proposed contract format to qualified group disability insurers, hospital and medical service corporations, health care services organizations and any other qualified public or private persons to be a program contractor and provide services pursuant to this article on a capitation rate basis to members who are enrolled with the program contractors by the system, who are not persons with developmental disabilities as defined in section 36-551 and who are residents of the county at the time of application for the system.

B. The director may adopt rules regarding the request for proposal process that provide:

1. For the award of contracts by categories of members or services in order to secure the most financially advantageous proposals for the system.

2. That each qualified proposal shall be entered with separate categories for the distinct groups of members or services to be covered by the proposed contracts, as set forth in the request for proposal.

3. For the procurement of reinsurance for expenses incurred by any program contractor, any member or the system in providing services in excess of amounts specified by the director in any contract year.

4. For second round competitive proposals to request voluntary price reduction of proposals from only those proposals that have been tentatively selected for award, before the final award or rejection of proposals.

C. Contracts shall be awarded as otherwise provided by law, except that in no event may a contract be awarded to any program contractor that will cause the system to lose any federal monies to which it is otherwise entitled.

D. After contracts are awarded pursuant to this section, the director may negotiate with any successful proposal respondent for the expansion or contraction of services or service areas if there are unnecessary gaps or duplications in services or service areas.

E. Payments to program contractors pursuant to this section shall be made monthly or quarterly and may be subject to contract provisions requiring the retention of a specified percentage of the payment by the director, a reserve fund or other contract provisions by which adjustments to the payments are made based on utilization efficiency, including incentives for maintaining quality care and minimizing unnecessary inpatient services. Reserve funds withheld from contracts shall be distributed to program contractors who meet performance standards established by the director. Any reserve fund established pursuant to this subsection shall be established as a separate account within the Arizona long-term care system fund.

F. Payments made pursuant to this section shall begin after a member is enrolled in the system.

G. Each program contractor pursuant to this section shall submit an annual audited financial and programmatic report for the preceding fiscal year as required by the administration. The report shall include beginning and ending fund balances, revenues and expenditures, including specific identification of administrative costs. The report shall include the number of members served by the program contractor and the cost incurred for various types of services provided to members in a format prescribed by the director.

H. The director shall require contract terms necessary to ensure adequate performance by the program contractor of the provisions of each contract executed pursuant to this section. Contract provisions required by the director shall include the maintenance of deposits, performance bonds, financial reserves or other financial security.

§ 36-2944.01 Removal of medicaid special exemption for payments to program contractors; civil penalty

A. Notwithstanding any other law, beginning on October 1, 2003, each program contractor shall pay to the director of the department of insurance and financial institutions a tax equal to two percent of the total capitation, including reinsurance, and any other reimbursement paid to the program contractor by the administration for persons eligible pursuant to section 36-2931, paragraph 5. The tax shall be paid in four payments pursuant to subsection C of this section and deposited in the state general fund pursuant to sections 35-146 and 35-147.

B. The program contractor shall not deduct any disallowance or penalty imposed by the administration pursuant to this chapter from the financial information submitted to the director of the department of insurance and financial institutions.

C. Each program contractor shall file the estimated tax and documentation with the director of the department of insurance and financial institutions on a form prescribed by the director of the department of insurance and financial institutions. A program contractor shall make estimated tax payments to the director of the department of insurance and financial institutions for deposit in the state general fund pursuant to sections 35-146 and 35-147. The tax payments are due on or before September 15, December 15, March 15 and June 15 of each year. The amount of the payments shall be an estimate of the tax due for the quarter that ends in the month that payment is due.

D. On or before April 1, 2004 and annually on or before April 1 thereafter, the director of the department of insurance and financial institutions shall use data provided by the administration to reconcile the amount paid by each program contractor pursuant to this section with the actual amount of title XIX reimbursement made by the administration to the program contractor in the preceding calendar year. If there is a discrepancy in the two amounts, the director of the department of insurance and financial institutions shall notify the program contractor of the difference, provide a notice of right of appeal and bill the program contractor for the unpaid amount of the premium tax or, if there is an overpayment, the director of the department of insurance and financial institutions shall either refund the amount of the overpayment to the contractor or issue a credit for the amount of the overpayment that the program contractor can apply against future tax obligations prescribed by this section.

E. A contractor that fails to file an estimated payment or pay an unpaid premium tax as prescribed by this section is subject to a civil penalty equal to the greater of $25 or five percent of the amount due and is subject to interest on the amount due at the rate of one percent per month from the date the amount was due.

F. From and after December 31, 2017, the director of the department of insurance and financial institutions may require that reports and payments under this section be submitted electronically. If the director requires electronic submission, the director shall include on the department of insurance and financial institution's official website a list of one or more acceptable methods by which a contractor must submit reports and payments.

§ 36-2945 Provision of services without contract; requirements

A. If there is an insufficient number of qualified bids in a county pursuant to section 36-2944, or for those members not enrolled with program contractors, the director on the approval of the legal advisor of the administration may:

1. Execute discount advance payment contracts for institutional and hospital services.

2. Execute capped fee-for-service contracts for other services. Any capped fee-for-service contract shall provide for reimbursement at a level which does not exceed a capped fee-for-service schedule adopted by the director.

B. During any period in which services are needed and no contract exists, or for those members not enrolled with program contractors, the director on the approval of the legal advisor of the administration may do either of the following:

1. Pay noncontracting providers for services, other than hospital services, on a capped fee-for-service basis for members. However, the director shall not pay any amount for services which exceeds a maximum amount set forth in a capped fee-for-service schedule adopted by the director.

2. Pay a hospital subject to the reimbursement level limitation prescribed in section 36-2903.01.

C. If services are provided in the absence of a contract, the director shall continue to attempt to procure by the bid process as provided in section 36-2944 contracts for such services as specified in this subsection.

D. The director may adopt rules or require contractual provisions that prescribe requirements and time limits for submittal of and payment for claims submitted for services to the administration.

E. Notwithstanding section 35-190, the director may pay claims arising during the fiscal year for a period of six months after the close of the fiscal year.

§ 36-2946 Coordination of benefits; third party payments

A. The administration shall coordinate benefits provided under this article to a member so that any costs for services payable by the system are costs avoided or recovered from any available third party payor. The administration may require that the program contractors are responsible for the coordination of benefits provided pursuant to this article. The system shall act as a payor of last resort for members unless specifically prohibited by federal law. The director shall require members to assign to the system rights to all types of medical benefits to which the member is entitled, including first party medical benefits under automobile insurance policies. This state has a right to subrogation against any other person to enforce the assignment of medical benefits. The provisions of this subsection are controlling over the provisions of an insurance policy which provides benefits to a member if the policy is inconsistent with the provisions of this subsection. The administration shall monitor third party payments collected by providers and noncontracting providers. For purposes of this section, benefits from third party payors do not include monies available under the older Americans act of 1965, a social services block grant or an optional state supplemental payment program if federal monies are available for home and community based services pursuant to section 36-2939, subsection D.

B. Notwithstanding subsection A of this section, beginning on the first day of the first calendar quarter following the adjournment of the first regular session of the fortieth legislature and in accordance with section 4402 of the omnibus budget reconciliation act of 1990, if the administration determines that according to federal guidelines it is more cost effective for a person defined as eligible under section 36-2934 to be enrolled in a group health insurance plan in which the person is entitled to be enrolled, the administration shall pay all of that person's premiums, deductibles, coinsurance and other cost sharing obligations for services covered under section 36-2934. The person shall apply for enrollment in the group health insurance plan as a condition of eligibility under section 36-2934.

§ 36-2947 Program contractors; additional responsibilities

A. Program contractors shall establish and submit to the director for the director's approval utilization control systems comprised of prior authorization, concurrent review and retrospective review of services.

B. If a member is no longer eligible for the system, the program contractor and the department shall notify the administration in accordance with rules adopted pursuant to section 36-2932, subsection G. If that member may be eligible for services under article 1 of this chapter, the program contractor shall refer the person to the administration and arrange for the transfer of records to the appropriate provider as defined in section 36-2901 on notice by the administration.

§ 36-2948 Prohibited collection practices

On oral or written notice from the member or person that the member or person believes the claims to be covered by the system, a provider or noncontracting provider shall not do either of the following unless the provider or noncontracting provider has verified through the administration that the member or person has not yet been determined eligible or was not, at the time services were rendered, eligible or enrolled:

1. Charge, submit a claim to or demand or otherwise collect payment from a member or person who has been determined eligible unless specifically authorized by this article or rules adopted pursuant to this article.

2. Refer or report a member or person who has been determined eligible to a collection agency or credit reporting agency for the failure of the member or person who has been determined eligible to pay charges for system covered care or services unless specifically authorized by this article or rules adopted pursuant to this article.

§ 36-2949 Exemption from insurance law

To the extent that services are provided pursuant to this article, a provider or program contractor is not subject to the provisions of title 20.

§ 36-2950 Services to persons with disabilities; eligibility; premiums

A. Subject to the approval of the centers for medicare and medicaid services, beginning on January 1, 2002, the Arizona health care cost containment system administration shall provide services pursuant to this article to any person with a disability who is defined as eligible pursuant to section 36-2931, paragraph 5, subdivision (d), who meets the income requirements of subsection B of this section and who has too much income or resources to qualify for the system pursuant to section 36-2934.

B. A person meets the income requirements of this section if the person's countable income does not exceed two hundred fifty per cent of the federal poverty guidelines. The administration shall use the supplemental security income methodology. For purposes of this subsection, countable income does not include the person's unearned income, the person's spouse's or any other family member's earned or unearned income or a deduction for a minor child.

C. The administration shall adopt rules for the collection of premiums from persons who qualify for services pursuant to this section. The premium shall not exceed two per cent of the person’s countable income.

D. The administration shall develop and implement a process for eligibility determinations for persons who apply for eligibility and annual redeterminations for continued eligibility. The administration shall also develop and implement a process to determine medically improved disabilities. The administration may enter into an intergovernmental agreement with the department of economic security or may contract with participating health plans to conduct eligibility determinations or redeterminations. The administration may not use a resource test to determine or redetermine eligibility.

§ 36-2951 Self-directed attendant care services; rules; definition

A. Notwithstanding any law to the contrary, a person enrolled in the Arizona long-term care system may employ another person to provide self-directed attendant care services that would otherwise be considered within the scope of nursing care pursuant to title 32, chapter 15 if:

1. The person receiving these services is in stable condition, is not a resident in a medical facility and is competent to give directions to the attendant.

2. The person receiving these services has a functional disability and requires a service that could have been performed by that person except for the disability.

3. The attendant offers only services that are prescribed by the administration by rule.

B. The administration shall adopt rules prescribing the types of self-directed attendant care services that may be delivered pursuant to this section. Before it adopts these rules, the administration shall submit the proposed rules to the state board of nursing for its review and approval.

C. For the purposes of this section, "self-directed attendant care" means a service provided by an attendant caregiver who is hired to provide personal care, homemaker and general supervision services to a participant in the Arizona long-term care system.

§ 36-2952 County or special health care district long-term care system fund; uniform accounting

A. Each county or special health care district that is a program contractor pursuant to section 36-2940 shall establish and maintain a county or special health care district long-term care system fund as a separate fund to distinguish its revenues and its expenditures pursuant to this article from other programs funded or administered by the county or special health care district. The fund shall be used to pay administrative and program costs associated with the operation of the system or all or any part of the county's share of the total nonfederal part of the actual costs of the Arizona long-term care system. Amounts paid for all or any part of the counties' share of the total nonfederal part of the actual costs of the Arizona long-term care system pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, with the state treasurer.

B. The county or special health care district long-term care system fund shall be comprised of:

1. Monies paid by the administration pursuant to the contract.

2. Amounts paid by third party payors.

3. Gifts, donations and grants from any source.

4. Interest on monies deposited in the long-term care system fund.

C. A county or special health care district shall not transfer any monies deposited in the county or special health care district long-term care system fund except as permitted by this subsection. If there are any unexpended monies remaining in the fund at the end of any fiscal year, the county or special health care district shall carry over such monies to the next fiscal year to be used only to provide services pursuant to this article or to pay all or any part of the county's share of the total nonfederal part of the actual costs of the Arizona long-term care system.

D. Each county or special health care district program contractor shall submit a long-term care budget as prescribed by the administration.

E. The administration shall prescribe a uniform accounting system for the county and special health care district long-term care system funds. Technical assistance shall be provided by the administration to the county or to the special health care district in order to facilitate the implementation of the uniform accounting system.

F. Each county program contractor shall submit an annual audited financial and programmatic report for the preceding fiscal year as required by the administration. The report shall include beginning and ending fund balances, revenue and expenditures including specific identification of county administrative costs for the system. The report shall include the number of members served by the system and the cost incurred for various types of services provided to members in a format prescribed by the director.

G. Each county or special health care district program contractor shall submit additional utilization and financial reports as required by the director.

H. The director shall make at least an annual review of each county's or special health care district's records and accounts.

§ 36-2953 Department long-term care system fund; uniform accounting; reporting requirements

A. The department shall establish and maintain a department long-term care system fund, which is a separate fund to distinguish its revenues and its expenditures pursuant to this article from other programs funded or administered by the department. Subject to legislative appropriation, the fund shall be used to pay administrative and program costs associated with the operation of the system. The department long-term care system fund shall be divided as follows:

1. An account for eligibility determination pursuant to section 36-2933, if the administration enters into an interagency agreement with the department pursuant to section 36-2933, subsection E.

2. An account for the provision of long-term care services as prescribed in section 36-2939, subsections A and B.

B. The department long-term care system fund shall be composed of:

1. Monies paid by the administration pursuant to the contract.

2. Amounts paid by third-party payors.

3. Gifts, donations and grants from any source.

4. State appropriations for the department long-term care system pursuant to this article.

5. Interest on monies deposited in the long-term care system fund.

C. The department shall submit a prospective long-term care budget as prescribed by the administration.

D. The administration shall prescribe a uniform accounting system for the fund established pursuant to subsection A of this section. Technical assistance shall be provided by the administration to the department in order to facilitate the implementation of the uniform accounting system.

E. The department shall submit an annual audited financial and programmatic report for the preceding fiscal year as required by the administration. The report shall include beginning and ending fund balances, revenues and expenditures, including specific identification of administrative costs for the system. The report shall include the number of members served by the system and the cost incurred for various types of services provided to members in a format prescribed by the director.

F. The department shall submit additional utilization and financial reports as required by the director.

G. The director shall make at least an annual review of the department's records and accounts.

H. All monies from capitated payments in the department long-term care system fund that are unexpended and unencumbered at the end of the fiscal year revert to the state general fund on or before June 30 of the following fiscal year. The transfer amount may be adjusted for reported but unpaid claims and estimated incurred but unreported claims, subject to approval by the administration. The transfer amount may not be adjusted to pay nonmedicaid claims incurred by the division of developmental disabilities.

§ 36-2954 Erroneous eligibility determination; state liability

If the director determines through the grievance and appeal procedure pursuant to a grievance or appeal filed by an applicant that the administration made an error in eligibility determination pursuant to section 36-2933 and a person was incorrectly determined to be ineligible to receive institutional or home and community based services, the administration shall reimburse a provider or noncontracting provider for unreimbursed services provided to the applicant. The administration shall only make reimbursements for services pursuant to this article and from the date the person was incorrectly determined to be ineligible so long as the person remains eligible or until the person is enrolled in the system, whichever is applicable.

§ 36-2955 Inappropriate services; federal sanctions

A. Notwithstanding section 36-2940, the director shall adopt rules which provide that the administration shall withhold or forfeit capitation payments to the program contractor pursuant to section 36-2940 if the program contractor provides inappropriate services to a person determined eligible pursuant to section 36-2933 in an amount which equals the cost of the appropriate services.

B. The cost of any federal sanctions or penalties placed on the administration for errors made by the program contractor pursuant to section 36-2940 such as inappropriate provision of services shall be recouped from the program contractor.

§ 36-2956 Liens on damages for injuries; notification

A. The administration is entitled to a lien for the charges for hospital, medical or long-term care and treatment of an injured person for which the administration or a program contractor is responsible pursuant to this article, on any and all claims for damages accruing to the person to whom hospital or medical service is rendered, or to the legal representative of such person, on account of injuries giving rise to such claims and which necessitated such hospital or medical care and treatment. Recovery of charges pursuant to this section shall be in a manner as nearly as possible the same as the procedures prescribed in sections 36-2915 and 36-2916.

B. The member or the member's legal representative must provide written notice to the administration within twenty calendar days after the commencement of a civil action or other proceeding to establish the liability of any third party or to collect monies payable from accident insurance, liability insurance, workers' compensation, health insurance, medical payment insurance, underinsured coverage, uninsured coverage or any other first or third party source.

§ 36-2957 Prohibited acts; penalties

A. No person may present or cause to be presented to the administration or to a program contractor:

1. A claim for an item or service that the person knows or has reason to know was not provided as claimed.

2. A claim for an item or service that the person knows or has reason to know is false or fraudulent.

3. A claim for payment which the person knows or has reason to know may not be made by the system because:

(a) The person was not a member on the date for which the claim is being made.

(b) The item or service claimed is substantially in excess of the needs of the individual or of a quality that fails to meet professionally recognized standards of care.

4. A claim for a physician's service, or an item or service incidental to a physician's service, by a person who knows or has reason to know that the individual who furnished or supervised the furnishing of the service:

(a) Was not licensed as a physician.

(b) Obtained a license through a misrepresentation of material fact.

(c) Represented to the patient at the time the service was furnished that the physician was certified in a medical specialty by a medical specialty board if the person was not certified.

5. A request for payment which the person knows or has reason to know is in violation of an agreement between the person and the administration or the program contractor.

B. A person who violates a provision of subsection A is subject, in addition to any other penalties that may be prescribed by law, to a civil penalty of not to exceed two thousand dollars for each item or service claimed and is subject to an assessment of not to exceed twice the amount claimed for each item or service.

C. The director or his designee shall make the determination to assess civil penalties and is responsible for the collection of penalty and assessment amounts. The director shall adopt rules that prescribe procedures for the determination and collection of civil penalties and assessments. Civil penalties and assessments imposed under this section may be compromised by the director or his designee in accordance with criteria established in rules. The director or his designee may make a determination in the same proceeding to exclude the person from system participation.

D. A person adversely affected by a determination of the director or his designee under this section may appeal that decision in accordance with grievance provisions set forth in rule. The final decision is subject to judicial review in accordance with title 12, chapter 7, article 6.

E. Amounts recovered under this section shall be deposited in the Arizona long-term care system fund. The amount of such penalty or assessment may be deducted from any amount then or later owing by the administration to the person against whom the penalty or assessment has been imposed.

F. If a civil penalty or assessment imposed pursuant to subsection C is not paid, this state or the administration shall file an action to collect the civil penalty or assessment in the superior court in Maricopa county. Matters that were raised or could have been raised in a hearing before the director or in an appeal pursuant to title 12, chapter 7, article 6 may not be raised as a defense to the civil action. An action brought pursuant to this subsection shall be initiated within six years after the date the claim was presented.

§ 36-2958 Absence of federal financial participation; effect on system operation

If at any time federal monies as described in section 36-2932, subsection I, paragraph 2 are denied, not renewed or become unavailable for any reason the provisions of this article relating to the operation of the system are suspended and the director shall notify each program contractor of that fact. Neither the administration nor a program contractor shall provide services otherwise authorized by this article or be liable for the cost of services provided if federal monies are unavailable.

§ 36-2959 Reimbursement rates; capitation rates; annual review

A. The department shall contract with an independent consulting firm for an annual study of the adequacy and appropriateness of title XIX reimbursement rates to service providers for the persons with developmental disabilities program of both the Arizona long-term care system and the state only program. The consultant shall also include a recommendation for annual inflationary costs. Unless modified in response to federal or state law, the independent consulting firm shall include, in its recommendation, costs arising from amendments to existing contracts. The department may require, and the department's contracted providers shall provide, financial data to the department in the format prescribed by the department to assist in the study. A complete study of reimbursement rates shall be completed no less than once every five years.

B. Capitation rate adjustments shall be limited to utilization of existing services and inflation unless policy changes, including creation or expansion of programs, have been approved by the legislature or are specifically required by federal law or court mandate.

C. The administration shall contract with an independent consulting firm for an annual study of the adequacy and appropriateness of title XIX reimbursement rates to service providers for the elderly and physical disability program of the Arizona long-term care system. The administration may require, and the administration's contracted providers shall provide, financial data to the administration in the format prescribed by the administration to assist in the study. A complete study of reimbursement rates shall be completed no less than once every five years. In determining the adequacy of the rates in the five year study, the consulting firm shall examine in detail the costs associated with the delivery of services, including programmatic, administrative and indirect costs in providing services in rural and urban Arizona.

D. The department and the administration shall provide each of their reports to the joint legislative budget committee and the administration by October 1 of each year.

E. The department shall include the results of the study in its yearly capitation rate request to the administration.

F. If results of the study are not completely incorporated into the capitation rate, the administration shall provide a report to the joint legislative budget committee within thirty days of setting the final capitation rate, including reasons for differences between the rate and the study.

§ 36-2960 Persons with developmental disabilities; cost-effectiveness study rate; report

The department shall annually determine the cost-effectiveness study rate for persons who are receiving developmental disability services pursuant to chapter 5.1 of this title and provide that rate to the Arizona health care cost containment system administration. On or before June 15 of each year, the department shall report to the joint legislative budget committee the cost-effectiveness study rate for persons receiving developmental disability services that was determined for the subsequent fiscal year.

Article 2.1 Parents as Paid Caregivers

§ 36-2970 Definitions

In this article, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Department" means the department of economic security.

3. "Parent" means a parent of or the legally responsible individual for the minor child.

4. "Program" means the parents as paid caregivers program approved by the centers for medicare and medicaid services to this state's section 1115(a) demonstration waiver on February 16, 2024.

§ 36-2970.01 Verification and billing; direct care services; assessment

A. The department shall implement the following:

1. An electronic visit verification system that delineates that a parent or a nonparent provider is providing the direct care services.

2. Unique modifiers for delineating both:

(a) Whether a parent or nonparent provided the direct care services.

(b) Attendant care services and habilitation services.

B. A parent may not bill for attendant care services provided while the minor child is not present, including while the minor child is at school, or when the minor child is in inpatient care or receiving care in a clinical setting. A parent caregiver may not bill for attendant care services for housekeeping, laundry or meal preparation that would ordinarily be performed by a parent of a minor child who does not have a disability.

C. The administration and the department shall provide to the staff of the joint legislative budget committee at the end of each calendar quarter a report on the utilization of attendant care services and habilitation services by parent caregivers under the parents as paid caregivers program. The report shall also include all of the following:

1. The annual growth in the number of parents and members enrolled in the program.

2. The number of emergency department visits and inpatient hospitalizations in the calendar quarter.

3. The approved annual hours delineated by primary diagnosis.

4. How long a member who receives care under the parents as paid caregivers program has been enrolled in the Arizona long-term care system.

D. On or before October 1, 2025, the administration shall adopt and the department shall implement a strengthened standardized assessment tool to determine the need for extraordinary care for minor children under the program. The assessment tool shall separate household tasks that would ordinarily be performed by a parent of a minor child who does not have a disability.

§ 36-2970.02 Provision of care

A. Except as otherwise provided in the minor child's plan of care, a parent may provide attendant care services and habilitation services under the program only between 6:00 a.m. and 10:00 p.m.

B. A parent may be employed by only a single agency to provide attendant care services and habilitation services under the program.

Article 3 Qualified Medicare Beneficiary

§ 36-2971 Definitions

In this article, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Contractor" means a person or entity that has a prepaid capitated contract with the administration pursuant to section 36-2904 to provide health care to members under this article either directly or through subcontracts with providers.

3. "Department" means the department of economic security.

4. "Director" means the director of the Arizona health care cost containment system administration.

5. "Dual eligible" means a person who is determined eligible pursuant to this article and who is also determined eligible pursuant to section 36-2901, paragraph 6, subdivision (a) or section 36-2931, paragraph 5.

6. "Member" means an eligible person who enrolls in the system and who is defined as a qualified medicare beneficiary pursuant to section 1905(p) of title XIX of the social security act and whose income does not exceed one hundred per cent of the federal poverty guidelines.

7. "Noncontracting provider" means a person who provides services and who does not have a subcontract with a contractor or program contractor.

8. "Primary care physician" means a physician who is a family practitioner, general practitioner, pediatrician, general internist, or obstetrician or gynecologist.

9. "Primary care practitioner" means a nurse practitioner certified pursuant to title 32, chapter 15 or a physician assistant certified pursuant to title 32, chapter 25. This paragraph does not expand the scope of practice for nurse practitioners as defined pursuant to title 32, chapter 15, or for physician assistants as defined pursuant to title 32, chapter 25.

10. "Program contractor" means the department or any other entity that contracts with the administration pursuant to section 36-2940 or 36-2944.

11. "Qualified medicare beneficiary only" means an eligible person who is determined eligible pursuant to this article and who is not enrolled as a member under either article 1 or 2 of this chapter.

12. "Qualifying individual 1" means a person who would be defined as eligible pursuant to this article except for the fact that the person's income is at least one hundred twenty per cent of the federal poverty guidelines but is less than one hundred thirty-five per cent of the federal poverty guidelines.

13. "Qualifying individual 2" means a person who would be defined as eligible pursuant to this article except for the fact that the person's income is at least one hundred thirty-five per cent of the federal poverty guidelines but is less than one hundred seventy-five per cent of the federal poverty guidelines.

14. "Section 1115 waiver" means the research and demonstration waiver granted by the United States department of health and human services.

15. "Specified low income medicare beneficiary" means a person who would be defined as an eligible person pursuant to this article except for the fact that the person's income is above one hundred per cent of the federal poverty guidelines but is less than one hundred twenty per cent of the federal poverty guidelines.

16. "System" means the Arizona health care cost containment system established by article 1 of this chapter and the Arizona long-term care system established by article 2 of this chapter.

§ 36-2972 Rights, authority and responsibilities of the director and the administration

A. Subject to continued federal financial participation as provided in sections 36-2919 and 36-2958, the director shall plan for and take all steps necessary to implement the qualified medicare beneficiary program under title XIX of the social security act, as amended.

B. The administration and the director have full operational responsibility for this article. Except as provided in this article or required by federal law or the section 1115 waiver, the provisions of articles 1 and 2 of this chapter are fully applicable to this article and the director and administration have all the rights, powers, duties and responsibilities accorded to the system under articles 1 and 2 of this chapter. Services shall be delivered in accordance with federal law and the section 1115 waiver for articles 1 and 2 of this chapter.

C. The administration shall coordinate benefits provided under this article to members so that costs for services payable by the system are costs avoided or recovered from a third party payor. The director may require that program contractors, contractors and noncontracting providers are responsible for the coordination of benefits for services provided pursuant to this article. Benefit coordination requirements for noncontracting providers are limited to coordination of benefits with standard health insurance and disability or medicare supplemental health insurance policies and similar programs for health coverage. The director shall require members to assign to the system rights to all types of medical benefits to which the member is entitled.

D. Notwithstanding section 36-2911, the program contractors or contractors shall pay all premiums, deductibles and coinsurance amounts for the member to obtain coverage or secure services as required by the administration. For members not enrolled with a contractor or program contractor the administration may pay the premiums, deductibles and coinsurance amounts.

§ 36-2973 Qualified medicare beneficiary only; eligibility determination; application; enrollment

A. The administration shall determine the eligibility of all applicants who may be eligible as qualified medicare beneficiaries only. The administration shall ensure that the calculation of income eligibility requirements is in accordance with federal law and the section 1115 waiver. On determination of qualified medicare beneficiary only eligibility, the administration shall enroll the member in the system.

B. The administration may enroll the member who has been determined eligible as a qualified medicare beneficiary only in a fee-for-service arrangement. The director may enter into a contract with a medicare risk contractor that, in accordance with section 1876 of the social security act, has a contract with the health care financing administration and may pay premiums for enrollment of that member.

§ 36-2974 Dual eligibles; qualifications for coverage; enrollment

A. For purposes of this section all contractors and program contractors are required to provide services to members.

B. For a member who is dually eligible the director may implement a policy permitting a choice of contractors or program contractors to the extent the director deems feasible consistent with the section 1115 waiver and federal law. If the director does not implement a choice of contractor policy, the director may enroll the member, at the time eligibility is determined, with an available contractor or program contractor located in the geographic area of the member's residence.

C. The department shall assist the administration in the screening of all persons who are applying to become eligible pursuant to section 36-2901, paragraph 6, subdivision (a) and who are entitled to services under title XVIII but not title XVI of the social security act to determine if the person meets the eligibility criteria of this section. If a person is determined to be eligible pursuant to section 36-2901, paragraph 6, subdivision (a) and this article, the administration shall make the person dually eligible. On determination of dual eligibility the administration shall enroll the person pursuant to this article and notify the person of the dual eligibility.

D. The administration shall screen all persons who are entitled to services under title XVIII of the social security act and who are applying to become eligible pursuant to section 36-2901, paragraph 6, subdivision (a), as prescribed by title XVI of the social security act or section 36-2931, paragraph 5, to determine if the person meets the eligibility criteria of this section. If a person is determined to be eligible pursuant to section 36-2901, paragraph 6, subdivision (a) or section 36-2931, paragraph 5 and this article, the administration shall make the person dually eligible. On determination of dual eligibility by the administration, the administration shall enroll the person pursuant to this article and notify the person of the dual eligibility.

E. Calculation of income and resource eligibility requirements by the department and the administration pursuant to this section shall be in accordance with title XIX of the social security act, as amended.

F. Program contractors and contractors shall pay medicare deductibles, coinsurance and copayment amounts for services provided to dual eligibles pursuant to this article and as required by the administration for services that are provided by or under referral from a primary care physician or primary care practitioner.

§ 36-2975 Specified low income medicare beneficiary; eligibility

The administration shall determine the eligibility of all persons who are specified low income medicare beneficiaries in accordance with federal law. The administration shall pay the monthly premiums under part B of title XVIII of the social security act on behalf of each specified low income medicare beneficiary.

§ 36-2976 Qualifying individuals

A. The administration shall determine the eligibility of all persons who are determined to be qualifying individuals pursuant to section 36-2971, paragraphs 12 and 13.

B. The administration shall pay the medicare part B monthly premiums on behalf of each qualifying individual 1 and shall pay the medicare part B monthly amount that is attributable to home health coverage for each qualifying individual 2.

Article 4 Children's Health Insurance Program

§ 36-2981 Definitions

In this article, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Contractor" means a health plan that contracts with the administration to provide hospitalization and medical care to members according to this article or a qualifying plan.

3. "Director" means the director of the administration.

4. "Federal poverty level" means the federal poverty level guidelines published annually by the United States department of health and human services.

5. "Health plan" means an entity that contracts with the administration for services provided pursuant to article 1 of this chapter.

6. "Member" means a person who is eligible for and enrolled in the program, who is under nineteen years of age and whose gross household income meets the following requirements:

(a) Beginning on October 1, 1999 through September 30, 2023, has income at or below two hundred percent of the federal poverty level.

(b) Beginning on October 1, 2023 and for each fiscal year thereafter, subject to the approval of the centers for medicare and medicaid services, has income at or below two hundred twenty-five percent of the federal poverty level.

7. "Noncontracting provider" means an entity that provides hospital or medical care but does not have a contract or subcontract with the administration.

8. "Physician" means a person who is licensed pursuant to title 32, chapter 13 or 17.

9. "Prepaid capitated" means a method of payment by which a contractor delivers health care services for the duration of a contract to a specified number of members based on a fixed rate per member, per month without regard to the number of members who receive care or the amount of health care services provided to a member.

10. "Primary care physician" means a physician who is a family practitioner, general practitioner, pediatrician, general internist, obstetrician or gynecologist.

11. "Primary care practitioner" means a nurse practitioner who is certified pursuant to title 32, chapter 15 or a physician assistant who is licensed pursuant to title 32, chapter 25 and who is acting within the respective scope of practice of those chapters.

12. "Program" means the children's health insurance program.

13. "Qualifying plan" means a contractor that contracts with the state pursuant to section 38-651 to provide health and accident insurance for state employees and that provides services to members pursuant to section 36-2989, subsection A.

14. "Special health care district" means a special health care district organized pursuant to title 48, chapter 31.

15. "Tribal facility" means a facility that is operated by an Indian tribe or tribal organization and that is authorized to provide services pursuant to Public Law 93-638, as amended.

§ 36-2982 Children's health insurance program; administration; nonentitlement; enrollment; eligibility

A. The children's health insurance program is established for children who are eligible pursuant to section 36-2981, paragraph 6. The administration shall administer the program. All covered services shall be provided by health plans that have contracts with the administration pursuant to section 36-2906, by a qualifying plan or by either tribal facilities or the Indian health service for Native Americans who are eligible for the program and who elect to receive services through the Indian health service or a tribal facility.

B. This article does not create a legal entitlement for any applicant or member who is eligible for the program.

C. The director shall take all steps necessary to implement the administrative structure for the program and to begin delivering services to persons within sixty days after approval of the state plan by the United States department of health and human services.

D. The administration shall perform eligibility determinations for persons applying for eligibility and annual redeterminations for continued eligibility pursuant to this article. Subject to the approval of the centers for medicare and medicaid services and pursuant to 42 United States Code section 1396a(e)(12) and 42 Code of Federal Regulations sections 435.926 and 457.342, the administration shall allow a member who is determined eligible pursuant to this section to remain eligible for benefits under this article for a period of twelve months, unless the member exceeds the age of eligibility during that twelve-month period.

E. The administration shall adopt rules for the collection of copayments from members whose income does not exceed one hundred fifty percent of the federal poverty level and for the collection of copayments and premiums from members whose income exceeds one hundred fifty percent of the federal poverty level. The director shall adopt rules for disenrolling a member if the member does not pay the premium required pursuant to this section. The director shall adopt rules to prescribe the circumstances under which the administration shall grant a hardship exemption to the disenrollment requirements of this subsection for a member who is no longer able to pay the premium.

F. Before enrollment, a member, or if the member is a minor, that member's parent or legal guardian, shall select an available health plan in the member's geographic service area or a qualifying health plan offered in the county, and may select a primary care physician or primary care practitioner from among the available physicians and practitioners participating with the contractor in which the member is enrolled. The contractors shall only reimburse costs of services or related services provided by or under referral from a primary care physician or primary care practitioner participating in the contract in which the member is enrolled, except for emergency services that shall be reimbursed pursuant to section 36-2987. The director shall establish requirements as to the minimum time period that a member is assigned to specific contractors.

G. Eligibility for the program is creditable coverage as defined in section 20-1379.

H. Notwithstanding section 36-2983, the administration may purchase for a member employer-sponsored group health insurance with state and federal monies available pursuant to this article, subject to any restrictions imposed by the centers for medicare and medicaid services. This subsection does not apply to members who are eligible for health benefits coverage under a state health benefits plan based on a family member's employment with a public agency in this state.

§ 36-2983 Eligibility for the program

A. The administration shall establish a streamlined eligibility process for applicants to the program and shall issue a certificate of eligibility at the time eligibility for the program is determined. Eligibility shall be based on gross household income for a member as defined in section 36-2981. The administration shall not apply a resource test in the eligibility determination or redetermination process.

B. The administration shall use a simplified eligibility form that may be mailed to the administration. Once a completed application is received, including adequate verification of income, the administration shall expedite the eligibility determination and enrollment on a prospective basis.

C. The date of eligibility is the first day of the month following a determination of eligibility if the decision is made by the twenty-fifth day of the month. A person who is determined eligible for the program after the twenty-fifth day of the month is eligible for the program the first day of the second month following the determination of eligibility.

D. An applicant for the program who appears to be eligible pursuant to section 36-2901, paragraph 6, subdivision (a) shall have a social security number or shall apply for a social security number within thirty days after the applicant submits an application for the program.

E. In order to be eligible for the program, a person shall be a resident of this state and shall meet title XIX requirements for United States citizenship or qualified alien status in the manner prescribed in section 36-2903.03.

F. In determining the eligibility for all qualified aliens pursuant to this article, the income and resources of a person who executed an affidavit of support pursuant to section 213A of the immigration and nationality act on behalf of the qualified alien and the income and resources of the spouse, if any, of the sponsoring individual shall be counted at the time of application and for the redetermination of eligibility for the duration of the attribution period as specified in federal law.

G. Pursuant to federal law, a person is not eligible for the program if that person is:

1. Eligible for title XIX or other federally operated or financed health care insurance programs, except the Indian health service.

2. Covered by any group health plan or other health insurance coverage as defined in section 2791 of the public health service act. Group health plan or other health insurance coverage does not include coverage to persons who are defined as eligible pursuant to the premium sharing program.

3. A member of a family that is eligible for health benefits coverage under a state health benefit plan based on a family member's employment with a public agency in this state.

4. An inmate of a public institution or a patient in an institution for mental diseases. This paragraph does not apply to services furnished in a state operated mental hospital or to residential or other twenty-four hour therapeutically planned structured services.

H. A child who is covered under an employer's group health insurance plan or through family or individual health care coverage shall not be enrolled in the program. If the health insurance coverage is voluntarily discontinued for any reason, except for the loss of health insurance due to loss of employment or other involuntary reason, the child is not eligible for the program for a period of three months from the date that the health care coverage was discontinued. The administration may waive the three month period for any child who is seriously or chronically ill. For the purposes of the waiver, "chronically ill" means a medical condition that requires frequent and ongoing treatment and that if not properly treated will seriously affect the child's overall health. The administration shall establish rules to further define conditions that constitute a serious or chronic illness.

I. Pursuant to federal law, a private insurer, as defined by the secretary of the United States department of health and human services, shall not limit enrollment by contract or any other means based on the presumption that a child may be eligible for the program.

§ 36-2985 Notice of program suspension; spending limit

A. If the director determines that federal and state monies appropriated for the program are insufficient, the administration shall immediately notify the governor, the president of the senate and the speaker of the house of representatives and may stop processing all new applications.

B. The total amount of state monies that the administration may spend in any fiscal year for health care provided under this article shall not exceed the amount appropriated or authorized by section 35-173.

C. This article does not impose a duty on an officer, agent or employee of this state to discharge a responsibility or create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

§ 36-2986 Administration; powers and duties of director

A. The director has full operational authority to adopt rules or to use the appropriate rules adopted for article 1 of this chapter to implement this article, including any of the following:

1. Contract administration and oversight of contractors.

2. Development of a complete system of accounts and controls for the program, including provisions designed to ensure that covered health and medical services provided through the system are not used unnecessarily or unreasonably, including inpatient behavioral health services provided in a hospital.

3. Establishment of peer review and utilization review functions for all contractors.

4. Development and management of a contractor payment system.

5. Establishment and management of a comprehensive system for assuring quality of care.

6. Establishment and management of a system to prevent fraud by members, contractors and health care providers.

7. Development of an outreach program. The administration shall coordinate with public and private entities to provide outreach services for children under this article. Priority shall be given to those families who are moving off welfare. Outreach activities shall include strategies to inform communities, including tribal communities, about the program, ensure a wide distribution of applications and provide training for other entities to assist with the application process.

8. Coordination of benefits provided under this article for any member. The director may require that contractors and noncontracting providers are responsible for the coordination of benefits for services provided under this article. Requirements for coordination of benefits by noncontracting providers under this section are limited to coordination with standard health insurance and disability insurance policies and similar programs for health coverage. The director may require members to assign to the administration rights to all types of medical benefits to which the person is entitled, including first party medical benefits under automobile insurance policies. The state has a right of subrogation against any other person or firm to enforce the assignment of medical benefits. The provisions of this paragraph are controlling over the provisions of any insurance policy that provides benefits to a member if the policy is inconsistent with this paragraph.

9. Development and management of an eligibility, enrollment and redetermination system including a process for quality control.

10. Establishment and maintenance of an encounter claims system that ensures that ninety percent of the clean claims are paid within thirty days after receipt and ninety-nine percent of the remaining clean claims are paid within ninety days after receipt by the administration or contractor unless an alternative payment schedule is agreed to by the contractor and the provider. For the purposes of this paragraph, "clean claims" has the same meaning prescribed in section 36-2904, subsection G.

11. Establishment of standards for the coordination of medical care and member transfers.

12. Requiring contractors to submit encounter data in a form specified by the director.

13. Assessing civil penalties for improper billing as prescribed in section 36-2903.01, subsection K.

B. Notwithstanding any other law, if Congress amends title XXI of the social security act and the administration is required to make conforming changes to rules adopted pursuant to this article, the administration shall request a hearing with the joint health committee of reference for review of the proposed rule changes.

C. The director may subcontract distinct administrative functions to one or more persons who may be contractors within the system.

D. The director shall require as a condition of a contract with any contractor that all records relating to contract compliance are available for inspection by the administration and that these records be maintained by the contractor for five years. The director shall also require that these records are available by a contractor on request of the secretary of the United States department of health and human services.

E. Subject to existing law relating to privilege and protection, the director shall prescribe by rule the types of information that are confidential and circumstances under which this information may be used or released, including requirements for physician-patient confidentiality. Notwithstanding any other law, these rules shall be designed to provide for the exchange of necessary information for the purposes of eligibility determination under this article. Notwithstanding any other law, a member's medical record shall be released without the member's consent in situations of suspected cases of fraud or abuse relating to the system to an officer of this state's certified Arizona health care cost containment system fraud control unit who has submitted a written request for the medical record.

F. The director shall provide for the transition of members between contractors and noncontracting providers and the transfer of members who have been determined eligible from hospitals that do not have contracts to care for these persons.

G. To the extent that services are furnished pursuant to this article, a contractor is not subject to title 20 unless the contractor is a qualifying plan and has elected to provide services pursuant to this article.

H. As a condition of a contract, the director shall require contract terms that are necessary to ensure adequate performance by the contractor. Contract provisions required by the director include the maintenance of deposits, performance bonds, financial reserves or other financial security. The director may waive requirements for the posting of bonds or security for contractors who have posted other security, equal to or greater than that required by the administration, with a state agency for the performance of health service contracts if monies would be available from that security for the system on default by the contractor.

I. The director shall establish solvency requirements in contract that may include withholding or forfeiture of payments to be made to a contractor by the administration for the failure of the contractor to comply with a provision of the contract with the administration. The director may also require contract terms allowing the administration to operate a contractor directly under circumstances specified in the contract. The administration shall operate the contractor only as long as it is necessary to assure delivery of uninterrupted care to members enrolled with the contractor and to accomplish the orderly transition of members to other contractors or until the contractor reorganizes or otherwise corrects the contract performance failure. The administration shall not operate a contractor unless, before that action, the administration delivers notice to the contractor providing an opportunity for a hearing in accordance with procedures established by the director. Notwithstanding the provisions of a contract, if the administration finds that the public health, safety or welfare requires emergency action, it may operate as the contractor on notice to the contractor and pending an administrative hearing, which it shall promptly institute.

J. For the sole purpose of matters concerning and directly related to this article, the administration is exempt from section 41-192.

K. The director may withhold payments to a noncontracting provider if the noncontracting provider does not comply with this article or adopted rules that relate to the specific services rendered and billed to the administration.

L. The director shall:

1. Prescribe uniform forms to be used by all contractors and furnish uniform forms and procedures, including methods of identification of members. The rules shall include requirements that an applicant personally complete or assist in the completion of eligibility application forms, except in situations in which the person has a disability.

2. By rule, establish a grievance and appeal procedure that conforms with the process and the time frames specified in article 1 of this chapter. If the program is suspended pursuant to section 36-2985, an applicant or member is not entitled to contest the denial, suspension or termination of eligibility for the program.

3. Apply for and accept federal monies available under title XXI of the social security act. Available state monies appropriated to the administration for the operation of the program shall be used as matching monies to secure federal monies pursuant to this subsection.

M. The administration is entitled to all rights provided to the administration for liens and release of claims as specified in sections 36-2915 and 36-2916 and shall coordinate benefits pursuant to section 36-2903, subsection F and be a payor of last resort for persons who are eligible pursuant to this article.

N. The director shall follow the same procedures for review committees, immunity and confidentiality that are prescribed in article 1 of this chapter.

§ 36-2987 Reimbursement for the program

A. For inpatient hospital services, the administration shall reimburse the Indian health service or a tribal facility based on the reimbursement rates for the Indian health service as published annually in the federal register. For outpatient services, the administration shall reimburse the Indian health service or a tribal facility based on the capped fee-for-service schedule established by the director. If Congress authorizes one hundred per cent pass-through of title XXI monies for services provided in an Indian health service facility or a tribal facility, the administration shall reimburse the Indian health service or the tribal facility with this enhanced federal funding based on the reimbursement rates for the Indian health service or the tribal facility as published annually in the federal register.

B. Contractors shall reimburse inpatient and outpatient services based on the reimbursement methodology established in section 36-2904 or the hospital reimbursement pilot program established by this state.

C. For services rendered on and after October 1, 1998, the administration and the contractors shall pay a hospital's rate established according to this section subject to the following:

1. If the hospital's bill is paid within thirty days after the date the bill was received, the administration shall pay ninety-nine per cent of the rate.

2. If the hospital's bill is paid after thirty days but within sixty days after the date the bill was received, the administration shall pay one hundred per cent of the rate.

3. If the hospital's bill is paid any time after sixty days after the date the bill was received, the administration shall pay one hundred per cent of the rate plus a fee of one per cent a month for each month or portion of a month following the sixtieth day of receipt of the bill until the date of payment.

D. The administration and the contractors shall pay claims pursuant to the methodology, definitions and time frames specified for clean claims in section 36-2904, subsection G.

E. The director shall specify enrollment procedures, including notice to contractors of enrollment. The administration shall specify in contract when a person who has been determined eligible will be enrolled with a contractor and the date on which the contractor will be financially responsible for health and medical services to the person.

F. The director shall monitor any third party payment collections collected by contractors and noncontracting providers according to the same procedures specified for title XIX pursuant to section 36-2903.01, subsection J.

G. On oral or written notice from the member, or the member's parent or legal guardian, that the member, parent or legal guardian believes a claim should be covered by the program, a contractor or noncontracting provider shall not do either of the following unless the contractor or noncontracting provider has verified through the administration that the person is ineligible for the program, has not yet been determined eligible or, at the time services were rendered, was not eligible or enrolled in the program:

1. Charge, submit a claim to or demand or otherwise collect payment from a member or person who has been determined eligible.

2. Refer or report a member or person who has been determined eligible to a collection agency or credit reporting agency for the failure of the member or person who has been determined eligible to pay charges for covered services unless specifically authorized by this article or rules adopted pursuant to this article.

H. The administration may conduct postpayment review of all payments made by the administration and may recoup any monies erroneously paid. The director may adopt rules that specify procedures for conducting postpayment review. Contractors may conduct a postpayment review of all claims paid to providers and may recoup monies that are erroneously paid.

I. The director or the director's designee may employ and supervise personnel necessary to assist the director in performing the functions of the program.

§ 36-2988 Delivery of services; health plans; requirements

A. To the extent possible, the administration shall use contractors that have a contract with the administration pursuant to article 1 of this chapter or qualifying plans to provide services to members who qualify for the program.

B. The administration has full authority to amend existing contracts awarded pursuant to article 1 of this chapter.

C. As determined by the director, reinsurance may be provided against expenses in excess of a specified amount on behalf of any member for covered emergency services, inpatient services or outpatient services in the same manner as reinsurance provided under article 1 of this chapter. Subject to the approval of the director, reinsurance may be obtained against expenses in excess of a specified amount on behalf of any member.

D. Notwithstanding any other law, the administration may procure, provide or coordinate covered services by interagency agreement with authorized agencies of this state for distinct groups of members, including persons eligible for children's rehabilitative services through the department of economic security and members eligible for comprehensive medical and dental benefits through the department of child safety.

E. After contracts are awarded pursuant to this section, the director may negotiate with any successful bidder for the expansion or contraction of services or service areas.

F. Payments to contractors shall be made monthly and may be subject to contract provisions requiring the retention of a specified percentage of the payment by the director, a reserve fund or any other contract provisions by which adjustments to the payments are made based on utilization efficiency, including incentives for maintaining quality care and minimizing unnecessary inpatient services. Reserve monies withheld from contractors shall be distributed to providers who meet performance standards established by the director. Any reserve fund established pursuant to this subsection shall be established as a separate account within the Arizona health care cost containment system.

G. The director may negotiate at any time with a hospital on behalf of a contractor for inpatient hospital services and outpatient hospital services provided pursuant to the requirements specified in section 36-2904.

H. A contractor may require that subcontracting providers or noncontracting providers be paid for covered services, other than hospital services, according to the capped fee-for-service schedule adopted by the administration or at lower rates as may be negotiated by the contractor.

I. A school district may perform outreach and information activities that relate to this article, with permission of the school principal and school district. The administration and contractors may collaborate with entities such as community based organizations, faith based organizations, schools and school districts for outreach and information activities related to this article. Outreach and information activities shall not include delivery of services, screening activities, eligibility determination or enrollment related to this article. Outreach and information activities include promotion of health care coverage, participation in school events and distribution of applications and materials to pupils and their families. Outreach and information activities performed by the administration, contractors or a school district shall not reduce or interfere with classroom instruction time.

J. The administration is exempt from the procurement code pursuant to section 41-2501.

§ 36-2989 Covered health and medical services; modifications; related delivery of service requirements

A. Except as provided in this section, health and medical services prescribed in section 36-2907 are covered services and include:

1. Inpatient hospital services that are ordinarily furnished by a hospital for the care and treatment of inpatients, that are medically necessary and that are provided under the direction of a physician or a primary care practitioner. For the purposes of this paragraph, inpatient hospital services exclude services in an institution for tuberculosis or mental diseases unless authorized by federal law.

2. Outpatient health services that are medically necessary and ordinarily provided in hospitals, clinics, offices and other health care facilities by licensed health care providers. For the purposes of this paragraph, "outpatient health services" includes services provided by or under the direction of a physician or a primary care practitioner.

3. Other laboratory and X-ray services ordered by a physician or a primary care practitioner.

4. Medications that are medically necessary and ordered on prescription by a physician, a primary care practitioner or a dentist licensed pursuant to title 32, chapter 11.

5. Medical supplies, equipment and prosthetic devices.

6. Treatment of medical conditions of the eye, including eye examinations for prescriptive lenses and the provision of prescriptive lenses for members.

7. Medically necessary dental services.

8. Well child services, immunizations and prevention services.

9. Family planning services that do not include abortion or abortion counseling. If a contractor elects not to provide family planning services, this election does not disqualify the contractor from delivering all other covered health and medical services under this article. In that event, the administration may contract directly with another contractor, including an outpatient surgical center or a noncontracting provider, to deliver family planning services to a member who is enrolled with a contractor who elects not to provide family planning services.

10. Podiatry services that are performed by a podiatrist licensed pursuant to title 32, chapter 7 and that are ordered by a primary care physician or primary care practitioner.

11. Medically necessary pancreas, heart, liver, kidney, cornea, lung and heart-lung transplants and autologous and allogeneic bone marrow transplants and immunosuppressant medications for these transplants ordered on prescription by a physician licensed pursuant to title 32, chapter 13 or 17.

12. Medically necessary emergency and nonemergency transportation.

13. Inpatient and outpatient behavioral health services that are the same as the least restrictive health benefits coverage plan for behavioral health services that are offered through a health care services organization for state employees under section 38-651.

14. Hospice care.

B. The administration shall pay noncontracting providers only for health and medical services as prescribed in subsection A of this section.

C. To the extent possible and practicable, the administration and contractors shall provide for the prior approval of medically necessary services provided pursuant to this article.

D. The director shall make available home health services in lieu of hospitalization pursuant to contracts awarded under this article.

E. Behavioral health services shall be provided to members through the administration's contractors. The administration acting through regional behavioral health authorities as defined in section 36-3401 shall use its established diagnostic and evaluation program for referrals of children who are not already enrolled pursuant to this article and who may be in need of behavioral health services. In addition to an evaluation, the administration acting through regional behavioral health authorities as defined in section 36-3401 shall also identify children who may be eligible under section 36-2901, paragraph 6, subdivision (a) or section 36-2931, paragraph 5 and shall refer the children to the appropriate agency responsible for making the final eligibility determination.

F. The director shall adopt rules for the provision of transportation services for members. Prior authorization is not required for medically necessary ambulance transportation services rendered to members initiated by dialing telephone number 911 or other designated emergency response systems.

G. The director may adopt rules to allow the administration to use a second opinion procedure under which surgery may not be eligible for coverage pursuant to this article without documentation as to need by at least two physicians or primary care practitioners.

H. All health and medical services provided under this article shall be provided in the geographic service area of the member, except:

1. Emergency services and specialty services.

2. The director may permit the delivery of health and medical services in other than the geographic service area in this state or in an adjoining state if it is determined that medical practice patterns justify the delivery of services or a net reduction in transportation costs can reasonably be expected. Notwithstanding section 36-2981, paragraph 8 or 11, if services are procured from a physician or primary care practitioner in an adjoining state, the physician or primary care practitioner shall be licensed to practice in that state pursuant to licensing statutes in that state that are similar to title 32, chapter 13, 15, 17 or 25.

I. Covered outpatient services shall be subcontracted by a primary care physician or primary care practitioner to other licensed health care providers to the extent practicable for purposes of making health care services available to underserved areas, reducing costs of providing medical care and reducing transportation costs.

J. The director shall adopt rules that prescribe the coordination of medical care for members and that include a mechanism to transfer members and medical records and initiate medical care.

K. The director shall adopt rules for the reimbursement of specialty services provided to the member if authorized by the member's primary care physician or primary care practitioner.

L. Pursuant to the terms and conditions that are approved by the centers for medicare and medicaid services and subject to available funding, the director shall implement limited benefit coverage prerelease services to eligible incarcerated individuals or committed youth for up to ninety days immediately before the individuals' or committed youth's expected date of release from a prison, jail, secure care facility or tribal correctional facility.

§ 36-2990 Quality of health care monitoring standard; development; adoption; use; additional monitoring; costs

A. The administration shall develop standards of care that each contractor shall use to monitor the quality of health care received by members.

B. The director shall periodically determine whether each contractor has properly adopted and implemented standards to ensure the quality of health care. If the director determines that a contractor is out of compliance, the director shall undertake additional efforts to monitor and assess the quality of health care provided by that contractor for the period of time that the director deems necessary. The director shall determine the cost incurred in undertaking these special efforts and shall deduct that amount from any payment owed to the contractor.

§ 36-2991 Fraud; penalties; enforcement; violation; classification

A. A person shall not provide or cause to be provided false or fraudulent information on an application for eligibility pursuant to this article.

B. A person who violates subsection A of this section, who is determined eligible for services pursuant to this article and who would have been determined ineligible if the person had provided true and correct information is subject, in addition to any other penalties that may be prescribed by federal or state law, to a civil penalty of not more than the amount incurred by the system, including capitation payments made on behalf of the person. In addition, the person's eligibility may be discontinued in accordance with rules adopted by the director.

C. In addition to the requirements of state law, any applicable fraud and abuse controls that are enacted under federal law apply to persons who are eligible for services under this article and to contractors and noncontracting providers who provide services under this article.

D. The director shall make the determination to assess a civil penalty and is responsible for collection of the penalty. The director may adopt rules that prescribe procedures for the determination and collection of civil penalties. The director may compromise civil penalties imposed under this section in accordance with criteria established in rules.

E. The director shall adopt rules providing for the appeal of a decision by a person adversely affected by a determination made by the director under this section. The director's final decision is subject to judicial review pursuant to title 12, chapter 7, article 6.

F. Amounts paid by the state and recovered under this section shall be deposited in the state general fund, and any applicable federal share shall be returned to the United States department of health and human services.

G. If a civil penalty imposed pursuant to subsection D of this section is not paid, the state may file an action to collect the civil penalty in the superior court in Maricopa county. Matters that were raised or could have been raised in a hearing before the director or in an appeal pursuant to title 12, chapter 7, article 6 may not be raised as a defense to the civil action. An action brought pursuant to this subsection shall be initiated within six years after the date the claim is presented.

H. A person who knowingly aids or abets another person pursuant to section 13-301, 13-302 or 13-303 in the commission of an offense under this section or section 13-3713 is guilty of a class 5 felony.

§ 36-2992 Duty to report fraud or abuse; immunity; unprofessional conduct

A. All contractors and noncontracting providers shall advise the director or the director's designee immediately in a written report of any cases of suspected fraud or abuse. The director shall review the report and conduct a preliminary investigation to determine if there is a sufficient basis to warrant a full investigation. If the findings of a preliminary investigation give the director reason to believe that an incident of fraud or abuse has occurred, the matter shall be referred to the attorney general.

B. Any person making a complaint or furnishing a report, information or records in good faith pursuant to this section is immune from any civil liability by reason of that action unless that person has been charged with or is suspected of the reported fraud or abuse.

C. Any health care provider who fails to report pursuant to this section commits an act of unprofessional conduct and is subject to disciplinary action by the provider's licensing board or department.

§ 36-2993 Prohibited acts; penalties

A. A person shall not present or cause to be presented to this state or to a contractor:

1. A claim for a medical service or any other item that the person knows or has reason to know was not provided as claimed.

2. A claim for a medical service or any other item that the person knows or has reason to know is false or fraudulent.

3. A claim for payment that the person knows or has reason to know may not be made by the administration because:

(a) The person was terminated or suspended from participation in the program on the date for which the claim is being made.

(b) The item or service claimed is substantially in excess of the needs of the individual or of a quality that fails to meet professionally recognized standards of health care.

(c) The person was not a member on the date for which the claim is being made.

4. A claim for a service or an item by a person who knows or has reason to know that the individual who furnished or supervised the furnishing of the service:

(a) Was not licensed as a physician or another health care professional requiring state licensure.

(b) Obtained the individual's license through a misrepresentation of material fact.

(c) Represented to the member at the time the service was furnished that the physician was certified in a medical specialty by a medical specialty board if the individual was not certified.

5. A request for payment that the person knows or has reason to know is in violation of an agreement between the person and this state or the administration.

B. A person who violates this section is subject, in addition to any other penalties that may be prescribed by law, to a civil penalty of not more than two thousand dollars for each item or service claimed and is subject to an assessment of not more than twice the amount claimed for each item or service.

C. The director or the director's designee shall make the determination to assess civil penalties and is responsible for the collection of penalty and assessment amounts. The director shall adopt rules that prescribe procedures for the determination and collection of civil penalties and assessments. Civil penalties and assessments imposed under this section may be compromised by the director or the designee in accordance with criteria established in rules. The director or the director's designee may make this determination in the same proceeding to exclude the person from participation in the program.

D. A person adversely affected by a determination of the director or the director's designee under this section may appeal that decision in accordance with provider grievance provisions prescribed by rule. The final decision is subject to judicial review pursuant to title 12, chapter 7, article 6.

E. The administration shall deposit, pursuant to sections 35-146 and 35-147, monies collected pursuant to this section in the state general fund. The amount of the penalty or assessment may be deducted from any amount then or later owing by the administration or this state to the person against whom the penalty or assessment has been imposed.

F. If a civil penalty or assessment imposed pursuant to this section is not paid, this state or the administration shall file an action to collect the civil penalty or assessment in the superior court in Maricopa county. Matters that were raised or could have been raised in a hearing before the director or in an appeal pursuant to title 12, chapter 7, article 6 may not be raised as a defense to the civil action. An action brought pursuant to this subsection shall be initiated within six years after the date the claim was presented.

§ 36-2994 Monthly financial report

A. The director shall include in the monthly report submitted to the president of the senate and the speaker of the house of representatives pursuant to section 36-2920 the following information about the program:

1. The actual year to date expenditures and projected annual expenditures.

2. The actual member months.

3. Monies recovered monthly from third party payors.

4. The amount and origin of any donation or grant from a private entity and the impact on the implementation of the program.

B. The report shall be submitted on or before the twenty-fifth day of the following month.

C. The director shall provide a copy of the monthly report to the chairmen of the house of representatives and senate standing committees on appropriations and health.

§ 36-2995 Children's health insurance program fund; sources of monies; use; reversion; claims

A. The children's health insurance program fund is established. The administration shall administer the fund and shall use fund monies to pay administrative and program costs associated with the operation of the program established by this article.

B. Separate accounting shall be made for each source of monies received pursuant to subsection C of this section for expenses and income activity associated with the program established pursuant to this article.

C. Monies in the fund are comprised of:

1. Federal monies available to this state for the operation of the program.

2. Tobacco tax and state general fund monies appropriated as state matching monies.

3. Gifts, donations and grants from any source.

4. Interest paid on monies deposited in the fund.

5. Third party liability recoveries.

D. If a gift, a donation or a grant of over ten thousand dollars received from any private source contains a condition, the administration shall first meet with the joint legislative study committee on the integration of health care services to review the condition before it spends that gift, donation or grant.

E. All monies in the fund other than monies appropriated by this state do not lapse.

F. Monies appropriated from the medically needy account of the tobacco tax and health care fund are exempt from section 35-190 relating to lapsing of appropriations. Notwithstanding section 35-191, subsection B, the period for administrative adjustments extends for only six months for appropriations made for administration covered services.

G. Notwithstanding sections 35-190 and 35-191, all approved claims for system covered services presented after the end of the fiscal year in which they were incurred shall be paid either in accordance with this section or in the current fiscal year with the monies available in the funds established by this section.

H. Claims for covered services that are determined to be valid by the director and the grievance and appeal procedure shall be paid from the children's health insurance program fund.

I. All payments for claims from the children's health insurance program fund shall be accounted for by the administration by the fiscal year in which the claims were incurred, regardless of the fiscal year in which the payments were made.

J. Notwithstanding any other law, county owned or contracted providers and special health care district owned or contracted providers are subject to all claims processing and payment requirements or limitations of this chapter that are applicable to noncounty providers.

§ 36-2998 Qualifying plans

A. A qualifying plan, as defined in section 36-2981, may elect to participate in the children's health insurance program established pursuant to this article, subject to all requirements established in this article and in accordance with section 36-2989.

B. The director of the Arizona health care cost containment system shall establish the terms and conditions that shall be used to exercise the option to participate.

Article 6 Nursing Facility Provider Assessments

§ 36-2999.51 Definitions

(Rpld. 10/1/31)

In this article, unless the context otherwise requires:

1. "Continuing care retirement community" means an entity that provides nursing facility services and assisted living or independent living services on a contiguous campus that is either registered as a life care facility with the department of insurance and financial institutions or has assisted living and independent living beds in the aggregate that equal at least twice the number of nursing facility beds. For the purposes of this paragraph, "contiguous" means land that adjoins or touches the other property held by the same or a related organization and land divided by a public road.

2. "Fiscal year" means the period beginning on October 1 and ending on September 30.

3. "Medicare resident days" means resident days that are funded by the medicare program, a medicare advantage or special needs plan or the medicare hospice program.

4. "Net patient service revenue" means gross inpatient revenues from services that are provided to nursing facility patients minus reductions from gross inpatient revenue. For the purposes of this paragraph, inpatient revenues from services do not include nonpatient care revenues such as beauty and barber income, vending income, interest and contributions, revenues from the sale of meals and all outpatient revenues.

5. "Nursing facility" means a health care institution that provides inpatient beds or resident beds and nursing services to persons who need nursing services on a continuing basis but who do not require hospital care or direct daily care from a physician. Nursing facility does not include the Arizona veterans' homes.

6. "Reductions from gross inpatient revenue" includes bad debts, contractual adjustments, uncompensated care, administrative, courtesy and policy discounts, adjustments and other similar revenue deductions.

7. "Resident day" means a calendar day of care provided to a nursing facility resident, including the day of admission and excluding the day of discharge. Resident day includes a day on which a bed is held for a patient and for which the facility receives compensation for holding the bed.

8. "Upper payment limit" means the limitation established pursuant to 42 Code of Federal Regulations section 447.272 that disallows federal matching funds if a state medicaid agency pays certain classes of nursing facilities an aggregate amount for services that would exceed the amount that would be paid for the same services furnished by that class of nursing facilities under medicare payment principles.

§ 36-2999.52 Nursing facility quality assessments; calculation; limitation; exceptions

(Rpld. 10/1/31)

A. Beginning October 1, 2012, the administration shall charge a quality assessment on health care items and services provided by nursing facilities in order to obtain federal financial participation in the services provided pursuant to this chapter. The administration shall use these monies for supplemental payments to nursing facilities for covered medicaid expenditures, not to exceed the medicare upper payment limit program requirements.

B. Each nursing facility shall pay the assessment prescribed pursuant to this section to the department of revenue for deposit on a quarterly basis in the nursing facility assessment fund established by section 36-2999.53.

C. Unless otherwise required by law, title 42, chapter 5, article 1 governs the administration of the assessment prescribed pursuant to this section except that:

1. A separate license is not required for the assessment.

2. If a nursing facility does not have a transaction privilege tax license, it shall obtain one pursuant to section 42-5005.

3. Each facility shall report and pay the assessment on forms prescribed by the department of revenue.

4. A separate bond is not required of employees of the department of revenue who administer the assessment.

5. The assessment may be included without segregation in any notice and lien filed for unpaid transaction privilege taxes.

D. The administration shall calculate the quality assessment on the net patient service revenue of all nursing facilities that are subject to the quality assessment. The quality assessment may not exceed three and one-half per cent of net patient service revenue and shall be calculated and paid on a per resident day basis exclusive of medicare resident days. Except as prescribed in this section, the per resident day assessment is the same amount for each affected facility.

E. Pursuant to 42 Code of Federal Regulations section 433.68(e)(1) and (2), the administration shall request a waiver of the broad-based and uniform provider assessment requirements of federal law to exclude certain nursing facilities from the quality assessment and to permit certain high volume medicaid nursing facilities or facilities with a high number of total annual patient days to pay the quality assessment at a lesser amount per nonmedicare resident day.

F. Subject to federal approval pursuant to 42 Code of Federal Regulations section 433.68(e)(2), the following nursing facility providers are exempt from the quality assessment:

1. Continuing care retirement communities.

2. Nursing facilities with fifty-eight or fewer beds.

G. The administration shall lower the quality assessment for either certain high volume medicaid nursing facilities or certain facilities with high patient volumes to meet the redistributive test of 42 Code of Federal Regulations section 433.68(e)(2).

§ 36-2999.53 Nursing facility assessment fund

(Rpld. 10/1/31)

A. The nursing facility assessment fund is established consisting of the following:

1. Monies received by the administration from nursing facility assessments pursuant to this article.

2. Federal monies and federal matching monies received by the administration as a result of expenditures made by the administration that are attributable to monies deposited in the fund.

3. Interest or penalties collected pursuant to this article.

4. Legislative appropriations.

5. Private grants, gifts, contributions and devises from any source received to assist in carrying out the purposes of this article.

B. The administration shall administer the fund. Monies in the fund are continuously appropriated.

C. The administration shall use fund monies only for the following:

1. To qualify for federal matching funds for supplemental payments for nursing facility services within medicare upper payment limit program requirements.

2. To pay administrative expenses incurred by the administration or its agents in performing the activities authorized by this chapter, provided that these expenses may not exceed one per cent of the aggregate assessment funds collected for the fiscal year.

3. To reimburse the medicaid sharer of the quality assessment.

4. To provide medicaid supplemental payments to fund covered services to nursing facility medicaid beneficiaries within medicare upper payment limits.

D. On notice from the administration, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

§ 36-2999.54 Assessments; failure to pay; suspension or revocation

(Rpld. 10/1/31)

A. Each nursing facility shall pay a quality assessment as prescribed pursuant to this article. The administration shall determine the assessment rate prospectively for the applicable fiscal year on a per resident day basis, exclusive of medicare resident days. The administration shall adopt rules for facility reporting of nonmedicare resident days and for payment of the assessment.

B. A nursing facility may increase its charges to other payors to incorporate the assessment but may not establish a separate line-item charge on the bill reflecting the assessment.

C. If an entity conducts, operates or maintains more than one nursing facility, the entity must pay a quality assessment for each nursing facility separately.

D. If a nursing facility does not pay the full amount of the assessment when due, the director of the Arizona health care cost containment system administration may suspend or revoke the nursing facility's Arizona health care cost containment system provider agreement registration. If the nursing facility does not comply within one hundred eighty days after the director of the Arizona health care cost containment system administration suspends or revokes the nursing facility's provider agreement, the director of the Arizona health care cost containment system administration shall notify the director of the department of health services, who shall suspend or revoke the nursing facility's license pursuant to section 36-427.

§ 36-2999.55 Adjustment of payments; definition

(Rpld. 10/1/31)

A. A nursing facility is eligible for quarterly nursing facility adjustments based on nursing facility days from the most recent cost report before the start of the fiscal year. If cost report data is unavailable for a nursing facility, the administration may use other data sources or request patient day information from the facility to estimate nursing facility days.

B. The administration shall make adjustment payments on a quarterly basis to reimburse the medicaid portion of the assessment and other covered medicaid expenditures in the aggregate within the upper payment limit. Each quarterly payment shall be made not later than thirty days after the end of the calendar quarter with the initial adjustment payment due within thirty days after approval by the centers for medicare and medicaid services of the quality assessment waiver and state plan reflecting the nursing facility adjusted payments.

C. Subject to approval by the centers for medicare and medicaid services, a nursing facility that is located outside of this state may not receive payments pursuant to this article.

D. For the purposes of this section, "nursing facility days" means the days of nursing facility services, including bed hold days, paid for by the Arizona medical assistance program for the applicable state fiscal year.

§ 36-2999.56 Modifications

(Rpld. 10/1/31)

The administration may modify the categories of facilities exempt from the quality assessment and the rate adjustment provisions of this article if this is necessary to obtain and maintain approval by the centers for medicare and medicaid services and if the modification is consistent with purposes of this article.

§ 36-2999.57 Discontinuance of assessments

(Rpld. 10/1/31)

A. The department of revenue shall discontinue collection of all assessments if any of the following applies:

1. The quality assessment waiver or the state plan amendment reflecting the quarterly nursing facility adjustment payments is not approved by the centers for medicare and medicaid services.

2. The administration reduces funding for nursing facility services below the state appropriation in effect on the effective date of this article.

3. The administration or any other state agency attempts to use monies in the nursing facility assessment fund established pursuant to section 36-2999.53 for any use other than those permitted pursuant to this article.

4. Federal financial participation to match the quality assessments made pursuant to this article becomes unavailable under federal law, in which case the administration must terminate the imposition of the assessments beginning on the date the federal statutory, regulatory or interpretive changes take effect.

B. If the department of revenue discontinues collection of the assessment pursuant to this section, it shall return all monies in the nursing facility assessment fund established by section 36-2999.53 to the nursing facilities from which the assessment was collected on the same basis as the assessments were assessed.

Article 7 Health Care Financial Stabilization

§ 36-2999.71 Definitions

(Conditionally Rpld.)

In this article, unless the context otherwise requires:

1. "Administration" has the same meaning prescribed in section 36-2901.

2. "Base reimbursement level":

(a) Means the total expenditures by the Arizona health care cost containment system and its contracted health plans for hospital services to eligible persons in state fiscal year 2019-2020.

(b) Does not include directed payments made pursuant to this article or payments made through the pediatric services initiative pursuant to 42 Code of Federal Regulations section 438.6(c).

3. "Director" has the same meaning prescribed in section 36-2901.

§ 36-2999.72 Hospital assessment; rules; collection; enforcement

(Conditionally Rpld.)

A. In addition to the assessment established pursuant to section 36-2901.08, beginning October 1, 2020, the director shall establish, administer and collect an assessment on hospital revenues, discharges or bed days with respect to inpatient or outpatient services, or both, for the purposes prescribed in section 36-2999.73.

B. The director shall adopt rules regarding the method for determining the assessment, the amount or rate of the assessment and modifications to or exemptions from the assessment. The assessment is subject to approval by the centers for medicare and medicaid services to ensure that the assessment is not established or administered in a manner that causes a reduction in federal financial participation.

C. The director may establish modifications to or exemptions from the assessment. In determining the modifications or exemptions, the director may consider such factors as the size of the hospital, the specialty services available to patients at the hospital and the geographic location of the hospital.

D. The director shall present any change to the hospital assessment methodology to the joint legislative budget committee for review.

E. The administration shall deposit, pursuant to sections 35-146 and 35-147, the monies collected pursuant to this section in the health care investment fund established by section 36-2999.73.

F. A hospital may not pass the cost of the assessment on to patients or third-party payors that are liable to pay for care on a patient's behalf. As part of its financial statement submissions pursuant to section 36-125.04, a hospital shall submit to the department of health services an attestation that it has not passed on the cost of the assessment to patients or third-party payors.

G. If a hospital does not comply with this section as prescribed by the director of the Arizona health care cost containment system, the director of the Arizona health care cost containment system may suspend or revoke the hospital's Arizona health care cost containment system provider agreement registration. If the hospital does not comply within one hundred eighty days after the director of the Arizona health care cost containment system suspends or revokes the hospital's provider agreement, the director of the Arizona health care cost containment system shall notify the director of the department of health services, who shall suspend or revoke the hospital's license pursuant to section 36-427.

§ 36-2999.73 Health care investment fund; purposes; approval

(Conditionally Rpld.)

A. The health care investment fund is established consisting of the following:

1. Monies deposited in the fund pursuant to section 36-2999.72.

2. Interest earned pursuant to this section.

3. Legislative appropriations.

B. The director shall administer the health care investment fund. The director may not use fund monies to pay for the base reimbursement level for hospital services. The director shall use fund monies as necessary only for the purpose of funding the nonfederal share of the cost for the following:

1. To make directed payments to hospitals pursuant to 42 Code of Federal Regulations section 438.6(c) that supplement the base reimbursement level for hospital services to eligible persons as defined in section 36-2901.

2. To increase base reimbursement rates for services reimbursed under the administration's dental fee schedule and physician fee schedule, not including the physician drug fee schedule, to the extent necessary as determined by the administration to restore these providers' rates to the rate levels in existence before fiscal year 2008-2009, if these expenses do not exceed the lesser of $70,500,000 or twenty percent of the total assessment monies deposited pursuant to section 36-2999.72 for the fiscal year.

3. To pay for the nonfederal share of the costs for administrative expenses incurred by the administration or its agents in performing the activities authorized by this section, if these expenses do not exceed one percent of the total assessment monies deposited pursuant to section 36-2999.72 for the fiscal year.

C. The administration shall develop a process to ensure that contractors pass through directed payments to eligible providers in a timely manner. Contractors may not reduce contracted rates as a result of directed payments.

D. Monies in the health care investment fund:

1. Are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

2. Are continuously appropriated.

3. Are to be credited against the total hospital assessment to be collected pursuant to section 36-2999.72 for the subsequent fiscal year if not expended for the purposes authorized under this section within the same fiscal year the monies are deposited in the fund.

4. May not be used to supplant existing and future appropriations to the administration for existing and future programs.

E. The administration may not use the monies in the health care investment fund pursuant to this section until the centers for medicare and medicaid services approves the use of the assessment monies for directed hospital expenditures pursuant to 42 Code of Federal Regulations section 438.6(c) and federal financial participation eligibility for the directed hospital expenditures contemplated under this section.

F. On notice from the administration, the state treasurer shall invest and divest monies in the health care investment fund as provided by section 35-313, and monies earned from investment shall be credited to the fund.

Chapter 30 Domestic Violence Services

Article 1 General Provisions

§ 36-3001 Definitions

In this chapter, unless the context otherwise requires:

1. "Administration" means the community services administration in the department of economic security.

2. "Domestic violence" means attempting to cause or causing bodily injury to a family or household member or placing a family or household member by threat of force in fear of imminent physical harm.

3. "Domestic violence service provider" means a facility whose primary purpose is to provide services to family or household members who are victims of domestic violence, including:

(a) Shelter for victims of domestic violence.

(b) Domestic violence victim advocacy.

(c) Other support services for domestic violence victims.

4. "Family or household member" means a spouse, a former spouse, a parent, a child or another adult person related by consanguinity or affinity who is residing or has resided or has a child or children in common with the person committing the domestic violence and dependents of such persons.

5. "Fund" means the domestic violence services fund.

6. "Program administrator" means the program administrator of the community services administration in the department of economic security.

7. "Shelter for victims of domestic violence" or "shelter" means a facility providing temporary residential service or facilities to family or household members who are victims of domestic violence.

§ 36-3002 Domestic violence services fund; purpose

A. The domestic violence services fund is established consisting of monies received pursuant to section 12-116.06, section 12-284.03, subsection A, paragraph 2, section 41-178 and section 43-618. The program administrator shall administer the fund for the purposes prescribed in this section.

B. The department of economic security, after full consultation with a statewide coalition against domestic violence, shall establish program priorities for the fund. Subject to legislative appropriation, the department shall expend monies in the fund to provide financial assistance to service providers for victims of domestic violence through contracts for services.

C. Monies in the fund do not revert to the state general fund.

§ 36-3005 Domestic violence service provider requirements for eligibility

A. To be eligible to receive fund monies under this chapter, a domestic violence service provider shall adhere to statewide service standards for domestic violence programs that are approved by the department of economic security in collaboration with a state coalition against domestic violence.

B. A domestic violence service provider does not qualify for fund monies if it discriminates in its admissions or provision of services on the basis of race, religion, color, age, disability, marital status, national origin or ancestry.

§ 36-3006 Methodology for allocation of fund monies

After full consultation with a state coalition against domestic violence, the department shall develop a weighted methodology for allocation of funding that considers the following:

1. The need for services.

2. Existing services.

3. Geographic location.

4. Population ratios.

§ 36-3007 Annual report

A. The department of economic security shall file an annual report with the governor, the speaker of the house of representatives and the president of the senate on or before October 1 and shall provide a copy of this report to the secretary of state. In preparing the report the department shall fully consult with a state coalition against domestic violence.

B. The report shall include the following information from each domestic violence service provider that receives monies pursuant to this chapter:

1. The population served.

2. The services provided.

3. The unmet needs of persons who receive services.

C. Information contained in the report shall not identify any person served by a service provider or enable any person to determine the identity of any such person.

§ 36-3008 Services for victims of domestic violence; personnel; fingerprinting; confidentiality; notification

A. Employees and volunteers of a domestic violence service provider shall have valid fingerprint clearance cards that are issued pursuant to title 41, chapter 12, article 3.1 or shall apply for a fingerprint clearance card within seven working days of employment or beginning volunteer work. Federally recognized Indian tribes or military bases may submit and the department shall accept certifications that state that employees of a domestic violence service provider who are employed by a domestic violence service provider and who provide services directly to victims of domestic violence have not been convicted of, have not admitted committing or are not awaiting trial on any offense under subsection B, paragraph 1 of this section.

B. Personnel shall certify on forms that are provided by the department and notarized that:

1. They are not awaiting trial on and have never been convicted of or admitted committing any of the criminal offenses listed in section 41-1758.03, subsections B and C in this state or similar offenses in another state or jurisdiction.

2. They have not been denied a license to operate a facility that provides services for domestic violence victims in this state or another state or had a license to operate a facility that provides services for domestic violence victims revoked.

C. The notarized forms are confidential.

D. The domestic violence service provider shall make good faith efforts to contact previous employers to obtain information or recommendations that may be relevant to an individual's fitness to work for the provider.

E. A domestic violence service provider shall notify the department of public safety if the provider receives credible evidence that a person who possesses a fingerprint clearance card either:

1. Is arrested for or charged with an offense listed in section 41-1758.03, subsection B.

2. Falsified information on the form required by subsection B of this section.

§ 36-3009 Disclosing location of shelters; prohibition; civil penalty

A. Information that may disclose the location or address of a shelter for victims of domestic violence is confidential and is not subject to public disclosure by a person or by a public or private agency in a manner that identifies the location or address as a shelter and threatens the safety of the inhabitants.

B. The program administrator shall impose a civil penalty of not more than one thousand dollars against a person or agency that knowingly and maliciously releases information in violation of this section.

C. The program administrator shall deposit, pursuant to sections 35-146 and 35-147, penalties collected pursuant to this section in the state general fund.

Chapter 31 Sexual Violence Services

Article 1 General Provisions

§ 36-3101 Definitions

In this chapter, unless the context otherwise requires:

1. "Department" means the department of economic security.

2. "Program administrator" has the same meaning prescribed in section 36-3001.

§ 36-3102 Sexual violence service fund; purpose; exemption

A. The sexual violence service fund is established consisting of legislative appropriations, grants and contributions. The program administrator shall administer the fund for the purposes prescribed in this article. Monies in the fund are subject to legislative appropriation and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

B. The department, in consultation with the federally designated statewide coalition to end sexual violence, shall establish program priorities for the fund. The department shall spend monies in the fund to provide grants to service providers for victims of sexual violence.

§ 36-3103 Sexual violence service providers; requirements; eligibility

A. To be eligible to receive a grant under this article, a sexual violence service provider shall adhere to statewide service standards for sexual violence programs that are approved by the department in collaboration with the federally designated statewide coalition to end sexual violence.

B. A sexual violence service provider does not qualify for grant monies if the service provider discriminates in its admission or provision of services on the basis of race, gender, religion, color, age, disability, marital status, national origin or ancestry.

§ 36-3104 Methodology for allocating grant monies

The department, in consultation with the federally designated statewide coalition to end sexual violence, shall develop a weighted methodology for allocating grant monies that considers all of the following:

1. The need for services.

2. Existing services.

3. Geographic location.

4. Population ratios.

§ 36-3105 Annual report

On or before October 1 of each year, the department shall provide an annual report to the governor, the speaker of the house of representatives and the president of the senate that includes information from each sexual violence service provider that receives grant monies pursuant to this article on the population served. In preparing the report the department shall consult with the federally designated statewide coalition to end sexual violence. The department shall provide a copy of this report to the secretary of state.

Chapter 32 Living Wills and Health Care Directives

Article 1 General Provisions

§ 36-3201 Definitions

In this chapter, unless the context otherwise requires:

1. "Agent" means an adult who has the authority to make health care treatment decisions for another person, referred to as the principal, pursuant to a health care power of attorney.

2. "Artificially administered" means providing food or fluid through a medically invasive procedure.

3. "Attending physician" means a physician who has the primary responsibility for a principal's health care.

4. "Comfort care" means treatment given in an attempt to protect and enhance the quality of life without artificially prolonging that life.

5. "Health care directive" means a document drafted in substantial compliance with this chapter, including a mental health care power of attorney, to deal with a person's future health care decisions.

6. "Health care power of attorney" means a written designation of an agent to make health care decisions that meets the requirements of section 36-3221 and that comes into effect and is durable as provided in section 36-3223, subsection A.

7. "Health care provider" means a natural person who is licensed under title 32, chapter 11, 13, 15, 17 or 25, a hospice as defined in section 36-401 that is licensed under chapter 4 of this title or an organization that is licensed under this title, that renders health care designed to prevent, diagnose or treat illness or injury and that employs persons licensed under title 32, chapter 11, 13, 15, 17 or 25.

8. "Inpatient psychiatric facility" means a hospital that contains an organized psychiatric services unit or a special hospital that is licensed to provide psychiatric services.

9. "Interested person" means the patient, a person listed under section 36-3231, subsection A, a health care provider directly involved in the patient's medical care or an employee of a health care provider.

10. "Living will" means a statement written either by a person who has not written a health care power of attorney or by the principal as an attachment to a health care power of attorney and intended to guide or control the health care treatment decisions that can be made on that person's behalf.

11. "Mental health care power of attorney" means a written designation of an agency to make mental health care decisions that meets the requirements of section 36-3281.

12. "Physician" means a doctor of medicine licensed pursuant to title 32, chapter 13 or doctor of osteopathic medicine licensed pursuant to title 32, chapter 17.

13. "Principal" means a person who is the subject of a health care power of attorney.

14. "Qualifying health information exchange organization" means a nonprofit health information organization as defined in section 36-3801 that is designated by the department of health services pursuant to section 36-3291 to operate the health care directives registry.

15. "Surrogate" means a person authorized to make health care decisions for a patient by a power of attorney, a court order or the provisions of section 36-3231.

§ 36-3202 Revocation of health care directive; disqualification of surrogate

Except as provided in section 36-3285 in regard to a mental health care power of attorney, a person may revoke the person's own health care directive or disqualify a surrogate by doing any of the following:

1. Making a written revocation of a health care directive or a written statement to disqualify a surrogate.

2. Orally notifying the surrogate or a health care provider.

3. Making a new health care directive.

4. Any other act that demonstrates a specific intent to revoke or to disqualify a surrogate.

§ 36-3203 Surrogate; authority; responsibilities; immunity

A. A person authorized as a surrogate to make health care decisions under this chapter is not responsible for paying the patient's health care costs unless the person is otherwise required to do so.

B. This chapter does not authorize a surrogate to consent to any act or omission to which the patient could not lawfully consent.

C. The surrogate shall make health care decisions for the patient in accordance with the patient's wishes as expressed in the health care directive. If the health care directive does not provide sufficient information to know what the patient would want in a particular circumstance, the surrogate shall base these decisions on the surrogate's knowledge of the patient's values if those are known or can be determined to the surrogate's satisfaction. If neither the health care directive nor the surrogate's knowledge of the patient's values provides a sufficient basis for making a health care decision, the surrogate shall decide based on the surrogate's good faith belief as to what is in the patient's best interest.

D. A surrogate who makes good faith health care decisions for a patient is not subject to civil or criminal liability for those decisions. Acts and refusals to act made in reliance on the provisions of a health care directive are presumed to be made in good faith. A court shall base a finding of an absence of good faith on information known to the surrogate and shall enter its finding only after it has made a determination of bad faith in written findings of fact based on clear and convincing evidence of improper motive. For the purposes of this subsection, "good faith" includes all health care decisions, acts and refusals to act based on a surrogate's reasonable belief of a patient's desires or a patient's best interest if these decisions, acts or refusals to act are not contrary to the patient's express written directions in a valid health care directive.

E. A surrogate who is not the patient's agent or guardian shall not consent to or approve the permanent withdrawal of the artificial administration of food or fluid.

§ 36-3204 Responsibilities of health care providers

A. A health care provider shall comply with health care decisions made by the patient's surrogate unless those decisions are inconsistent with the patient's health care directive as known to the provider or the provider has transferred responsibility to another provider pursuant to section 36-3205, subsection C, paragraph 1. If the directive requires provision of treatment, food or fluids that would have a significant possibility of sustaining the patient's life, the provider shall ensure the provision until the transfer is completed.

B. A health care provider has a duty to volunteer and otherwise disclose information about the patient's health status and care to the patient's surrogate to the same degree that the provider owes this duty to the patient.

§ 36-3205 Health care providers; immunity from liability; conditions

A. A health care provider who makes good faith health care decisions in reliance on the provisions of an apparently genuine health care directive or the direction of a surrogate is immune from criminal and civil liability and is not subject to professional discipline for that reliance.

B. Health care provider acts and refusals to act made in reliance on the provisions of a health care directive or directions of a surrogate are presumed to be made in good faith. A court shall base a finding of an absence of good faith on information known to the provider and shall enter its finding only after it has made a determination of bad faith in written findings of fact based on clear and convincing evidence of improper motive. For the purposes of this subsection, "good faith" includes all health care decisions, acts and refusals to act based on a health care provider's reasonable belief of a patient's desires, a patient's best interest or the directives of a patient's surrogate if these decisions, acts or refusals to act are not contrary to the patient's express written directions in a valid health care directive.

C. A health care provider is not subject to criminal or civil liability or professional discipline for any of the following:

1. Failing to comply with a decision or a direction that violates the provider's conscience if the provider promptly makes known the provider's unwillingness and promptly transfers the responsibility for the patient's care to another provider who is willing to act in accordance with the agent's direction.

2. Failing to consult a patient with a disability or incapacitated patient's surrogate if the surrogate cannot be contacted after the health care provider has made a reasonable effort to do so or if an emergency situation does not provide the health care provider with sufficient time to locate and consult with the surrogate.

3. Relying on a court order concerning a patient.

4. A guardian's failure to comply with section 14-5303, subsection B relating to the requirement that the petition include a statement that the authority granted to the guardian may include the authority to withhold or withdraw life sustaining treatment, including artificial food and fluid.

D. This section does not relieve a health care provider from civil or criminal liability or prevent a provider from being subjected to professional disciplinary action for the provider's negligent treatment of a patient if the negligence is unrelated to the provider's reliance on a health care directive, directions from a surrogate or the recommendations of an institutional ethics committee pursuant to section 36-3231.

§ 36-3206 Enforcement or challenge of a directive or decision; judicial proceedings; automatic stays

A. An interested person may file a verified petition with the superior court to determine the validity or effect of a health care directive or the decision of a surrogate.

B. The petition shall include the following information:

1. The name and current location of the patient and any surrogate or guardian authorized to make decisions for the patient.

2. The name and address of any health care provider known by the petitioner to be providing health care to the principal.

3. If a health care directive exists, a description or a copy of the health care directive.

4. The judicial relief sought by the petitioner.

C. On the filing of the petition, the court shall enter a temporary order directing compliance with section 36-3203, subsection E. Notice of this order shall be provided by personal service on the surrogate, the patient, the health care providers immediately responsible for the patient's care and other persons the court requires to be notified.

D. The court shall review the petition, any other pleadings on file and any evidence offered by the petitioner to determine if it should order temporary orders without a further hearing. The court may enter a temporary order directing the provision or the withholding of specific medical treatment pending a further hearing if the court determines that there is reasonable cause to believe that health care decisions are being made by a surrogate or a health care provider that derogate the patient's wishes or, if the patient's wishes are not known, the patient's best interests.

E. The court shall schedule and conduct a hearing within five working days of the filing of a petition. Notice shall be provided by personal service on the surrogate, the patient, the health care providers immediately responsible for the patient's care, and other persons the court requires to be notified.

F. On the filing of the petition the court may:

1. Appoint an attorney for the patient if it appears that this is in the patient's best interests.

2. Appoint an investigator as provided under section 14-5308 or a physician, or both, to evaluate the patient and submit a written report to the court before the hearing.

3. Enter other temporary orders that the court determines are necessary and appropriate to protect the wishes or the best interests of the patient, including an order exercising the power of a guardian or appointing a temporary guardian as provided under section 14-5310.

G. A person filing a petition under this section is not required to post a bond unless the court determines that a bond is necessary to protect the interests of any party.

H. If a petition is filed to challenge the decision of a guardian to permanently withdraw the artificial administration of food and fluid from a patient who is in an irreversible coma or is in a persistent vegetative state that the patient's doctor believes is irreversible or incurable, there is a rebuttable presumption that a patient who does not have a valid living will, power of attorney or other health care directive has directed the patient's health care providers to provide the patient with food and fluid to a degree that is sufficient to sustain life, including, if necessary, through a medically invasive procedure, by way of the gastrointestinal tract or intravenously, and that that provision is in the patient's best interests.

I. The presumption pursuant to subsection H of this section may be rebutted only if either of the following applies:

1. In reasonable medical judgment any of the following applies:

(a) The provision of food or fluid is not medically possible.

(b) The provision of food or fluid would hasten death.

(c) Because of the medical condition of the patient, the patient would be incapable of digesting or absorbing the food or fluid so that its provision would not contribute to sustaining the patient's life or provide physical comfort to the patient.

2. The court finds both of the following by clear and convincing evidence:

(a) The patient is in an irreversible coma or is in a persistent vegetative state that is irreversible or incurable. Evidence that the patient is in an irreversible coma or is in a persistent vegetative state that is irreversible or incurable must be supported by either of the following:

(i) The opinion of an independent physician who is licensed pursuant to title 32, chapter 13 or 17 and who is a specialist in neurology. The petitioner, the patient or the patient's attorney may present additional evidence of the patient's medical condition that is supported by the opinion of a physician selected by that party.

(ii) If a specialist in neurology is not available, the opinion of an independent physician who is licensed pursuant to title 32, chapter 13 or 17 and who has examined the patient specifically to assess whether the patient is in an irreversible coma or a persistent vegetative state that is irreversible or incurable supported by a recommendation of the institutional bioethics committee of the health care facility.

(b) While competent the patient manifested the patient's intent that medically invasive life prolonging treatment, including the artificial administration of food or fluid, not be administered in the case of an irreversible coma or a persistent vegetative state that is irreversible or incurable.

J. On notice and a hearing, the court may enter appropriate orders to safeguard the wishes of the patient. If the court is unable to determine those wishes, the court may enter appropriate orders to safeguard the patient's best interest. These orders may include:

1. Appointing a surrogate if the procedural requirements of title 14, chapter 5, article 3 have been met.

2. Removing an agent or any other surrogate and appointing a successor.

3. Directing compliance with the terms of the patient's health care directive, including the provisional removal or withholding of treatment if the court finds that this conforms with the patient's wishes or, if the patient's wishes are not known, is in the patient's best interest.

4. Directing the transfer of the patient to a suitable facility or to the care of a health care provider who is willing to comply with the patient's wishes.

5. Assessing court costs and attorney fees against a party found to have proceeded in bad faith.

K. Notwithstanding a person's incapacity, the court may deny a petition to appoint a guardian for that person based on the existence of a valid and unrevoked health care directive.

L. A guardian appointed pursuant to this section is immune from civil and criminal liability to the same extent as any other surrogate pursuant to section 36-3203, subsection D.

M. A superior court order that authorizes a guardian to permanently withdraw food or fluid from a patient who is in an irreversible coma or in a persistent vegetative state that is irreversible or incurable is automatically stayed for five business days to allow a party, or that party's successor in interest in the event of the original party's death, to seek an expedited appeal with the court of appeals. A decision from the court of appeals is automatically stayed for five business days to allow a party, or that party's successor in interest in the event of the original party's death, to seek review by the supreme court. Food or fluid shall not be permanently withdrawn pending a decision on the merits of the case by the court of appeals or a decision on a petition by the supreme court.

§ 36-3207 Health care directives; effect on insurance and medical coverage

A. A person shall not require a person to execute or prohibit a person from executing a health care directive as a condition for providing health care services or insurance.

B. An insurer shall not refuse to pay for goods or services under a patient's insurance policy because the decision to use the goods or services was made by the patient's surrogate.

C. If a patient's death follows the withholding or withdrawing of any medical care pursuant to a surrogate's decision not expressly precluded by the patient's health care directive, that death does not constitute a homicide or a suicide and does not impair or invalidate an insurance policy, an annuity or any other contract that is conditioned on the life or death of the patient regardless of any terms of that contract.

§ 36-3208 Prior and out of state health care directives; validity

A health care directive prepared before September 30, 1992, or prepared in another state, district or territory of the United States is valid in this state if it was valid in the place where and at the time when it was adopted and only to the extent that it does not conflict with the criminal laws of this state.

§ 36-3209 Health care directives; conflicts

A. If there are conflicts among the provisions of valid health care directives, the most recent directive is deemed to represent the wishes of the patient.

B. Notwithstanding any other law, if there is a conflict between a provision of a valid health care directive, the decision of a patient's agent pursuant to a valid health care power of attorney or the decision of a surrogate decision maker pursuant to section 36-3231 and a health care provider's order, including an order regarding life-sustaining treatment or a similar document, the health care directive, the decision of the patient's agent or the decision of the surrogate decision maker is presumed to represent the decision of the patient.

§ 36-3210 Suicide; mercy killing

This chapter does not approve or authorize suicide, assisted suicide or mercy killing.

§ 36-3211 Principals; significant relationships; contact orders; definitions

A. Unless inconsistent with the express directions of the principal in a health care directive, an agent shall encourage and allow contact between the principal and other persons who have a significant relationship with the principal.

B. An agent may not limit, restrict or prohibit reasonable contact between the principal and any other person without prior court approval, unless the principal has granted the agent such authority in a health care directive.

C. A person who has a significant relationship with the principal and whose contact with the principal has been limited, restricted or prohibited by an agent may petition the court for an order compelling the agent to allow the person to have contact with the principal. The petition shall describe the nature of the relationship between the person and the principal and the type and frequency of contact being requested. The person has the burden of proving that the person has a significant relationship with the principal and that the requested contact is in the principal's best interest. The petition and notice of the hearing on the petition shall be personally served on the principal and the agent and shall be provided to any other persons the court orders.

D. A principal whose contact with a person who has a significant relationship with the principal has been limited, restricted or prohibited by an agent may petition the court for an order compelling the agent to allow the principal to have contact with the person. The petition shall describe the nature of the relationship between the person and the principal and the type and frequency of contact being requested. The principal has the burden of proving that the person has a significant relationship with the principal and that the requested contact is in the principal's best interest. The petition and notice of the hearing on the petition shall be personally served on the agent and the person whose contact will be affected and shall be provided to any other persons the court orders.

E. If an agent who does not have authority expressly granted in a health care directive to limit, restrict or prohibit contact between the principal and another person reasonably believes that contact between the principal and the person is not in the principal's best interest, the agent may petition the court for an order that limits, restricts or prohibits contact between the person and the principal. The petition shall describe the nature of the relationship between the person and the principal and the limitations or restrictions on the contact being requested and why the limitations or restrictions are in the principal's best interest. If the agent requests an order that prohibits all contact between a person and the principal because the contact would be detrimental to the principal's physical or emotional health or well-being, the agent shall file with the court a written statement or report of a physician, psychologist, physician assistant or registered nurse who has recently evaluated the principal and who supports this position. The petition and notice of the hearing on the petition shall be personally served on the principal and the person whose contact will be affected and shall be provided to any other persons the court orders.

F. In determining what, if any, contact between a person and the principal is in the principal's best interest, the court shall consider all factors that are relevant to the principal's health, safety and welfare, including the following:

1. The past and present relationship between the principal and the person whose contact is being considered.

2. If the principal has sufficient mental capacity to make an intelligent choice, the wishes of the principal.

3. The mental and physical health of the principal and the person whose contact is being considered.

4. Whether the person whose contact is being considered has committed any of the following:

(a) Act involving domestic violence as defined in section 13-3601.

(b) Child abuse.

(c) Abuse, neglect or exploitation of a vulnerable adult.

5. Whether the person whose contact is being considered has abused drugs or alcohol or has been convicted of any drug offense listed in title 13, chapter 34 or a violation of title 28, chapter 4, article 3.

6. Whether the person whose contact is being considered is listed in the elder abuse central registry pursuant to section 46-457 or is required to register pursuant to section 13-3821.

7. Whether the person whose contact is being considered has been convicted of a violation of section 13-2907.02 or 13-2907.04.

G. On the filing of a petition under this section, the court:

1. Shall appoint an attorney or guardian ad litem, or both for the principal.

2. May appoint an investigator as provided under section 14-5308 or a physician, or both, to evaluate the principal and submit a written report to the court before the hearing.

3. May enter any other temporary order that the court determines is necessary and appropriate to protect the wishes or best interests of the principal, including an order exercising the power of a guardian or appointing a temporary guardian as provided under section 14-5310.

4. May issue, without notice, a temporary protective order that limits, restricts or prohibits contact between the principal and another person if the petition is supported by a written statement or report of a physician, psychologist, physician assistant or registered nurse who has recently evaluated the principal and the court finds, based on the statement or report and other specific facts shown by affidavit or verified petition, reasonable grounds to believe that contact between the principal and the person before the matter can be heard would result in immediate and irreparable injury, loss or damage to the principal. The temporary protective order expires on the date prescribed by the court but not later than fourteen days after the order is entered, unless within that time the court extends the order for good cause shown or the person whose contact is limited, restricted or prohibited consents to the extension. If the temporary protective order is issued, the court shall require that the petition and order be personally served on the principal and the person whose contact is the subject of the order within the time ordered by the court but not more than seventy-two hours after entry of the order. If the court issues a temporary protective order without notice, the principal or the person whose contact has been limited, restricted or prohibited may file a motion requesting that the order be dissolved or modified. The person filing the motion shall cause a copy of the motion to be personally served on the agent and any other person the court orders. The court shall proceed to hear and determine the motion as expeditiously as possible.

H. Except as provided in subsection G, paragraph 4 of this section, the petitioner shall cause notice of the time and place of hearing of any petition filed under this section to be given at least fourteen days before the hearing.

I. Unless inconsistent with the standards and procedures set forth in this section, a petition filed under this section shall be heard and determined as a formal proceeding filed under title 14 and governed by the rules of probate procedure.

J. A principal, an agent or a person who has a significant relationship with the principal may petition the court to modify a contact order if a material change in circumstances affecting the principal's health, safety or welfare has occurred since the last contact order was entered. The petition shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order. The court shall deny the petition unless the court finds that the petition establishes good cause for a hearing, in which case the court shall set a hearing on the petition. The petition and notice of the hearing on the petition shall be served on the principal, the agent and the person whose contact is being considered and shall be provided to any other persons the court orders.

K. A principal, an agent or a person who has a significant relationship with the principal may file a motion asking the court to temporarily modify or suspend a contact order if a material change in circumstances affecting the principal's health, safety or welfare has occurred since the last contact order was entered. The motion shall be supported by an affidavit alleging the change of circumstances that has occurred since the entry of the last contact order. The motion shall be filed contemporaneously with or after the filing of a petition to modify the prior contact order. The motion shall state whether the petitioner requests that the prior contact order be modified or suspended with or without notice to affected persons.

L. The court may temporarily modify or suspend a contact order without notice only if both of the following apply:

1. It clearly appears from specific facts shown in the motion or affidavit that immediate and irreparable injury, loss or damage likely will result if the order is not issued before the affected persons can be heard in opposition.

2. The moving party or the moving party's attorney certifies to the court in writing the efforts, if any, that the moving party or the moving party's attorney has made to give the notice or the reasons supporting the claim that notice should not be required.

M. If the court grants a motion to temporarily modify or suspend a contact order without notice, the court shall set a hearing on the motion.

N. An order temporarily modifying or suspending a contact order that is granted without notice shall state the injury, loss or damage that would likely have occurred if the order were not issued before giving the affected persons the opportunity to be heard in opposition. The temporary order expires at the date and time set for the hearing on the motion unless the temporary order is extended by the court for good cause.

O. The moving party shall personally serve a copy of the order and notice of the hearing on the person whose contact with the principal has been modified or suspended without notice within the time period the court directs but not more than seventy-two hours after entry of the order. The moving party shall personally serve a copy of the order and notice of hearing on the principal or the agent if either person is not the moving party.

P. On notice and a hearing, the court may enter appropriate orders to safeguard the wishes of the principal if those wishes can be reasonably ascertained. The court may assess court costs, reasonable attorney fees and the cost of any professionals appointed to evaluate the principal against a party found to have proceeded in bad faith or to have acted unreasonably.

Q. In a proceeding brought pursuant to this section, the court may order alternative dispute resolution, including mediation.

R. For the purposes of this section:

1. "Abuse" in relation to a vulnerable adult has the same meaning prescribed in section 46-451.

2. "Child abuse" means abuse as defined in section 8-201 of an individual who is under eighteen years of age.

3. "Contact" includes communications through any method, including in person, in writing and by electronic methods.

4. "Court" means the superior court.

5. "Exploitation" has the same meaning prescribed in section 46-451.

6. "Neglect" has the same meaning prescribed in section 46-451.

Article 2 Health Care Power of Attorney

§ 36-3221 Health care power of attorney; scope; requirements; limitations; fiduciaries

A. A person who is an adult may designate another adult individual or other adult individuals to make health care decisions on that person's behalf or to provide funeral and disposition arrangements in the event of the person's death by executing a written health care power of attorney that meets all of the following requirements:

1. Contains language that clearly indicates that the person intends to create a health care power of attorney.

2. Except as provided under subsection B of this section, is dated and signed or marked by the person who is the subject of the health care power of attorney.

3. Is notarized or is witnessed in writing by at least one adult who affirms that the notary or witness was present when the person dated and signed or marked the health care power of attorney, except as provided under subsection B, and that the person appeared to be of sound mind and free from duress at the time of execution of the health care power of attorney.

B. If a person is physically unable to sign or mark a health care power of attorney, the notary or each witness shall verify on the document that the person directly indicated to the notary or witness that the power of attorney expressed the person's wishes and that the person intended to adopt the power of attorney at that time.

C. A notary or witness shall not be any of the following:

1. A person designated to make medical decisions on the principal's behalf.

2. A person directly involved with the provision of health care to the principal at the time the health care power of attorney is executed.

D. If a health care power of attorney is witnessed by only one person, that person may not be related to the principal by blood, marriage or adoption and may not be entitled to any part of the principal's estate by will or by operation of law at the time that the power of attorney is executed.

E. A person whose license as a fiduciary has been suspended or revoked pursuant to section 14-5651 may not serve as an agent under a power of attorney in any capacity unless the person is related to the principal by blood, adoption or marriage. This prohibition does not apply if the person's license has been reinstated and is in good standing.

§ 36-3222 Health care power of attorney; amendments

An amendment to a health care power of attorney shall meet the requirements of section 36-3221, subsection A, paragraphs 2 and 3 unless the amendment is only made to indicate an agent's change of address or telephone number.

§ 36-3223 Agents; powers and duties; removal; responsibility; fiduciaries

A. The individual designated in a health care power of attorney to make health care decisions is an agent entitled to make and communicate these decisions while the principal is unable to do so.

B. An agent's authority to make health care decisions on behalf of the principal is limited only by the express language of the health care power of attorney or by court order as prescribed under section 36-3206.

C. The appointment of a person to act as an agent is effective until that authority is revoked by the principal or by court order.

D. A person whose license as a fiduciary has been suspended or revoked pursuant to section 14-5651 may not serve as an agent under a power of attorney in any capacity unless the person is related to the principal by blood, adoption or marriage. This prohibition does not apply if the person's license has been reinstated and is in good standing.

§ 36-3224 Sample health care power of attorney

Any writing that meets the requirements of section 36-3221 may be used to create a health care power of attorney. The following form is offered as a sample only and does not prevent a person from using other language or another form:

1. Health Care Power of Attorney

I, ___________________________________, as principal, designate ______________________ as my agent for all matters relating to my health care, including, without limitation, full power to give or refuse consent to all medical, surgical, hospital and related health care. This power of attorney is effective on my inability to make or communicate health care decisions. All of my agent's actions under this power during any period when I am unable to make or communicate health care decisions or when there is uncertainty whether I am dead or alive have the same effect on my heirs, devisees and personal representatives as if I were alive, competent and acting for myself.

If my agent is unwilling or unable to serve or continue to serve, I hereby appoint ____________________ as my agent.

I have _____ I have not _____ completed and attached a living will for purposes of providing specific direction to my agent in situations that may occur during any period when I am unable to make or communicate health care decisions or after my death. My agent is directed to implement those choices I have initialed in the living will.

I have _____ I have not _____ completed a prehospital medical care directive pursuant to section 36-3251, Arizona Revised Statutes.

This health care directive is made under section 36-3221, Arizona Revised Statutes, and continues in effect for all who may rely on it except those to whom I have given notice of its revocation.

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Signature of Principal

Witness: _____________________ Date: _____________________

_______________________________ Time: _____________________

Address: _____________________ ____________________________

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Address of Agent

Witness: _____________________ ____________________________

_______________________________ Telephone of Agent

Address: _____________________

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(Note: This document may be notarized instead of being witnessed.)

2. Autopsy (under Arizona law an autopsy may be required)

If you wish to do so, reflect your desires below:

_______ 1. I do not consent to an autopsy.

_______ 2. I consent to an autopsy.

_______ 3. My agent may give consent to or refuse an autopsy.

3. Organ Donation (Optional)

(Under Arizona law, you may make a gift of all or part of your body to a bank or storage facility or a hospital, physician or medical or dental school for transplantation, therapy, medical or dental evaluation or research or for the advancement of medical or dental science. You may also authorize your agent to do so or a member of your family may make a gift unless you give them notice that you do not want a gift made. In the space below you may make a gift yourself or state that you do not want to make a gift. If you do not complete this section, your agent will have the authority to make a gift of a part of your body pursuant to law. Note: The donation elections you make in this health care power of attorney survive your death.)

If any of the statements below reflects your desire, initial on the line next to that statement. You do not have to initial any of the statements.

If you do not check any of the statements, your agent and your family will have the authority to make a gift of all or part of your body under Arizona law.

_______ I do not want to make an organ or tissue donation and I do not want my agent or family to do so.

_______ I have already signed a written agreement or donor card regarding organ and tissue donation with the following individual or institution: ___________________________________

_______ Pursuant to Arizona law, I hereby give, effective on my death:

[] Any needed organ or parts.

[] The following part or organs listed:

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for (check one):

[] Any legally authorized purpose.

[] Transplant or therapeutic purposes only.

4. Physician Affidavit (Optional)

(Before initialing any choices above you may wish to ask questions of your physician regarding a particular treatment alternative. If you do speak with your physician it is a good idea to ask your physician to complete this affidavit and keep a copy for his file.)

I, Dr. ___________________________ have reviewed this guidance document and have discussed with _______________ any questions regarding the probable medical consequences of the treatment choices provided above. This discussion with the principal occurred on _________________.

(date)

I have agreed to comply with the provisions of this directive.

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Signature of Physician

5. Living Will (Optional. Section 36-3262, Arizona Revised Statutes, has a sample living will.)

6. Funeral and Burial Disposition (Optional)

My agent has authority to carry out all matters relating to my funeral and burial disposition wishes in accordance with this power of attorney, which is effective upon my death.

My wishes are reflected below:

_______ Upon my death, I direct my body to be buried. (as opposed to cremated)

_______ Upon my death, I direct my body to be buried in ___________________________________________________. (Optional directive)

_______ Upon my death, I direct my body to be cremated.

_______ Upon my death, I direct my body to be cremated, with my ashes to be_______________________________________. (Optional directive)

_______ My agent may make all funeral and burial disposition decisions. (Optional directive)

Article 3 Surrogate Decision Makers

§ 36-3231 Surrogate decision makers; priorities; limitations

A. If an adult patient is unable to make or communicate health care treatment decisions, a health care provider shall make a reasonable effort to locate and shall follow a health care directive. A health care provider shall also make a reasonable effort to consult with a surrogate. If the patient has a health care power of attorney that meets the requirements of section 36-3221, the patient's designated agent shall act as the patient's surrogate. However, if the court appoints a guardian for the express purpose of making health care treatment decisions, that guardian shall act as the patient's surrogate. If neither of these situations applies, the health care provider shall make reasonable efforts to contact the following individual or individuals in the indicated order of priority, who are available and willing to serve as the surrogate, who then have the authority to make health care decisions for the patient and who shall follow the patient's wishes if they are known:

1. The patient's spouse, unless the patient and spouse are legally separated.

2. An adult child of the patient. If the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonably available for consultation.

3. A parent of the patient.

4. If the patient is unmarried, the patient's domestic partner.

5. A brother or sister of the patient.

6. A close friend of the patient. For the purposes of this paragraph, "close friend" means an adult who has exhibited special care and concern for the patient, who is familiar with the patient's health care views and desires and who is willing and able to become involved in the patient's health care and to act in the patient's best interest.

B. If the health care provider cannot locate any of the people listed in subsection A of this section, the patient's attending physician may make health care treatment decisions for the patient after the physician consults with and obtains the recommendations of an institutional ethics committee. If this is not possible, the physician may make these decisions after consulting with a second physician who concurs with the physician's decision. For the purposes of this subsection, "institutional ethics committee" means a standing committee of a licensed health care institution appointed or elected to render advice concerning ethical issues involving medical treatment.

C. A person who makes a good faith medical decision pursuant to this section is immune from liability to the same extent and under the same conditions as prescribed in section 36-3205.

D. A surrogate may make decisions about mental health care treatment on behalf of a patient if the patient is found incapable. However, a surrogate who is not the patient's agent or guardian shall not make decisions to admit the patient to an inpatient psychiatric facility licensed by the department of health services, except as provided in subsection E of this section or section 14-5312.01, 14-5312.02 or 36-3281.

E. If the admitting officer for a mental health care provider has reasonable cause to believe after examination that the patient is incapable as defined in section 36-3281 and is likely to suffer serious physical harm or serious illness or to inflict serious physical harm on another person without immediate hospitalization, the patient may be admitted for inpatient treatment in an inpatient psychiatric facility based on informed consent given by any surrogate identified in subsection A of this section. The patient shall be discharged if a petition for court ordered evaluation or for temporary guardianship requesting authority for the guardian to consent to admission to an inpatient psychiatric facility has not been filed within forty-eight hours of admission or on the following court day if the forty-eight hours expires on a weekend or holiday. The discharge requirement prescribed in this section does not apply if the patient has given informed consent to voluntary treatment or if a mental health care provider is prohibited from discharging the patient under federal law.

Article 4 Prehospital Medical Care Directives

§ 36-3251 Prehospital medical care directives; form; effect; immunity; definitions

A. Notwithstanding any law or a health care directive to the contrary, a person may execute a prehospital medical care directive that, in the event of cardiac or respiratory arrest, directs the withholding of cardiopulmonary resuscitation by emergency medical system personnel, hospital emergency department personnel and, as provided in subsection L of this section, direct care staff persons. For the purposes of this article, "cardiopulmonary resuscitation" includes cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, defibrillation, administration of advanced cardiac life support drugs and related emergency medical procedures. Authorization for the withholding of cardiopulmonary resuscitation does not include the withholding of other medical interventions, such as intravenous fluids, oxygen or other therapies deemed necessary to provide comfort care or to alleviate pain.

B. A prehospital medical care directive shall be printed on an orange background and may be used in either letter or wallet size. The directive shall be in the following form:

Prehospital Medical Care Directive

(side one)

In the event of cardiac or respiratory arrest, I refuse any resuscitation measures, including cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, defibrillation, administration of advanced cardiac life support drugs and related emergency medical procedures.

Patient: ______________________ date: ________________

(Signature or mark)

Attach recent photograph here or provide all of the following information below:

Date of birth ______ sex ____

Eye color ________ hair color ______ race ______

Hospice program (if any) _____________________________

Name and telephone number of patient's physician ______________________________________________________

(side two)

I have explained this form and its consequences to the signer and obtained assurance that the signer understands that death may result from any refused care listed above.

________________________________ date __________

(Licensed health care provider)

I was present when this was signed (or marked). The patient then appeared to be of sound mind and free from duress.

________________________________ date ___________

(Witness)

C. A person who has a valid prehospital medical care directive pursuant to this section may wear an identifying bracelet on either the wrist or the ankle. The bracelet shall be substantially similar to identification bracelets worn in hospitals. The bracelet shall be on an orange background and state the following in bold type:

Do Not Resuscitate

Patient: _________________________________________

Patient's physician: _____________________________

D. If the person has designated an agent to make health care decisions under section 36-3221 or has been appointed a guardian for health care decisions pursuant to title 14, that agent or guardian shall sign if the person is no longer competent to do so.

E. A prehospital medical care directive is effective until it is revoked or superseded by a new document.

F. Emergency medical system personnel, hospital emergency department personnel and direct care staff persons who make a good faith effort to identify the patient and who rely on an apparently genuine directive or a photocopy of a directive on orange paper are immune from liability to the same extent and under the same conditions as prescribed in section 36-3205. If a person has any doubt as to the validity of a directive or the medical situation, that person shall proceed with resuscitative efforts as otherwise required by law. Emergency medical system personnel and direct care staff persons are not required to accept or interpret medical care directives that do not meet the requirements of this section.

G. In the absence of a physician, a person without vital signs who is not resuscitated pursuant to a prehospital medical care directive may be pronounced dead by any peace officer of this state, a professional nurse licensed pursuant to title 32, chapter 15 or an emergency medical technician certified pursuant to this title.

H. This section does not apply to situations involving mass casualties or to medical emergencies involving children and adults with disabilities in public or private schools that are not licensed health care institutions as defined in section 36-401.

I. After being notified of a death by emergency medical system personnel, the person's physician or the county medical examiner is then responsible for signing the death certificate.

J. The office of emergency medical services in the department of health services shall print prehospital medical care directive forms and make them available to the public. The department may charge a fee that covers the department's costs to prepare the form. The department and its employees are immune from civil liability for issuing prehospital medical care directive forms that meet the requirements of this section. A person may use a form that is not prepared by the department of health services if that form meets the requirements of this section. If an organization distributes a prehospital medical care directive form that meets the requirements of this section, that organization and its employees are also immune from civil liability.

K. Any prehospital medical care directive prepared before April 24, 1994 is valid if it was valid at the time it was prepared.

L. A direct care staff person may comply with a prehospital medical care directive pursuant to this section if the physician of the person who has the valid prehospital medical care directive has ordered a hospice plan of care.

M. The department of economic security or the Arizona health care cost containment system administration may prescribe guidance for training and education of direct care staff persons regarding the requirements of this section.

N. For the purposes of this section:

1. "Direct care staff person" means a person who is employed or contracted to provide direct services pursuant to title 36, chapter 5.1.

2. "Emergency medical system personnel" includes emergency medical technicians at all levels who are certified by the department of health services and medical personnel who are licensed by this state and who are operating outside of an acute care hospital under the direction of an emergency medical system agency recognized by the department of health services.

Article 5 Living Will

§ 36-3261 Living will; verification; liability

A. An adult may prepare a written statement known as a living will to control the health care treatment decisions that can be made on that person's behalf. The person may use the living will as part of or instead of a health care power of attorney or to disqualify a surrogate.

B. If the living will is not part of a health care power of attorney, the person shall verify his living will in the same manner as prescribed by section 36-3221.

C. A health care provider who makes good faith health care decisions based on the provisions of an apparently genuine living will is immune from criminal and civil liability for those decisions to the same extent and under the same conditions as prescribed in section 36-3205.

§ 36-3262 Sample living will

Any writing that meets the requirements of this article may be used to create a living will. A person may write and use a living will without writing a health care power of attorney or may attach a living will to the person's health care power of attorney. If a person has a health care power of attorney, the agent must make health care decisions that are consistent with the person's known desires and that are medically reasonable and appropriate. A person can, but is not required to, state the person's desires in a living will. The following form is offered as a sample only and does not prevent a person from using other language or another form:

Living Will

(Some general statements concerning your health care options are outlined below. If you agree with one of the statements, you should initial that statement. Read all of these statements carefully before you initial your selection. You can also write your own statement concerning life-sustaining treatment and other matters relating to your health care. You may initial any combination of paragraphs 1, 2, 3 and 4 but if you initial paragraph 5 the others should not be initialed.)

_____ 1. If I have a terminal condition I do not want my life to be prolonged and I do not want life-sustaining treatment, beyond comfort care, that would serve only to artificially delay the moment of my death.

_____ 2. If I am in a terminal condition or an irreversible coma or a persistent vegetative state that my doctors reasonably feel to be irreversible or incurable, I do want the medical treatment necessary to provide care that would keep me comfortable, but I do not want the following:

_____ (a) Cardiopulmonary resuscitation, for example, the use of drugs, electric shock and artificial breathing.

_____ (b) Artificially administered food and fluids.

_____ (c) To be taken to a hospital if at all avoidable.

_____ 3. Notwithstanding my other directions, if I am known to be pregnant, I do not want life-sustaining treatment withheld or withdrawn if it is possible that the embryo/fetus will develop to the point of live birth with the continued application of life-sustaining treatment.

_____ 4. Notwithstanding my other directions I do want the use of all medical care necessary to treat my condition until my doctors reasonably conclude that my condition is terminal or is irreversible and incurable or I am in a persistent vegetative state.

_____ 5. I want my life to be prolonged to the greatest extent possible.

Other or Additional Statements of Desires

I have _____ I have not _____ attached additional special provisions or limitations to this document to be honored in the absence of my being able to give health care directions.

Article 6 Mental Health Care Power of Attorney

§ 36-3281 Mental health care power of attorney; scope; definition

A. An adult, known as the principal, pursuant to section 36-3282 may designate another adult or adults, known as the agent, to act as an agent and to make mental health care decisions on that person's behalf. The principal may also designate an alternate adult or adults to act as agent if the original designated agent or agents are unwilling or unable to act.

B. An agent under section 36-3283 may make decisions about mental health treatment on behalf of the principal if the principal is found incapable. If an adult does not have a mental health care power of attorney pursuant to this section, an agent with a health care power of attorney under section 36-3221 may make decisions about mental health treatment on behalf of the principal if the principal is found incapable, except as provided in section 36-3283, subsection F. These decisions shall be consistent with any wishes the principal has expressed in the mental health care directive, mental health care power of attorney, health care power of attorney or other advance directive.

C. An agent shall not be a person who is directly involved with the provision of health care to the principal at the time the mental health care power of attorney is executed.

D. For the purposes of this section, "incapable" means that in the opinion of a physician who is licensed pursuant to title 32, chapter 13 or 17 and who is a specialist in neurology or psychiatry or a psychologist who is licensed pursuant to title 32, chapter 19.1, a person lacks the ability to give informed consent as defined in section 36-501.

§ 36-3282 Execution requirements

A. To be valid, a mental health care power of attorney shall:

1. Be executed by a principal who is not incapable, as defined in section 36-3281.

2. Be in writing.

3. Contain language that clearly indicates that the principal intends to create a mental health care power of attorney.

4. Except as provided pursuant to subsection C of this section, be dated and signed or marked by the principal.

5. Be notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present when the principal dated and signed or marked the mental health care power of attorney and that the principal appeared to be of sound mind and free from duress, fraud or undue influence at that time.

B. If a mental health care power of attorney expressly provides that the agent can admit the principal to an inpatient psychiatric facility licensed by the department of health services, each paragraph that grants this authority must be separately initialed by the principal at the time the mental health care power of attorney is signed and witnessed.

C. If the principal is physically unable to sign or mark a mental health care power of attorney, the notary and each witness shall verify on the document that the principal indicated to the notary or witness that the mental health care power of attorney expressed the principal's wishes and that the principal intended to adopt the mental health care power of attorney at that time.

D. A notary or witness shall not be any of the following:

1. A person designated to make medical decisions on the principal's behalf.

2. A professional care provider directly involved with the provision of care to the principal at the time the mental health care power of attorney is executed.

E. If a mental health care power of attorney is witnessed by only one person, that person shall not be either:

1. Related to the principal by blood, marriage or adoption.

2. Entitled to any part of the principal's estate by will or by operation of law at the time that the power of attorney is executed.

F. A mental health care power of attorney may be used as part of or independent of a health care power of attorney as defined in section 36-3201.

§ 36-3283 Powers and duties of an agent

A. An agent may make mental health care decisions for the principal while the principal is incapable, as defined in section 36-3281.

B. Except as limited by subsection F of this section, an agent's authority to make mental health care decisions is limited only by the express language of the mental health care power of attorney or by a court order pursuant to section 36-3206.

C. The appointment of a person to act as an agent is effective until that authority is revoked by the principal or by a court order.

D. An agent has the same right as the principal to receive information and to review the principal's medical records regarding proposed mental health treatment and to receive, review and consent to the disclosure of medical records relating to that treatment.

E. An agent shall act consistently with the wishes of the principal as expressed in the mental health care power of attorney. Except as limited by subsection F of this section, if the principal's wishes are not expressed in the mental health care power of attorney and are not otherwise known by the agent, the agent shall act in accordance with what the agent in good faith believes to be in the principal's best interests.

F. An agent may consent to admit the principal to an inpatient psychiatric facility licensed by the department of health services if this authority is expressly stated in the mental health care power of attorney or health care power of attorney under section 36-3221.

G. An agent is not subject to criminal or civil liability for decisions made in good faith pursuant to subsection E of this section.

§ 36-3284 Operation of mental health care power of attorney; admission for evaluation and treatment by agent; duties of physician or mental health care provider

A. A mental health care power of attorney is effective when it is executed and remains in effect until it is revoked by the principal pursuant to section 36-3285 or by court order.

B. Notwithstanding the procedures and requirements prescribed in chapter 5, articles 4 and 5 of this title relating to involuntary court-ordered evaluation or treatment, if the mental health care power of attorney specifically authorizes the agent to admit the principal to an inpatient psychiatric facility and the agent has reasonable cause to believe that the principal is in need of an evaluation or treatment, the agent may apply for admission of the principal for evaluation or treatment at an inpatient psychiatric facility. The agent must present the facility with a copy of the power of attorney that specifically authorizes the agent to admit the principal to an inpatient psychiatric facility. If admission is requested by the agent, the facility to which the agent applies may admit the principal if before admission a physician who is licensed pursuant to title 32, chapter 13 or 17 does all of the following:

1. Conducts an investigation that carefully probes the principal's psychiatric and psychological history, diagnosis and treatment needs.

2. Conducts a thorough interview with the principal and the agent.

3. Obtains the agent's informed consent, as defined in section 36-501.

4. Makes a written determination that the principal needs an evaluation or will benefit from inpatient care and treatment of a mental disorder or other personality disorder or emotional condition and that the evaluation or treatment cannot be accomplished in a less restrictive setting.

5. Documents in the principal's medical chart a summary of the doctor's findings and recommendations for treatment.

C. If a patient admitted to or being treated in an inpatient psychiatric facility under the authority of an agent pursuant to a mental health care power of attorney manifests the desire to disqualify an agent or to revoke a mental health care power of attorney and requests in writing to be discharged from the facility, the facility shall either discharge the patient or initiate proceedings for court ordered evaluation or treatment pursuant to chapter 5 of this title:

1. Within forty-eight hours after the facility receives this request, excluding weekends and legal holidays.

2. On the following court day if the forty-eight-hour period expires on a weekend or holiday.

D. The discharge requirement prescribed in subsection C of this section does not apply if the facility is prohibited from discharging the person under federal law or if the principal has been determined to be incapable as defined in section 36-3281, the treating physician believes that further inpatient treatment is necessary or advisable and the agent under the power of attorney has consented to the continued treatment.

E. After admission, if the patient refuses treatment or requests discharge and the treating physician believes that further inpatient treatment is necessary or advisable, the facility may rely on the consent of the agent for treatment, release and discharge decisions pursuant to the agent's authority under the power of attorney.

F. The inpatient psychiatric facility licensed by the department of health services shall conduct a review of the principal's condition and need for admission into the facility and assess the appropriateness of the principal's placement at least once every thirty days. The agent may participate in each review. If possible the agent shall participate in person.

§ 36-3285 Revocation; disqualification of agent

A. Except during times when the principal has been found to be incapable as defined in section 36-3281, a principal under a mental health care power of attorney may disqualify an agent or revoke all or any portion of the power of attorney.

B. Unless a principal is incapable as defined in section 36-3281, a principal may revoke all or any part of the principal's mental health care power of attorney by doing any of the following:

1. Making a written revocation of the mental health care power of attorney or a written statement to disqualify an agent.

2. Orally notifying the agent or a mental health care provider.

3. Making a new mental health care power of attorney.

4. Any other act that demonstrates a specific intent to revoke a mental health care power of attorney or disqualify an agent.

§ 36-3286 Sample mental health care power of attorney

A person may use any writing that meets the requirements of sections 36-3281 and 36-3282 to create a mental health care power of attorney. The following form is offered as a sample only and does not prevent a person from using other language or another form:

Mental Health Care Power of Attorney

I, ________________, being an adult of sound mind, voluntarily make this declaration for mental treatment. I want this declaration to be followed if I am incapable, as defined in section 36-3281, Arizona Revised Statutes. I designate _________________ as my agent for all matters relating to my mental health care including, without limitation, full power to give or refuse consent to all medical care related to my mental health condition. If my agent is unable or unwilling to serve or continue to serve, I appoint ____________________ as my agent. I want my agent to make decisions for my mental health care treatment that are consistent with my wishes as expressed in this document or, if not specifically expressed, as are otherwise known to my agent.

If my wishes are unknown to my agent, I want my agent to make decisions regarding my mental health care that are consistent with what my agent in good faith believes to be in my best interests. My agent is also authorized to receive information regarding proposed mental health treatment and to receive, review and consent to disclosure of any medical records relating to that treatment.

This declaration allows me to state my wishes regarding mental health care treatment including medications, admission to and retention in a health care facility for mental health treatment and outpatient services.

This mental health care power of attorney or any portion of it may not be revoked and any designated agent may not be disqualified by me during times that I am found to be unable to give informed consent. However, at all other times I retain the right to revoke all or any portion of this mental health care power of attorney or to disqualify any agent designated by me in this document.

The following are my wishes regarding my mental health care treatment if I become incapable, as defined in section 36-3281, Arizona Revised Statutes:

I consent to the following mental health treatments:

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By initialing here, I consent to giving my agent the power to admit me to an inpatient or partial psychiatric hospitalization program, please initial here: ____ (initial if you consent)

I do not consent to the following mental health treatments:

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Additional information about my mental health care treatment needs (consider including mental or physical health history, dietary requirements, religious concerns, people to notify and any other matters that you feel are important):

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This mental health care power of attorney is made pursuant to title 36, chapter 32, article 6, Arizona Revised Statutes, and continues in effect for all who may rely on it except to those I have given notice of its revocation pursuant to section 36-3285, Arizona Revised Statutes.

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(signature of principal)

Address of agent________________________________________

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Telephone number of agent_______________________________

Address of backup agent________________________________

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Telephone number of backup agent_______________________

Affirmation of witnesses:

I affirm that the person signing this mental health care power of attorney:

1. Is personally known to me.

2. Signed or acknowledged by his or her signature on this declaration in my presence.

3. Appears to be of sound mind and not under duress, fraud or undue influence.

4. Is not related to me by blood, marriage or adoption.

5. Is not a person for whom I directly provide care as a professional.

6. Has not appointed me as an agent to make medical decisions on his or her behalf.

Witnessed by:

__________________________________ (signature and date)

__________________________________ (signature and date)

Acceptance of appointment as agent: (optional)

I accept this appointment and agree to serve as agent to make mental health treatment decisions for the principal. I understand that I must act consistently with the wishes of the person I represent, as expressed in this mental health care power of attorney, or if not expressed, as otherwise known by me. If I do not know the principal's wishes, I have a duty to act in what I in good faith believe to be that person's best interests. I understand that this document gives me the authority to make decisions about mental health treatment only while that person has been determined to be incapable as that term is defined in section 36-3281, Arizona Revised Statutes.

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(signature of agent)

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(printed name of agent)

§ 36-3287 Surrogate; mental health care power of attorney

The provisions of this chapter that relate to the powers and duties of surrogates apply to a mental health care power of attorney.

Article 7 Health Care Directives Registry

§ 36-3291 Health care directives registry; exemption

A. The department of health services shall designate a qualifying health information exchange organization to operate a health care directives registry.

B. Subject to the availability of monies, the qualifying health information exchange organization shall establish and maintain a health care directives registry.

C. Chapter 38 of this title does not apply to the health care directives registry or the qualifying health information exchange organization's operation of the registry.

§ 36-3292 Filing requirements

A. A person may submit to the health care directives registry, in a manner prescribed by the qualifying health information exchange organization, health care directives, including prehospital medical care directives and any amendments to or revocations of these documents.

B. The qualifying health information exchange organization shall establish a process for authenticating the identity of the person who submits a document to the health care directives registry.

C. Documents submitted pursuant to this section must be notarized or witnessed as prescribed by this chapter.

§ 36-3292.01 Transmission of records from a health information exchange organization to the registry

Notwithstanding any other provision of this article, the qualifying health information exchange organization may establish a process for transmitting to the health care directives registry documents described in section 36-3292 from a health information organization as defined in section 36-3801.

§ 36-3293 Effect of nonregistration or revocation

A. Failure to register a document with the qualifying health information exchange organization pursuant to this article does not affect the validity of a health care directive.

B. Failure to notify the qualifying health information exchange organization of the revocation of a document filed pursuant to this article does not affect the validity of a revocation that otherwise meets the requirements for a revocation pursuant to this chapter.

§ 36-3294 Registration

A. The qualifying health information exchange organization shall establish a process to allow persons to submit documents described in section 36-3292 to the health care directives registry. The qualifying health information exchange organization shall adopt industry standard safeguards to ensure the security, privacy and integrity of the documents submitted to and maintained in the health care directives registry.

B. The qualifying health information exchange organization is not required to review a document to ensure that it complies with the particular statutory requirements applicable to the document.

C. The qualifying health information exchange organization shall provide a person who submitted the document to the health care directives registry with a viewable record of the information entered into the registry and allow the person to submit corrected information.

D. The qualifying health information exchange organization shall activate the entry of a submitted document into the health care directives registry only after receiving confirmation that the information submitted is correct.

E. The qualifying health information exchange organization shall establish a process to allow persons who submit documents to the health care directives registry to review, retrieve, revoke and replace the documents.

F. The qualifying health information exchange organization shall establish a process for removing or distinguishing documents that have been revoked or replaced by more recent documents.

G. The entry of a document pursuant to this article does not:

1. Affect the validity of the document.

2. Relate to the accuracy of information contained in the document.

3. Create a presumption regarding the validity of the document or the accuracy of information contained in the document.

§ 36-3295 Registry information; confidentiality; health care provider access; use and transfer of information; definition

A. Information maintained by the qualifying health information exchange organization pursuant to this article is confidential and shall not be disclosed except as allowed by state or federal law.

B. The person who submits a document described in section 36-3292, the person who is the subject of the document and the surrogate of the person who is the subject of the document may access the document in the health care directives registry in a manner prescribed by the qualifying health information exchange organization.

C. Notwithstanding subsection A of this section, a health care provider may access the health care directives registry and receive a patient's health care directive documents for the provision of health care services.

D. The qualifying health information exchange organization shall use information contained in the registry only for purposes prescribed in this article, except that the qualifying health information exchange organization may use, disclose and make accessible the information contained in the registry through the health information organization as authorized by section 36-3805, subsection A.

E. At the request of the person who submitted a document described in section 36-3292, the qualifying health information exchange organization may transmit the information received regarding the document to the registry system of another jurisdiction.

F. For the purposes of this section, "health care provider" includes an emergency medical service provider and emergency service technician providing emergency medical services as defined in section 36-2201 and the organ procurement organization that maintains the donor registry established pursuant to section 36-858.

§ 36-3296 Liability; limitation

A. Except for acts of gross negligence, wilful misconduct or intentional wrongdoing, the qualifying health information exchange organization and its contractors are not subject to civil liability for any claims or demands arising out of the administration or operation of, or the provision of access to information stored in, the registry established pursuant to this article.

B. This article does not require a health care provider to request from the registry information about whether a patient has executed a health care directive. A health care provider who makes good faith health care decisions in reliance on the provisions of an apparently genuine health care directive received from the registry is immune from criminal and civil liability to the same extent and under the same conditions as prescribed in sections 36-3205 and 36-3251, except that the requirement that a prehospital medical care directive be on an orange form does not apply to a health care provider who relies on a prehospital medical care directive displayed through the registry.

C. This article does not affect the duty of a health care provider to provide information to a patient regarding health care directives pursuant to federal law.

Chapter 33 Waivers

Article 1 Requirements

§ 36-3301 Definitions

In this chapter, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Department" means the department of economic security.

§ 36-3302 Waiver proposal; legislative approval required; notification

A. The administration may not submit to the centers for medicare and medicaid services, or the successor agency, a new amendment proposal for a demonstration waiver under section 1115 of the social security act, or include any new proposed provision in a section 1115 waiver extension, unless the proposed amendment or provision has been authorized by the legislature in the form of a statute, if the waiver does any of the following:

1. Expands eligibility for title XIX or title XXI coverage to populations not authorized by chapter 29 of this title as of January 1, 2025.

2. Adds new categories of covered services or benefits not authorized by chapter 29 of this title as of January 1, 2025.

3. Will, as a result of the changes being proposed, lead to an annual increase in utilization greater than ten percent for specific services affected by the proposed amendment or provision above what the utilization would have been without the proposed amendment or provision.

B. Before submitting a new amendment proposal for a demonstration waiver under section 1115 of the social security act or including a new proposed provision in a waiver extension, the administration shall determine whether the proposed changes are subject to subsection A of this section. Any proposed changes that are subject to subsection A of this section shall be reviewed by the health and human services committees of reference, or their successor committees of reference, and the committees of reference shall forward their recommendation to the senate and house of representatives on whether to approve the proposed changes.

C. If the administration determines the proposed changes are not subject to subsection A of this section, the administration shall monitor changes in annual utilization specific to the services impacted by the new waiver changes for three years after the implementation of the changes to determine whether the changes led to an annual increase in utilization greater than ten percent for the specific services affected by the waiver change above what the utilization would have been without the waiver change.

D. If the monitoring required by subsection C of this section demonstrates that the changes led to an annual increase in utilization greater than ten percent for the specific services affected by the waiver change above what the utilization would have been without the waiver change, the administration shall notify the president of the senate, the speaker of the house of representatives and the chairperson of the joint legislative budget committee and, if the legislature has not enacted a statute authorizing the specific waiver change that led to the increased utilization within one year after the administration's notification pursuant to this subsection, the administration shall submit a request to the centers for medicare and medicaid services, or the successor agency, to terminate the new waiver changes that were not authorized by the legislature.

E. The administration shall notify the joint legislative budget committee in writing of any section 1115 waiver application or amendment submitted, regardless of whether legislative approval is required pursuant to subsection A of this section, at the time the application or amendment is posted for public comment.

Article 2 Waivers

§ 36-3311 Parents as paid caregivers program; waiver amendment; implementation

Beginning from and after June 30, 2025, pursuant to the parents as paid caregivers program amendment approval by the centers for medicare and medicaid services to this state's section 1115(a) demonstration waiver dated February 16, 2024, the administration and the department shall implement the forty hours of care services per week per child limit.

§ 36-3312 Parents as paid caregivers program; residency requirement

Subject to the approval by the centers for medicare and medicaid services, a parent must be a resident of this state for at least six months to be eligible to provide care under the parents as paid caregivers program.

Chapter 34 Behavioral Health Services

Article 1 General Provisions

§ 36-3401 Definitions

In this chapter, unless the context otherwise requires:

1. "Administration" means the Arizona health care cost containment system administration.

2. "Advisory council" means the Arizona state advisory council on the seriously mentally ill.

3. "Children" means persons who are under the age of nineteen years or persons who are under the age of twenty-two years and enrolled in an educational facility.

4. "Clean claim" means a claim that can be processed without obtaining additional information from the service provider or from a third party. Clean claim does not include claims under investigation for fraud or abuse or claims under review for medical necessity.

5. "Director" means the director of the administration.

6. "Regional behavioral health authority" means an organization under contract with the administration to coordinate the delivery of mental health services in a geographically specific service area of the state for eligible persons.

7. "Service provider" means an organization or mental health professional that meets the criteria established by the administration and has a contract with the administration or a regional behavioral health authority.

§ 36-3403 Powers and duties of the director; study; capitation rates

A. In addition to the powers and duties prescribed in chapter 29 of this title, in carrying out the duties of this chapter, the director may:

1. Employ professional, secretarial and clerical staff as are determined necessary by the director to carry out the functions and duties of the administration, subject to legislative appropriation.

2. Contract for the services of consultants and other persons that are reasonably necessary to enable the administration to carry out its functions and duties, subject to legislative appropriation.

3. Contract and incur obligations that are reasonably necessary within the general scope of the administration.

4. Adopt rules that are necessary to carry out the requirements of the administration.

5. Contract or enter into intergovernmental agreements with other public and private nonprofit agencies and entities.

6. Use monies, facilities or services to provide matching contributions under federal or other programs that further the objectives and programs of the administration.

7. Accept gifts, grants, matching monies or direct payments from public or private agencies or private persons and enterprises for the conduct of programs that are consistent with the general purposes and objectives of the administration.

B. The director shall administer:

1. Unified mental health programs, excluding the functions of the state hospital but including community mental health.

2. Addictive behavior programs to include alcohol and drug abuse.

C. Notwithstanding any other law, the director may waive or reduce the requirements for local match.

D. Except as otherwise required by this chapter, the director shall carry out the duties of this chapter subject to and consistent with chapter 29 of this title.

E. The administration shall contract with an independent consulting firm for an annual study of the adequacy and appropriateness of title XIX reimbursement rates to providers of behavioral health services. The administration may require and the regional behavioral health authorities and service providers shall provide to the administration financial data in the format prescribed by the administration to assist in the study. A complete study of reimbursement rates shall be completed at least once every five years. The administration shall provide the report to the joint legislative budget committee on or before October 1 of each year. If results of the study are not completely incorporated into the capitation rate, the administration shall provide a report to the joint legislative budget committee within thirty days of setting the final capitation rate, including reasons for differences between the rate and the study.

F. Capitation rate adjustments shall be limited to utilization of existing services and inflation unless policy changes, including creation or expansion of programs, have been approved by the legislature or are specifically required by federal law or court mandate.

§ 36-3404 Administration budget for behavioral health; funds

A. The administration shall present a budget request that includes all information on the potential availability of other monies, including federal monies, that may be used in the following fiscal year to fund behavioral health services other than with respect to the operation of the Arizona state hospital.

B. The budget request presented pursuant to subsection A of this section shall be divided as follows:

1. A proposed budget for the administration of behavioral health services.

2. A proposed budget for services for each behavioral health program.

C. The director shall establish funds for each behavioral health program. Monies appropriated to the administration for these programs, fees generated by the provision of these programs and grants and gifts to the administration shall be maintained in the appropriate fund to pay program and administrative costs. The administrative costs of each program shall be separately identified in the accounting records of the administration.

§ 36-3405 Annual report; reports

A. On or before January 1 of each year, the director shall submit a financial and programmatic report for the preceding fiscal year to the governor, the speaker of the house of representatives and the president of the senate.

B. The report required pursuant to subsection A of this section shall include revenues and expenditures for behavioral health programs and total revenues and expenditures, including specific identification of administrative costs for each behavioral health program by the following categories:

1. The seriously mentally ill.

2. Alcohol and drug abuse.

3. Children with severe emotional disabilities.

4. Domestic violence.

C. The report required pursuant to subsection A of this section shall include the number of clients served by each behavioral health service.

D. The director shall provide a monthly report to the governor, the speaker of the house of representatives and the president of the senate that shall, by regional behavioral health authority, separately report title XIX and nontitle XIX categories and shall include for each category the number of persons served, the units of service and the amount of funding provided for client services and the amount provided for regional behavioral health authority administration and case management expenses.

§ 36-3406 Arizona state advisory council on the seriously mentally ill; membership; compensation; duties

A. The Arizona state advisory council on the seriously mentally ill is established.

B. The advisory council shall consist of the director or the director's designee and the following nine members appointed by the governor:

1. One member representing an advocacy group for the seriously mentally ill.

2. One service provider.

3. One member representing a behavioral health contract agency in an urban area.

4. One member representing a behavioral health contract agency in a rural area.

5. One member of a county health department specializing in the delivery of services to the seriously mentally ill.

6. One health care professional who works with the seriously mentally ill and who is not associated with a contract agency providing services.

7. Three family members of persons who are seriously mentally ill.

C. The director or the director's designee shall serve as chairman.

D. The advisory council shall meet at least every three months.

E. Members of the advisory council are not entitled to compensation but members appointed are entitled to reimbursement of expenses pursuant to title 38, chapter 4, article 2.

F. The administration shall provide necessary staff services to the advisory council.

G. The advisory council shall advise the administration on matters relating to the seriously mentally ill.

H. Appointed members of the advisory council shall serve staggered three-year terms.

§ 36-3407 Services; contract

The administration shall contract for the provision of the following services relating to the seriously mentally ill:

1. Community education to increase public awareness of the needs of persons experiencing behavioral health problems.

2. Coordinated screening and intake.

3. A coordinated service delivery system.

4. Coordinated case management and individualized treatment planning for each client.

5. Ongoing family participation in the planning for and selection of continuum of care services.

6. A comprehensive continuum of care services, as appropriate for each client, that includes the following:

(a) Home-based services.

(b) Prevention and early intervention.

(c) Psychiatric evaluation and consultation.

(d) Ancillary support services.

(e) Crisis intervention, including short-term and mobile crisis stabilization.

(f) Outpatient counseling.

(g) Residential treatment services.

(h) Case management.

(i) Partial care services.

(j) Secure residential treatment services.

(k) Residential treatment services for clients discharged from the Arizona state hospital.

(l) Hospitalization services.

(m) Psychotropic medication services.

(n) Independent living services.

(o) Detoxification services.

(p) Respite care.

(q) Vocational rehabilitation.

(r) Transportation.

(s) Socialization and recreation.

§ 36-3408 Eligibility for behavioral health service system; screening process; required information

A. Any person or the person's parent or legal guardian who requests behavioral health services pursuant to this chapter shall comply with a preliminary financial screening and eligibility process developed by the Arizona health care cost containment system administration and administered at the initial intake level. A person who receives behavioral health services pursuant to this chapter and who has not been determined eligible for title XVIII and for the medicare part D prescription drug benefit, title XIX or title XXI services shall comply annually with the eligibility determination process. If the results indicate that the person may be eligible for title XVIII and for the medicare part D prescription drug benefit, title XIX or title XXI, in order to continue to receive services pursuant to this chapter, the applicant shall submit a completed application within ten working days to the social security administration, the department of economic security or the Arizona health care cost containment system administration, which shall determine the applicant's eligibility pursuant to title XVIII and for the medicare part D prescription drug benefit, section 36-2901, paragraph 6, subdivision (a), section 36-2931, paragraph 5 or section 36-2981, paragraph 6 for health and medical or long-term care services pursuant to chapter 29 of this title. The applicant shall cooperate fully with the eligibility determination process. If the person is in need of emergency services provided pursuant to this chapter, the person may begin to receive these services immediately provided that within five days from the date of service a financial screening is initiated.

B. Applicants who refuse to cooperate in the financial screening and eligibility process are not eligible for services pursuant to this chapter. A form explaining loss of benefits due to refusal to cooperate shall be signed by the applicant. Refusal to cooperate shall not be construed to mean the applicant's inability to obtain documentation required for eligibility determination. The department of economic security shall promptly inform the administration of the applications that are denied based on an applicant's failure to cooperate with the eligibility determination process and, on request, of applicants who do not submit an application as required by this section.

C. The department of economic security, in coordination with the administration, shall provide on-site eligibility determinations at appropriate program locations subject to legislative appropriation.

D. This section only applies to persons who receive services that are provided pursuant to this section and that are paid for in whole or in part with state monies.

E. A person who requests treatment services under this chapter shall provide personally identifying information required by the administration.

F. Except as otherwise provided by law, this section and cooperation with the eligibility determination process do not entitle any person to any particular services that are subject to legislative appropriation.

§ 36-3409 Fee requirements; fee schedules

A. Clients who are eligible for nontitle XIX services from the administration shall be required to pay fees for services.

B. The administration shall establish a schedule for fees charged for services provided by public or private agencies receiving state monies pursuant to this article that includes a sliding fee schedule based on the ability of the client to pay for part or the total cost for services.

§ 36-3410 Regional behavioral health authorities; contracts; monthly summaries; inspection; copying fee; children's behavioral health and seriously mentally ill services

A. If the administration contracts with behavioral health contractors that would act as regional behavioral health authorities or directly with a service provider for behavioral health services, the administration and each behavioral health contractor or service provider shall prepare and make available monthly summary statements, in a format prescribed by the administration, that separately detail by title XIX and nontitle XIX and by service category and service type, as defined by contract with the administration, the number of clients served, the units of service provided and the state and federal monies distributed through the administration to each regional behavioral health authority or direct contract service provider and the amounts distributed by each regional behavioral health authority or direct contract service provider to its subcontractors. The director may require additional information in the monthly statement that the director determines to be critical for proper regulation and oversight of the regional behavioral health authority or the direct contract service provider.

B. For services provided directly by a regional behavioral health authority, the maximum reimbursement to that regional behavioral health authority shall be thirty percent above the Arizona health care cost containment system fee for service rate for the particular service rendered.

C. Except as provided in subsections D and E of this section, behavioral health contractors under contract with the administration to act as regional behavioral health authorities may perform only managed care functions. Regional behavioral health authorities and their subsidiaries shall not deliver behavioral health services directly to clients.

D. If a direct services behavioral health provider experiences contract performance failure, the regional behavioral health authority, after receiving approval from the administration, may provide direct care services for only as long as necessary to ensure delivery of uninterrupted care to clients and either:

1. Accomplish the orderly transition of those members to a new provider or other existing providers.

2. Until the provider in question reorganizes or otherwise corrects the contract performance failure.

E. Subsection C of this section does not apply to a regional behavioral health authority operated by a federally recognized Indian tribe.

F. In the contracts specified under subsection A of this section, the administration may include a provision to charge, payable to the department of health services, for services provided at the state hospital. The charges are only for clients on whose behalf the contractor has been paid by the administration.

G. The summaries and the contracts on which they are based are open to public inspection. The administration and each regional behavioral health authority or direct contract service provider shall make the summaries available for inspection and copying at the office of each regional behavioral health authority or direct contract service provider and at the administration.

H. The administration and a regional behavioral health authority or direct contract service provider shall charge a copying fee that is not in excess of the actual cost of reproduction or the amount charged by the secretary of state pursuant to section 41-126, whichever is less.

I. Copying fees received by the administration, pursuant to subsection H of this section, shall be placed in the Arizona health care cost containment system fund established by section 36-2913.

J. Monies appropriated each fiscal year for children's behavioral health services shall be spent on services only as prescribed by the appropriation and may not be used for any other purpose.

K. Monies appropriated each fiscal year for seriously mentally ill services shall be spent on services only as prescribed by the appropriation and shall not be used for any other purpose.

§ 36-3411 Behavioral health services; timely reimbursement; penalties

A. The administration shall ensure that behavioral health service providers are reimbursed within ninety days after the service provider submits a clean claim to a regional behavioral health authority.

B. Any contract issued by or on behalf of the administration for the provision of behavioral health services shall include language outlining provisions for penalties for noncompliance with contract requirements.

C. If the regional behavioral health authority does not reimburse a provider as required by this section, the director shall subject the regional behavioral health authority to the penalty provisions prescribed in the contract, which shall not exceed the interest charges prescribed in section 44-1201. The director shall impose any financial penalties levied on the regional behavioral health authority through a reduction in the amount of monies payable to the regional behavioral health authority for administrative expenses.

D. The ninety-day deadline imposed by this section is suspended while a formal grievance regarding the legitimacy of a claim is pending.

E. The administration or a regional behavioral health authority shall not pay claims for covered services that are initially submitted more than nine months after the date of the services for which payment is claimed or that are submitted as clean claims more than twelve months after the date of service for which payment is claimed. A person who is dissatisfied with the denial of a claim by the administration or by the regional behavioral health authority has twelve months from the date of the service for which payment is claimed to institute a grievance against the administration or regional behavioral health authority.

F. For claims paid by the administration, either directly or through a third-party payor, the director may impose a penalty on a regional behavioral health authority or a service provider who submits a claim to the administration for payment more than one time after the same claim had been previously denied by the administration without having attempted to address the reason given for the denial. The penalty imposed by the director shall not exceed the average cost incurred by the administration for processing a claim and shall be levied on the regional behavioral health authority or service provider through reducing any future payment or payments until the amount of the penalty has been paid.

G. This section does not apply to services provided by a hospital pursuant to section 36-2903.01, subsection G, or section 36-2904, subsection H or I.

§ 36-3412 Contracts; regional behavioral health authorities

A. The director shall prepare and issue a request for proposals for behavioral health services consistent with sections 36-2906 and 36-2906.01.

B. Consistent with section 36-2903, subsection M, the administration's contracts with regional behavioral health authorities shall include terms as necessary in the judgment of the director:

1. To ensure adequate performance and compliance with all applicable federal laws by the regional behavioral health authorities.

2. For the maintenance of deposits, performance bonds, financial reserves or other financial security.

3. For the withholding or forfeiture of payments to be made to a regional behavioral health authority by the administration due to the authority's failure to comply with a provision of the authority's contract with the administration or with adopted rules.

4. Authorizing the administration to operate a regional behavioral health authority directly.

C. If there is an insufficient number of qualified bids for prepaid capitated behavioral health services within a geographic service area described in a request for proposals, the director may employ any of the options authorized by section 36-2904, subsection A.

D. During any period in which services are needed and no contract exists, the director may employ any of the options authorized by section 36-2904, subsection B.

E. If there is an insufficient number of, or an inadequate member capacity in, contracts awarded to contractors, the director, in order to deliver covered services to members enrolled or expected to be enrolled in the system within a county, may negotiate and award without a bid a contract pursuant to section 36-2904, subsection J.

F. To the extent that services are furnished pursuant to this chapter, and unless otherwise required by this chapter, a regional behavioral health authority is not subject to title 20.

G. Regional behavioral health authorities are subject to section 36-2905.

§ 36-3413 Grievance and appeal process

A. The administration shall require all regional behavioral health authorities to establish and implement a grievance and appeal process for use by service providers and by individuals receiving and requesting services. The administration shall stipulate any required elements of the process in the request for proposal issued to solicit bids from entities that wish to become a regional behavioral health authority.

B. The process shall be as prescribed in title 41, chapter 6, article 10, subject to the exceptions in section 36-2903.01, subsection B, paragraph 4 and rules adopted by the director, for grievances and appeals filed by regional behavioral health authorities and by service providers and individuals receiving and requesting services that have already exhausted the regional behavioral health authority grievance and appeal process. In the case of individuals receiving behavioral health services by a service provider that has contracted directly with the administration instead of through a regional behavioral health authority, the administration's grievance and appeal process is considered the primary process.

§ 36-3415 Behavioral health expenditures; annual reports

A. The administration shall report annually to the joint legislative budget committee on each fiscal year's medicaid and nonmedicaid behavioral health expenditures, including behavioral health demographics that include client income, utilization and expenditures, medical necessity oversight practices, tracking of high-cost beneficiaries, mortality trends, placement trends, program integrity and access to services.

B. The administration shall report annually to the joint legislative budget committee and the chairpersons of the health and human services committees of the senate and the house of representatives, or their successor committees. The report shall be in a substantially comparable format as the fiscal year 2014-2015 annual report of the department of health services submitted pursuant to this section and shall include the following information relating to individuals living with serious mental illness:

1. Annual mortality. The administration and the department of health services shall enter into a data sharing agreement for the purposes of vital records information necessary for the report under this subsection.

2. Complaints received from individuals with serious mental illness or their representatives regarding access to services by geographic service area and eligibility category.

3. Enrollment by geographic service area and eligibility category.

4. Demographics by geographic service area and eligibility category, including:

(a) Age.

(b) Gender.

(c) Race.

(d) Student status.

(e) Employment status.

(f) Percentage incarcerated in the preceding year.

(g) Percentage who are homeless.

(h) Type of disability, if the individual is deaf, hard of hearing or deafblind.

5. Per capita expenditures by geographic service area and eligibility category for the following:

(a) The number receiving services.

(b) Per capita expenditures.

(c) The number receiving services and per capita costs per service category.

6. Per capita expenditures by service type and eligibility category for the following:

(a) Support services.

(b) Inpatient services.

(c) Pharmacy.

(d) Rehabilitation services.

(e) Treatment services.

(f) Medical services.

(g) Crisis intervention services.

7. Average length of stay and readmission rates by eligibility category for the following settings:

(a) Level I.

(b) Level I subacute.

(c) Behavioral health residential facilities.

8. Beginning with information from state fiscal year 2022-2023 and annually thereafter, for individuals living with serious mental illness, by geographic service area:

(a) The number of individuals who are on a waitlist maintained by the administration or its contractors for a type of housing and the length of time that each individual was on the waitlist.

(b) The criteria and process that the administration or its contractors use to assign an individual to the housing waitlist or to move an individual up or down on the housing waitlist in prioritizing housing placement.

§ 36-3416 Contracting requirements; art therapy services; definition

A. The administration may contract for art therapy services, directly or through a contractor, only with an art therapist who holds an active national board certification in art therapy from the art therapy credentials board or who is a master's level graduate in art therapy under the active supervision of a board-certified art therapist to qualify for national registration or board certification with the art therapy credentials board.

B. Subsection A of this section does not require the administration to contract or reimburse for art therapy services.

C. For the purposes of this section, "art therapy" means the interactive use of psychotherapeutic principles and methods from an individual with master's level training in art media, the neurobiological implications of art-making and art-based assessment models to facilitate alternative modes of receptive and expressive communication and to define and implement therapeutic interventions to meet cognitive, developmental, behavioral and emotional needs.

Article 3 Comprehensive Behavioral Health Service System for Children

§ 36-3431 Comprehensive behavioral health service system for children; administration duties

A. The administration shall develop and implement a comprehensive behavioral health service system for children that includes the following:

1. Annual needs assessment and resource assessment studies.

2. Annual planning to develop policy issues, programs and services.

3. Community education to increase public awareness of the needs of children.

4. Centralized and coordinated screening and intake.

5. Coordinated case management.

6. A continuum of treatment services, which may include the following:

(a) Home-based services.

(b) Prevention and early intervention.

(c) Psychological evaluation and consultation.

(d) Ancillary support services.

(e) Crisis intervention.

(f) Outpatient counseling.

(g) Independent living services.

(h) Secure residential treatment services for seriously emotionally disturbed children.

(i) Residential treatment services for children's substance abuse.

(j) Psychiatric hospitalization services.

7. Evaluation that determines both cost effectiveness and client outcome.

B. Subject to legislative appropriation, the administration shall maintain the system identified in subsection A of this section.

C. For the purposes of developing needs assessments and resource assessments and for planning, the administration may consult and coordinate with any state agency established for that purpose.

§ 36-3432 System plan; annual report

The administration shall develop a plan for each fiscal year identifying the services, the estimated number of clients and an appropriations request for the purposes of systematic development and implementation of the comprehensive behavioral health service system for children. The plan shall be presented to the speaker of the house of representatives, the president of the senate and the governor on or before November 1 of each year.

§ 36-3433 Annual budget; request and allocation

A. The administration shall annually include in its budget request a separate appropriations request for the comprehensive behavioral health service system for children. The request shall be based on the annual plan and assessment. All behavioral health services provided for children by the administration shall be included in the request.

B. In preparing its budget request, the administration shall:

1. Identify that at least twenty percent of the total amount of appropriations requested be set aside for prevention and early identification programs.

2. Allocate up to five percent of the total appropriations requested for evaluation of the system.

3. Establish priorities for allocation of funding that include:

(a) Outpatient services.

(b) Secure residential services for seriously emotionally disturbed children.

(c) Residential services for children with substance abuse problems.

(d) Partial care and day treatment services.

(e) Emergency services, including crisis shelter, crisis stabilization and emergency inpatient hospitalization.

4. Consider the special needs of rural and urban areas of the state and the special needs of cultural and ethnic groups requiring services.

C. The administration may modify the priorities identified in subsection B of this section based on the results of the administration's needs assessments and resource assessments and shall include the justification for modifications in its annual plan required pursuant to section 36-3432. No monies allocated for evaluation under subsection B, paragraph 2 of this section shall be used for design and implementation of a management information system.

D. Subject to legislative appropriation, the administration shall establish as a goal an annual increase of total children's service system capacity by ten percent annually.

§ 36-3434 Current service delivery system; continuation

Nothing in this article relieves the state department of corrections, the department of economic security, the department of child safety, the department of education, the Arizona health care cost containment system, the department of health services or the Arizona supreme court from any current responsibility as prescribed by state or federal law.

§ 36-3435 Intergovernmental agreement; needs and resources assessment; funding and service delivery plan; definition

A. Pursuant to section 11-952, the administration, the department of child safety, the state department of corrections, the department of education and the supreme court shall enter into an intergovernmental agreement to develop a coordinated multiagency assessment of needs and resources and to develop a plan for interagency cooperation relating to funding and service delivery for children with behavioral health problems. The plan shall designate agency areas of responsibility for delivery of services. The needs and resources assessment study shall be completed within one year after the intergovernmental agreement is entered into. The funding and service delivery plan shall be completed within two years after the agreement is entered into.

B. The administration shall require each contract that is awarded, renewed or amended with any regional behavioral health authority, subcontractor or service provider to specify that every reasonable effort must be made to provide services outside of regular school hours for any child who is placed in out-of-home care pursuant to title 8, chapter 4, article 8, 9, 10, 11, 12, 13 or 14.

C. For the purposes of this section, "services" includes appointments and activities that are not related to school.

§ 36-3436 Children's behavioral health services fund; exemption; use of monies

A. The children's behavioral health services fund is established consisting of monies appropriated to the fund, any gifts or donations to the fund and interest earned on those monies. The director shall administer the fund.

B. Monies in the fund:

1. Are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

2. Are continuously appropriated.

C. The administration shall enter into an agreement with one or more contractors for children's behavioral health services using monies from the children's behavioral health services fund to pay for behavioral health services for children. To be eligible to receive behavioral health services paid by the fund, an individual must meet all of the following conditions:

1. Meet the legal age requirements for school admission under title 15 at the time the individual was admitted and be enrolled in school.

2. Be uninsured or underinsured.

3. Be referred for behavioral health services by an educational institution.

4. Have written parental consent to obtain the behavioral health services.

5. Receive the behavioral health services by a contracted licensed behavioral health provider.

6. Receive the behavioral health services on or off school grounds.

D. In addition to terms and conditions the director deems appropriate, the agreement between the administration and each contractor shall require that:

1. The monies allocated in the agreement not be used for persons who are eligible under title XIX or title XXI of the social security act. Preference shall be given to persons with lower household incomes.

2. The contractor coordinate benefits provided under this section with any third parties that are legally responsible for the cost of services.

3. The contractor make payments to providers based on contracts with providers or, in the absence of a contract, at the capped fee schedule established by the administration.

4. The contractor submit expenditure reports monthly in a format determined by the director for reimbursement of services provided under the agreement. The agreement may also provide for additional reimbursement for administering the agreement in an amount not to exceed eight percent of the expenditures for services.

5. The administration not be held financially responsible to the contractor for any costs incurred by the contractor in excess of the monies allocated in the agreement.

E. The administration may impose cost sharing requirements on a sliding fee scale for behavioral health services provided by contractors.

F. The administration shall act as payor of last resort for persons who are eligible pursuant to this section. On receipt of services under this section, a person is deemed to have assigned to the administration all rights to any type of medical benefit to which the person is entitled.

G. This section does not establish:

1. An entitlement for any person to receive any particular service.

2. A duty on the administration to provide services or spend monies in excess of the monies in the fund.

§ 36-3436.01 School-based behavioral health services; referrals; requirements; annual report

A. Before a school provides school-based referrals for behavioral health services to a contracted behavioral health services provider either pursuant to the children's behavioral health services fund established by section 36-3436 or for services provided through the Arizona health care cost containment system, the school district governing board or charter school governing body shall adopt policies relating to school-based referrals. These policies shall be vetted at a public meeting in which the school district governing board or charter school governing body considers any comments submitted by the public before the governing board or governing body adopts the policies. The school district governing board or charter school governing body shall post the polices adopted pursuant to this section on each applicable school website. The policies shall include the following:

1. A process to allow a parent to annually opt into the school-based referrals.

2. A process to conduct a survey of parents whose children were referred to and received behavioral health services pursuant to this section. The survey may be completed online. The survey shall include at least the following:

(a) Whether the parent opted into the program.

(b) Whether the parent was notified before the referral took place.

(c) Whether the behavioral health services referred were appropriate to meet the student's need.

(d) Whether the parent is satisfied with the choice of behavioral health services providers.

(e) Whether the parent intends to opt into a program again in the following school year.

3. A requirement that each school's website contain a list of behavioral health services providers with whom the school contracts.

B. At the end of each school year, each participating school district and charter school shall report to the administration the school survey results.

C. The administration shall compile a report based on the surveys received from participating school districts and charter schools as well as utilization data for behavioral health services received pursuant to the children's behavioral health services fund established by section 36-3436. On or before December 31 each year, the administration shall provide the report to the governor, the president of the senate and the speaker of the house of representatives and provide a copy of the report to the secretary of state. The report shall include at least all of the following information:

1. The number of students served.

2. The types of behavioral health services provided.

3. The costs of the behavior health services provided.

Chapter 35 Child and Maternal Deaths

Article 1 Child Fatalities and Maternal Mortality

§ 36-3501 State child fatality review team; membership; duties; reporting requirements

A. The state child fatality review team is established in the department of health services. The state team is composed of the head of the following entities or that person's designee:

1. Attorney general.

2. Office of women's and children's health in the department of health services.

3. Arizona health care cost containment system.

4. Division of developmental disabilities in the department of economic security.

5. Department of child safety.

6. Governor's office of youth, faith and family.

7. Administrative office of the courts' parent assistance program.

8. Department of juvenile corrections.

9. Arizona chapter of a national pediatric society.

B. The director of the department of health services shall appoint the following members to serve on the state team:

1. A medical examiner who is a forensic pathologist.

2. A maternal and child health specialist who is involved with the treatment of Native Americans.

3. A representative of a private nonprofit organization of tribal governments in this state.

4. A representative of the Navajo tribe.

5. A representative of the United States military family advocacy program.

6. A representative of a statewide prosecuting attorneys advisory council.

7. A representative of a statewide law enforcement officers advisory council who is experienced in child homicide investigations.

8. A representative of an association of county health officers.

9. A child advocate who is not employed by or an officer of this state or a political subdivision of this state.

10. A local child fatality review team member.

C. The state team shall:

1. Develop a child fatalities data collection system.

2. Provide training to cooperating agencies, individuals and local child fatality review teams on the use of the child fatalities data system.

3. Conduct an annual statistical report on the incidence and causes of child fatalities in this state during the past year and submit a copy of this report, including its recommendations for action, to the governor, the president of the senate and the speaker of the house of representatives on or before November 15 of each year. The report shall include available information regarding plans for or progress toward implementation of recommendations. Recommendations made to a state agency, board or commission shall require a written response indicating whether the agency is capable of implementing the recommendations within its existing authority and resources, including any applicable implementation plan, to the governor, the president of the senate, the speaker of the house of representatives and the state child fatality review team within sixty days after the report is submitted.

4. Encourage and assist in the development of local child fatality review teams.

5. Develop standards and protocols for local child fatality review teams and provide training and technical assistance to these teams.

6. Develop protocols for child fatality investigations, including protocols for law enforcement agencies, prosecutors, medical examiners, health care facilities and social service agencies.

7. Study the adequacy of statutes, ordinances, rules, training and services to determine what changes are needed to decrease the incidence of preventable child fatalities and, as appropriate, take steps to implement these changes.

8. Provide case consultation on individual cases to local teams if requested.

9. Educate the public regarding the incidence and causes of child fatalities as well as the public's role in preventing these deaths.

10. Designate a state team chairperson.

11. Develop and distribute an informational brochure that describes the purpose, function and authority of the state team. The brochure shall be available at the offices of the department of health services.

12. Beginning January 1, 2025, conduct an annual statistical report on the incidence and causes of child fatalities and near fatalities identified by the department of child safety pursuant to section 8-807.01 for the past year and submit a copy of this report, including its recommendations for action, to the governor, the president of the senate and the speaker of the house of representatives on or before November 15 of each year. The report shall include available information regarding plans for or progress toward implementation of recommendations. Recommendations made to a state agency, board or commission shall require a written response indicating whether the agency is capable of implementing the recommendations within its existing authority and resources, including any applicable implementation plan, to the governor, the president of the senate, the speaker of the house of representatives and the state child fatality review team within sixty days after the report is submitted.

13. Inform the governor and the legislature of the need for specific recommendations regarding sudden unexpected infant death.

14. Periodically review the infant death investigation checklist developed by the department of health services pursuant to section 36-3506. In reviewing the checklist, the state team shall consider guidelines endorsed by national infant death organizations.

D. State team members are not eligible to receive compensation, but members appointed pursuant to subsection B of this section are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

E. The department of health services shall provide professional and administrative support to the state team.

F. Notwithstanding subsections C and D of this section, this section does not require expenditures above the revenue available from the child fatality review fund.

§ 36-3501.01 Maternal mortality review program; committee; members; reports; compensation; definition

A. The maternal mortality review program is established to evaluate the incidence, causes and preventability of pregnancy-associated deaths. The program shall coordinate and facilitate case reviews by the maternal mortality review committee. In collaboration with the maternal mortality review program, the maternal mortality review committee shall produce prevention recommendations that aim to address the contributing factors that lead to preventable pregnancy-associated deaths.

B. The maternal mortality review program is composed of the maternal mortality review committee and the committee's staff. The director of the department of health services shall appoint the members of the committee. The director or the director's designee shall serve as cochairperson of the committee. The committee shall elect a second cochairperson from the committee's membership.

C. The director of the department of health services shall appoint at least the following members of the maternal mortality review committee, one of whom is from a county with a population of less than five hundred thousand persons:

1. Two obstetricians who are licensed pursuant to title 32, chapter 13 or 17, at least one of whom is a maternal fetal medicine specialist.

2. A certified nurse midwife who is licensed pursuant to title 32, chapter 15.

3. A representative of a nonprofit organization that provides education, services or research related to maternal and child health.

4. A representative of an organization that represents hospitals in this state.

5. A behavioral health professional.

6. A domestic or interpersonal violence specialist.

7. A forensic pathologist or toxicologist.

8. An individual with personal or community-level experience in maternal health issues.

9. A representative from the Arizona health care cost containment system.

10. A representative from the department of child safety.

11. A representative from the Arizona perinatal trust.

12. A representative of Indian health services.

D. The maternal mortality review program shall:

1. Develop a data collection system for maternal fatalities.

2. Provide training to cooperating agencies and individuals on identification, review and dissemination processes.

3. On or before May 15 of each even-numbered year, produce a statistical report on the incidence and causes of pregnancy-related deaths in this state and submit a copy of this report, including the committee's recommendations for preventing maternal fatalities, to the governor, the president of the senate, the speaker of the house of representatives and the chairpersons of the health and human services committees of the house of representatives and the senate, or their successor committees.

4. Study the adequacy of statutes, ordinances, rules, training and services to determine the changes that are needed to decrease the incidence of preventable maternal fatalities.

E. Committee members are not eligible to receive compensation, but members appointed pursuant to subsection C of this section are eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.

F. For the purposes of this section, "pregnancy-associated death" means a death that occurred during pregnancy or within one year after the end of pregnancy.

§ 36-3502 Local child fatality review teams; members; duties

A. Local child fatality review teams shall abide by the standards and protocol for local child fatality review teams developed by the state team and must have prior authorization from the state team to conduct reviews. Local teams shall be composed of the head of the following departments, agencies or associations, or that person's designee:

1. County medical examiner.

2. Department of child safety.

3. County health department.

B. The chairperson of the state child fatality review team shall appoint the following members of the local team:

1. A domestic violence specialist.

2. A mental health specialist.

3. A pediatrician who is certified by the American board of pediatrics or a family physician who is certified by the American board of family medicine. The pediatrician or family physician shall also be licensed in this state.

4. A person from a local law enforcement agency.

5. A person from a local prosecutor's office.

6. A parent.

C. Local child fatality review teams shall:

1. Designate a team chairperson who shall review the death certificates of all children who die within the team's jurisdiction and call meetings of the local team when necessary.

2. Assist the state team in collecting relevant data.

3. Submit written reports to the state team as directed by that team. These reports shall include nonidentifying information on individual cases and steps taken by the local team to implement necessary changes and improve the coordination of services and investigations.

§ 36-3503 Access to information; confidentiality; violation; classification

A. On request of the chairperson of the state or a local child fatality review team or the maternal mortality review program and as necessary to carry out the team's or program's duties, the chairperson shall be provided within five days excluding weekends and holidays with access to all information and records regarding a child whose fatality or near fatality is being reviewed by the team or information and records regarding the child's family and records of a maternal fatality associated with pregnancy pursuant to section 36-3501.01:

1. From a person or institution providing medical, dental, nursing or mental health care.

2. From this state or a political subdivision of this state that might assist a team or program to review a child fatality or near fatality or a case of maternal mortality.

B. A law enforcement agency with the approval of the prosecuting attorney may withhold from release pursuant to subsection A of this section any investigative records that might interfere with a pending criminal investigation or prosecution.

C. The director of the department of health services or the director's designee may apply to the superior court for a subpoena as necessary to compel the production of books, records, documents and other evidence related to a team investigation. Subpoenas issued shall be served and, on application to the court by the director or the director's designee, enforced in the manner provided by law for the service and enforcement of subpoenas. A law enforcement agency is not required to produce the information requested under the subpoena if the subpoenaed evidence relates to a pending criminal investigation or prosecution. All records shall be returned to the agency or organization on completion of the review. Written reports or records containing identifying information shall not be kept by the team.

D. All information and records acquired by the state team, any local team or a program are confidential and are not subject to subpoena, discovery or introduction into evidence in any civil or criminal proceedings, except that information, documents and records otherwise available from other sources are not immune from subpoena, discovery or introduction into evidence through those sources solely because they were presented to or reviewed by a team or program.

E. Members of a team or program, persons attending a team or program meeting and persons who present information to a team or program may not be questioned in any civil or criminal proceedings regarding information presented in or opinions formed as a result of a meeting. This subsection does not prevent a person from testifying to information that is obtained independently of the team or program or that is public information.

F. Pursuant to policies adopted by the state child fatality review team or the maternal mortality review program, a member of the state or a local child fatality review team or the maternal mortality review program, or the member's designee, may contact, interview or obtain information from a close contact or family member of a child or woman who dies within the team's or program's jurisdiction. The state child fatality review team and maternal mortality review program shall establish a process for approving any contact, interview or request before any team or program member or designee contacts, interviews or obtains information from the close contact or family member of a child or woman who dies within the team's or program's jurisdiction. Policies adopted pursuant to this subsection must require that any individual who engages with a family member be trained in trauma informed interview techniques and educated on support services available to the close contact or family member.

G. State and local team and program meetings are closed to the public and are not subject to title 38, chapter 3, article 3.1 if the team or program is reviewing individual child fatality cases or cases of maternal fatalities associated with pregnancy. All other team and program meetings are open to the public.

H. A person who violates the confidentiality requirements of this section is guilty of a class 2 misdemeanor.

§ 36-3504 Child fatality review fund

A. The child fatality review fund is established consisting of appropriations, monies received pursuant to section 36-341, subsection E and gifts, grants and donations made to the department of health services to implement subsection B of this section. The department of health services shall administer the fund. The department shall deposit, pursuant to sections 35-146 and 35-147, all monies it receives in the fund.

B. The department of health services shall use fund monies to staff the state child fatality review team and the suicide mortality review team and to train and support local child fatality review teams and suicide mortality review teams.

C. Monies spent for the purposes specified in subsection B of this section are subject to legislative appropriation. Any fee revenue collected in excess of $200,000 in any fiscal year is appropriated from the child fatality review fund to the child abuse prevention fund established pursuant to section 8-550.01, subsection A, to be used for healthy start programs.

§ 36-3505 Protocols

A. The department of health services shall establish protocols for death scene investigations of apparent natural infant deaths. In developing the protocols the department shall consider guidelines established by national infant death organizations.

B. At a minimum the protocols shall:

1. Include recommended procedures for all first responders, law enforcement agencies and local social services agencies to follow in response to apparent natural infant death.

2. Recommend that in the course of an investigation of an apparent natural infant death, the scene where the infant was found should be examined even if the infant's body was transported to a hospital and pronounced dead at a hospital.

3. Recommend that during the investigation of an apparent natural infant death, investigators should use their skills and knowledge to determine the cause of death while keeping in mind the need for compassion and sensitivity for the parents and caregivers.

§ 36-3506 Infant death investigation checklist

A. A law enforcement officer who in the regular course of duty investigates an unexplained infant death shall complete an infant death investigation checklist developed by the department of health services.

B. The law enforcement officer shall complete the checklist before an autopsy is conducted.

C. The officer's law enforcement agency shall retain the original checklist and immediately forward a copy of the checklist to the county medical examiner and the department of health services.

D. The department shall periodically review and modify the checklist in consultation with the child fatality review team.

E. A law enforcement officer's failure to use the checklist is not a defense to or a basis for dismissal of a criminal prosecution.

Article 2 Crib Safety

§ 36-3521 Definitions

In this article, unless the context otherwise requires:

1. "Commercial user" means a person who deals in cribs or who claims to have knowledge or skill particular to cribs or who is in the business of remanufacturing, retrofitting, selling, leasing, subletting or otherwise placing cribs in the stream of commerce. Commercial user includes child care facilities, child care group homes licensed pursuant to this title, hotels and motels.

2. "Crib" means a bed or containment designed to accommodate an infant and includes full-size cribs and nonfull-size cribs.

3. "Full-size crib" has the same meaning prescribed in 16 Code of Federal Regulations section 1508.3.

4. "Infant" means a child who is less than thirty-five inches tall and who is under three years of age.

5. "Nonfull-size crib" has the same meaning prescribed in 16 Code of Federal Regulations section 1509.2.

§ 36-3522 Unsafe cribs; design characteristics; violation; classification

A. A commercial user shall not knowingly remanufacture, retrofit, lease, sublease, sell or otherwise place in the stream of commerce a crib that is in violation of 16 Code of Federal Regulations part 1303, 1508 or 1509 or that has any of the following design characteristics:

1. Corner posts that extend more than one-sixteenth of an inch.

2. Spaces between side slats that are more than two and three-eighths inches.

3. A mattress support that can be easily dislodged from any point of the crib. For the purposes of this paragraph, a mattress support can be easily dislodged if it cannot withstand at least a twenty-five pound upward force from underneath the crib.

4. Cutout designs on the panels.

5. Rail height dimensions that do not conform to the following:

(a) The height of the rail and end panel is at least nine inches, as measured from the top of the rail or panel in its lowest position to the top of the mattress support in its highest position.

(b) The height of the rail and end panel is at least twenty-six inches, as measured from the top of the rail or panel in its highest position to the top of the mattress support in its lowest position.

6. Any screws, bolts or hardware that are loose and not secured.

7. Sharp edges, points or rough surfaces.

8. Wood surfaces that are not smooth and free from splinters, splits or cracks.

9. Nonfull-size cribs with tears in mesh or fabric sides.

B. A commercial user who knowingly places a crib in the stream of commerce in violation of this section is guilty of a class 1 misdemeanor.

§ 36-3523 Injunctions

A person may apply for a temporary restraining order or preliminary or permanent injunction from the superior court to enjoin the remanufacturing, retrofitting, leasing, subleasing, selling or otherwise placing in the stream of commerce a crib that does not comply with this article.

Chapter 36 Telehealth

Article 1 General Provisions

§ 36-3601 Definitions

For the purposes of this chapter:

1. "Health care decision maker" has the same meaning prescribed in section 12-2801.

2. "Health care provider":

(a) Means a person licensed pursuant to title 32, chapter 7, 8, 13, 14, 15, 15.1, 16, 17, 18, 19, 19.1, 25, 28, 29, 33, 34, 35, 39, 41 or 42, or chapter 4, article 6 of this title, chapter 6, article 7 of this title or chapter 17 of this title.

(b) Includes:

(i) A health care institution licensed pursuant to chapter 4 of this title.

(ii) A person who holds a training permit pursuant to title 32, chapter 13 or 17.

3. "Health care provider regulatory board or agency" means a board or agency that regulates one or more health care provider professions in this state.

4. "Telehealth" means:

(a) The interactive use of audio, video or other electronic media, including asynchronous store-and-forward technologies and remote patient monitoring technologies, for the practice of health care, assessment, diagnosis, consultation or treatment and the transfer of medical data.

(b) Includes the use of an audio-only telephone encounter between the patient or client and health care provider if an audio-visual telehealth encounter is not reasonably available due to the patient's functional status, the patient's lack of technology or telecommunications infrastructure limits, as determined by the health care provider.

(c) Does not include the use of a fax machine, instant messages, voice mail or email.

§ 36-3602 Delivery of health care through telehealth; requirements; exceptions

A. Except as provided in subsection G of this section, before a health care provider delivers health care through telehealth, the treating health care provider shall obtain verbal or written informed consent, including by electronic means, from the patient or the patient's health care decision maker. If the informed consent is obtained verbally, the health care provider shall document the consent on the patient's medical record.

B. The patient is entitled to all existing confidentiality protections pursuant to section 12-2292.

C. All medical reports resulting from a telehealth consultation are part of a patient's medical record as defined in section 12-2291.

D. Dissemination of any images or information identifiable to a specific patient for research or educational purposes shall not occur without the patient's consent, unless authorized by state or federal law.

E. Except as provided in subsection F of this section and for schedule II drugs, a health care provider regulatory board or agency may not enforce any statute, rule or policy that would require a health care provider who is licensed by that board or agency and who is authorized to write prescriptions or dispense or administer prescription drugs and devices to provide an in-person examination of the patient before issuing a prescription except as specifically prescribed by federal law. A physical or mental health status examination may be conducted during a telehealth encounter. Schedule II drugs may be prescribed only after an in-person or audio-visual examination and only to the extent allowed by federal and state law.

F. Services provided through telehealth are subject to this state's laws and rules governing the health care provider's scope of practice and the practice guidelines adopted by the telehealth advisory committee on telehealth best practices established by section 36-3607.

G. The consent requirements of this section do not apply:

1. If the telehealth interaction does not take place in the physical presence of the patient.

2. In an emergency situation in which the patient or the patient's health care decision maker is unable to give informed consent.

3. To the transmission of diagnostic images to a health care provider serving as a consultant or the reporting of diagnostic test results by that consultant.

§ 36-3603 State jurisdiction; scope

This article applies to the practice of telehealth within this state. This article does not expand, reduce or otherwise amend the health care provider licensing requirements of title 32.

§ 36-3604 Use of telehealth for abortion prohibited; penalty; definition

A. A health care provider shall not use telehealth to provide an abortion.

B. A health care provider who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32.

C. For the purposes of this section, "abortion" has the same meaning prescribed in section 36-2151.

§ 36-3605 Health care providers; determination of telehealth medium

Consistent with the best practice guidelines adopted by the telehealth advisory committee on telehealth best practices established by section 36-3607, a health care provider shall make a good faith effort in determining both of the following:

1. Whether a health care service should be provided through telehealth instead of in person. The health care provider shall use the health care provider's clinical judgment in considering whether the nature of the services necessitates physical interventions and close observation and the circumstances of the patient, including diagnosis, symptoms, history, age, physical location and access to telehealth.

2. The communication medium of telehealth and, whenever reasonably practicable, the telehealth communication medium that allows the health care provider to most effectively assess, diagnose and treat the patient. Factors the health care provider may consider in determining the communication medium include the patient's lack of access to or inability to use technology or limits in telecommunication infrastructure necessary to support interactive telehealth encounters.

§ 36-3606 Interstate telehealth services; registration; requirements; venue; exceptions

A. A health care provider who is not licensed in this state may provide telehealth services to a person located in this state if the health care provider complies with all of the following:

1. Registers with this state's applicable health care provider regulatory board or agency that licenses comparable health care providers in this state on an application prescribed by the board or agency that contains all of the following:

(a) The health care provider's name.

(b) Proof of the health care provider's professional licensure, including all United States jurisdictions in which the provider is licensed and the license numbers. Verification of licensure in another state shall be made through information obtained from the applicable regulatory board's website.

(c) The health care provider's address, email address and telephone number, including information if the provider needs to be contacted urgently.

(d) Evidence of professional liability insurance coverage.

(e) Designation of a duly appointed statutory agent for service of process in this state.

2. Before prescribing a controlled substance to a patient in this state, registers with the controlled substances prescription monitoring program established pursuant to chapter 28 of this title.

3. Pays the registration fee as determined by the applicable health care provider regulatory board or agency.

4. Holds a current, valid and unrestricted license to practice in another state that is substantially similar to a license issued in this state to a comparable health care provider and is not subject to any past or pending disciplinary proceedings in any jurisdiction. The health care provider shall notify the applicable health care provider regulatory board or agency within five days after any restriction is placed on the health care provider's license or any disciplinary action is initiated or imposed. The health care provider regulatory board or agency registering the health care provider may use the national practitioner databank to verify the information submitted pursuant to this paragraph.

5. Acts in full compliance with all applicable laws and rules of this state, including scope of practice, laws and rules governing prescribing, dispensing and administering prescription drugs and devices, telehealth requirements and the best practice guidelines adopted by the telehealth advisory committee on telehealth best practices established by section 36-3607.

6. Complies with all existing requirements of this state and any other state in which the health care provider is licensed regarding maintaining professional liability insurance, including coverage for telehealth services provided in this state.

7. Consents to this state's jurisdiction for any disciplinary action or legal proceeding related to the health care provider's acts or omissions under this article.

8. Follows this state's standards of care for that particular licensed health profession.

9. Annually updates the health care provider's registration for accuracy and submits to the applicable health care provider regulatory board or agency a report with the number of patients the provider served in this state and the total number and type of encounters in this state for the preceding year.

B. A health care provider who is registered pursuant to this section may not:

1. Open an office in this state, except as part of a multistate provider group that includes at least one health care provider who is licensed in this state through the applicable health care provider regulatory board or agency.

2. Provide in-person health care services to persons located in this state without first obtaining a license through the applicable health care provider regulatory board or agency.

C. A health care provider who fails to comply with the applicable laws and rules of this state is subject to investigation and both nondisciplinary and disciplinary action by the applicable health care provider regulatory board or agency in this state. For the purposes of disciplinary action by the applicable health care provider regulatory board or agency in this state, all statutory authority regarding investigating, rehabilitating and educating health care providers may be used. If a health care provider fails to comply with the applicable laws and rules of this state, the applicable health care provider regulatory board or agency in this state may revoke or prohibit the health care provider's privileges in this state, report the action to the national practitioner database and refer the matter to the licensing authority in the state or states where the health care provider possesses a professional license. In any matter or proceeding arising from such a referral, the applicable health care provider regulatory board or agency in this state may share any related disciplinary and investigative information in its possession with another state licensing board.

D. The venue for any civil or criminal action arising from a violation of this section is the patient's county of residence in this state.

E. A health care provider who is not licensed to provide health care services in this state but who holds an active license to provide health care services in another jurisdiction and who provides telehealth services to a person located in this state is not subject to the registration requirements of this section if either of the following applies:

1. The services are provided under one of the following circumstances:

(a) In response to an emergency medication condition.

(b) In consultation with a health care provider who is licensed in this state and who has the ultimate authority over the patient's diagnosis and treatment.

(c) To provide after-care specifically related to a medical procedure that was delivered in person in another state.

(d) To a person who is a resident of another state and the telehealth provider is the primary care provider or behavioral health provider located in the person's state of residence.

2. The health care provider provides fewer than ten telehealth encounters in a calendar year.

§ 36-3607 Telehealth advisory committee on telehealth best practices; membership; reports

A. The telehealth advisory committee on telehealth best practices is established consisting of the following members who are appointed by the governor:

1. One physician who is licensed pursuant to title 32, chapter 13.

2. One physician who is licensed pursuant to title 32, chapter 17 and who is practicing primary care in this state.

3. Two advanced practice registered nurses who are licensed pursuant to title 32, chapter 15.

4. One physician who is licensed pursuant to title 32, chapter 13 or 17 and who specializes in pain management.

5. One psychiatrist who is licensed pursuant to title 32, chapter 13 or 17.

6. One psychologist who is licensed pursuant to title 32, chapter 19.1.

7. Two behavioral health professionals who are licensed pursuant to title 32, chapter 33, one of whom is employed by an outpatient treatment center.

8. One physician who is licensed pursuant to title 32, chapter 14.

9. One health care professional whose primary area of focus is treating persons with developmental disabilities.

10. One health care professional whose primary area of focus is industrial injuries.

11. One speech-language pathologist who is licensed pursuant to chapter 17 of this title.

12. One occupational therapist who is licensed pursuant to title 32, chapter 34.

13. One hospital administrator.

14. One physician assistant who is licensed pursuant to title 32, chapter 25.

15. One representative of the Arizona commission for the deaf and the hard of hearing.

16. Two representatives of health care insurers who are licensed health care providers.

17. One optometrist who is licensed pursuant to title 32, chapter 16.

18. One representative of a vertically integrated telemedicine technology manufacturer of hardware and compatible software.

19. One behavior analyst who is licensed pursuant to title 32, chapter 19.1.

20. One representative from each of the following:

(a) The Arizona health care cost containment system.

(b) The department of health services.

(c) The department of economic security.

(d) The department of insurance and financial institutions.

(e) The industrial commission of Arizona.

B. The advisory committee:

1. Shall review national and other standards for telehealth best practices and relevant peer-reviewed literature.

2. May conduct public meetings at which testimony may be taken regarding the efficacy of various communications media and the types of services and populations for which telehealth is appropriate.

3. Shall adopt telehealth best practice guidelines and recommendations regarding the health care services that may be appropriately provided through an audio-only telehealth format and make updates, when applicable. Before making its recommendations, the advisory committee shall analyze medical literature and national practice guidelines, consider the comparative effectiveness and safety and the benefit to the patient of performing a service through an audio-only telehealth format instead of in person or through an audio-visual telehealth format, and the appropriate frequency and duration of audio-only telehealth encounters.

4. May authorize subcommittees to address select issues or services and report to the advisory committee as directed.

5. On or before December 1, 2021, shall submit a report to the governor, the president of the senate and the speaker of the house of representatives with the advisory committee's recommendations regarding the specific health care services that are appropriate to provide through an audio-only telehealth format as a substitute for an in-person or audio-visual telehealth encounter.

6. On or before June 30, 2022, shall submit a report to the governor, the president of the senate and the speaker of the house of representatives with the advisory committee's recommendations regarding telehealth best practice guidelines for health care providers.

C. The Arizona health care cost containment system shall staff the advisory committee and provide meeting space.

Chapter 36.1 Teledentistry

Article 1 General Provisions

§ 36-3611 Definitions

In this article, unless the context otherwise requires:

1. "Board" means the state board of dental examiners.

2. "Dental provider" means a dental hygienist, affiliated practice dental hygienist or dental assistant who is licensed pursuant to title 32, chapter 11.

3. "Dentist" means a person who is licensed in the general practice of dentistry pursuant to title 32, chapter 11.

4. "Health care decision maker" has the same meaning prescribed in section 12-2801.

5. "Teledentistry" means the use of data transmitted through interactive audio, video or data communications for the purposes of examination, diagnosis, treatment planning, consultation and directing the delivery of treatment by dentists and dental providers in settings permissible under title 32, chapter 11 or specified in rules adopted by the board.

§ 36-3612 Delivery of care through teledentistry; requirements; exceptions

A. Except as provided in subsection E of this section, before a dentist or dental provider delivers care through teledentistry, the dentist or dental provider shall obtain verbal or written informed consent from the patient or the patient's health care decision maker. If the informed consent is obtained verbally, the dentist or dental provider shall document the consent on the patient's record.

B. In any teledentistry interaction, the patient is entitled to all existing confidentiality protections pursuant to section 12-2292.

C. All reports resulting from a teledentistry consultation are part of a patient's dental record as prescribed in section 32-1264.

D. In any teledentistry interaction, the dissemination of any images or information identifiable to a specific patient for research or educational purposes may not occur without the patient's consent, unless authorized by state or federal law.

E. The consent requirements of this section do not apply to the transmission of diagnostic images to another health care provider or dental specialist or the reporting of diagnostic test results by that specialist.

§ 36-3613 Scope of article

This article applies to the practice of teledentistry within this state. This article does not expand, reduce or otherwise amend the licensing requirements of title 32, chapter 11 for dentists or dental providers.

Chapter 37 Sexually Violent Persons

Article 1 General Provisions

§ 36-3701 Definitions

In this article, unless the context otherwise requires:

1. "Agency" means any agency that is authorized to direct the release of a person who is serving a sentence or term of confinement or who is receiving treatment, including a state or federal prison, a county jail and the Arizona state hospital or other mental health treatment agency.

2. "Competent professional" means a person who is:

(a) Familiar with the state's sexually violent persons statutes and sexual offender treatment programs available in this state.

(b) Approved by the superior court as meeting court approved guidelines.

3. "Conviction" includes a finding of guilt at any time for a sexually violent offense or an order of the juvenile court adjudicating the person delinquent for any sexually violent offense.

4. "Less restrictive alternative" means court ordered treatment in a setting that is less restrictive than total confinement and that is conducted in a setting approved by the superintendent of the state hospital.

5. "Mental disorder" means a paraphilia, personality disorder or conduct disorder or any combination of paraphilia, personality disorder and conduct disorder that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others.

6. "Sexually violent offense" means any of the following:

(a) Indecent exposure to a person who is under fifteen years of age pursuant to section 13-1402, public sexual indecency to a minor pursuant to section 13-1403, sexual conduct with a minor pursuant to section 13-1405, sexual assault pursuant to section 13-1406, molestation of a child pursuant to section 13-1410, continuous sexual abuse of a child pursuant to section 13-1417 or sexual assault of a spouse if the offense was committed before August 12, 2005.

(b) Second degree murder pursuant to section 13-1104, first degree murder pursuant to section 13-1105, assault pursuant to section 13-1203, aggravated assault pursuant to section 13-1204, unlawful imprisonment pursuant to section 13-1303, kidnapping pursuant to section 13-1304 or burglary in the first degree pursuant to section 13-1508 if the court at the time of sentencing or civil commitment proceedings determines beyond a reasonable doubt that the act was sexually motivated pursuant to section 13-118.

(c) An attempt, a solicitation, a facilitation or a conspiracy to commit an offense listed in subdivision (a) or (b) of this paragraph.

(d) An act committed in another jurisdiction that if committed in this state would be a sexually violent offense listed in subdivision (a), (b) or (c) of this paragraph.

(e) A conviction for a felony offense that was in effect before September 1, 1978 and that if committed on or after September 1, 1978 would be comparable to a sexually violent offense listed in subdivision (a) or (b) of this paragraph.

7. "Sexually violent person" means a person to whom both of the following apply:

(a) Has ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial.

(b) Has a mental disorder that makes the person likely to engage in acts of sexual violence.

§ 36-3702 Notice of release; referral; immunity

A. If an agency that has jurisdiction over a person who is at least eighteen years of age determines that the person may be a sexually violent person, the agency shall submit a written request that a petition be filed to the county attorney in the county in which the person was convicted, was found incompetent or will be released or to the attorney general not more than one hundred eighty days and not less than thirty days before the person's anticipated release:

1. From confinement if the person was convicted at any time of a sexually violent offense.

2. If the person was found guilty except insane at any time of committing a sexually violent offense.

3. If the person was charged at any time with a sexually violent offense and was determined to be incompetent to stand trial.

B. If the person has been found incompetent to stand trial pursuant to title 13, chapter 41 and there is no substantial likelihood that the person will be restored to competency within twenty-one months after the date of the original finding of incompetency, the county attorney may request the court to order a screening of the person pursuant to section 13-4518 to determine if the person may be a sexually violent person.

C. If the state department of corrections or the Arizona state hospital has jurisdiction over a person who is at least eighteen years of age and who at any time was convicted of a sexually violent offense, was found guilty except insane of committing a sexually violent offense or was charged with a sexually violent offense and was determined to be incompetent to stand trial, the state department of corrections or the Arizona state hospital shall determine if the person may be a sexually violent person. If the agency determines that the person may be a sexually violent person, the agency shall submit a written request that a petition be filed either to the county attorney in the county in which the person was convicted, was found incompetent or will be released or to the attorney general. The agency must submit the written request not more than one hundred eighty days and not less than thirty days before the person's anticipated release. If the person has a pending sentence of imprisonment in another state or federal jurisdiction, in lieu of the written request the director of the state department of corrections may instead enter into a written agreement with the prosecuting authority by which the person was prosecuted, was found incompetent or will be released to have the person retrieved by the other state or federal jurisdiction.

D. The agency shall provide the county attorney or attorney general with the following to support the written request that a petition be filed:

1. Certified copies of the following court documents:

(a) The complaint, information, judgment of conviction and commitment order for the sexually violent offense that forms the basis for the petition and detention orders.

(b) The complaint, information, judgment of conviction and commitment order for any other conviction that the submitting agency possesses.

2. All records of evaluation and treatment, including any of the following:

(a) All psychological and psychiatric tests and assessment reports and supporting information.

(b) Group notes, autobiographical notes, progress notes, psychosocial reports or other materials that were prepared by or that relate to the person while the person was in custody or receiving treatment from the submitting agency or any other agency.

(c) Presentence investigation reports, whether prepared by the state department of corrections, by a private agency or at the direction of the superior court for sentencing on the sexually violent offense.

3. All records of the person's version of the offenses for which the person has been convicted, including the notes and records of all interviews and discussions with the person while the person was in the care of the submitting agency or any other agency.

4. A record of all convictions and acquittals regardless of whether those convictions were for sexually violent offenses.

5. Police reports that are in the possession of the referring agency and that relate to any sexually violent offense that was committed by the person.

6. Institutional records that relate to the person's behavior and conduct while in custody and that are in the possession of the referring agency.

7. Information indicating the dates of acceptance and rejection by the person of any recommended or court ordered psychotropic medication to control the person's mental disorder.

8. Information indicating the dates of acceptance and rejection by the person of any recommended or court ordered psychological or psychiatric counseling for treatment of the person's mental disorder.

9. A final release or discharge report, together with any information on which the report is based, that is prepared in anticipation of either the person's release from incarceration or commitment. The report shall include:

(a) A report of the person's condition that was completed within the preceding one hundred twenty days and that includes an opinion expressing to a reasonable degree of psychiatric, psychological or professional certainty that the person has a mental disorder and that, as a result of that mental disorder, the person is likely to engage in a sexually violent offense.

(b) A list of the names of all treatment providers who have treated or worked with the person.

(c) The curriculum vitae of each of the treating individuals that details each individual's education, training and experience.

(d) The facility in which the person is located at the time of the referral and in which the person will be residing pending the filing of a petition.

E. The agency and the agency's officers and employees providing mental health evaluations and reports are immune from liability for any good faith acts under this article.

F. The department of health services and the department of health services' officers and employees providing mental health evaluations and reports are immune from liability for any good faith acts under this article.

G. An agency's inability to comply with the time requirements under subsection A or C of this section does not preclude the county attorney or the attorney general from filing a petition alleging that a person is a sexually violent person.

§ 36-3703 Competent professionals

A. If a person is subject to an examination under this article, each party may select a competent professional to perform simultaneous evaluations of the person. The parties may stipulate to an evaluation by only one competent professional.

B. If the person is indigent, the court shall assist the person in retaining a competent professional to conduct the examination or to participate in the trial on the person's behalf.

C. Each competent professional shall be given reasonable access to the person in order to conduct the examination and shall share access to all relevant medical and psychological records, test data, test results and reports.

D. A competent professional who is retained by a party or who is appointed by the court is not permitted to give testimony unless the competent professional exchanges information as required by this section and, at least ten days before trial, submits to the court and all of the parties a written report of the competent professional's evaluation of the person.

E. At any proceeding under this chapter, a competent professional who is retained by a party or who is appointed by the court is not subject to a court order for the sequestration of witnesses.

F. The court shall approve a reasonable amount to be paid by the county for the services of a competent professional appointed by the court. In approving the amount to be paid the court shall consider the time expended, services rendered, expenses incurred and compensation received in the same case or for the same services from any other source.

§ 36-3704 Sexually violent person petition; filing; procedures

A. Before a sexually violent person is released from confinement, the following persons may file a petition in superior court alleging that the person is a sexually violent person and stating sufficient facts to support that allegation:

1. The county attorney in the county in which a person was found incompetent to stand trial of, found guilty except insane of or convicted of a sexually violent offense.

2. The county attorney in the county in which the person will be released or the attorney general if the person was found incompetent to stand trial of, found guilty except insane of or convicted of a sexually violent offense in another jurisdiction outside the state.

B. The Arizona rules of evidence and the Arizona rules of civil procedure apply to proceedings under this article. The court may admit evidence of past acts that would constitute a sexual offense pursuant to section 13-1420 and the Arizona rules of evidence.

C. The person who is named in the petition is entitled to assistance of counsel at any proceeding that is conducted pursuant to this article. If the person is indigent, the court shall appoint counsel to assist the person. The county board of supervisors may fix a reasonable amount to be paid by the county for the services of an appointed attorney.

D. The court's jurisdiction over a person who is civilly committed pursuant to this article continues until the person is discharged by the court.

E. At any hearing concerning conditions of detention, commitment or treatment at a licensed facility under the supervision of the superintendent of the Arizona state hospital, a person who is detained or committed pursuant to this article shall show that the procedures or actions of the licensed facility have no reasonable basis in fact or law.

§ 36-3705 Judicial determination of sexually violent person; transfer for evaluation

A. On the filing of a petition pursuant to section 36-3704, the judge shall determine if probable cause exists to believe that the person named in the petition is a sexually violent person.

B. If the judge determines that probable cause exists to believe that the person named in the petition is a sexually violent person, the judge shall order that the person be detained in a licensed facility under the supervision of the superintendent of the Arizona state hospital.

C. On motion of the respondent filed within ten days after service of the petition, the court shall hold a probable cause hearing.

D. Within seventy-two hours after a person is detained pursuant to subsection B of this section, the court shall provide the person with notice of and an opportunity to appear at a probable cause hearing to contest the probable cause finding made by the court pursuant to subsection A of this section. At the hearing, the court shall verify the person's identity and shall determine if probable cause exists to believe that the person is a sexually violent person. At the hearing, the state may rely on the petition that alleges that the person is a sexually violent person and that is filed pursuant to section 36-3704. The state may supplement the information in the petition with additional documentary evidence or live testimony.

E. At the probable cause hearing, the person has the following rights:

1. To present evidence on the person's behalf.

2. To cross-examine witnesses who testify against the person.

3. To view and copy all documents and reports in the court file.

F. After the hearing, if the court determines probable cause does not exist to believe that the person is a sexually violent person, the court shall dismiss the petition.

G. If at the hearing the court reaffirms that probable cause exists to believe that the person is a sexually violent person, the judge shall order an evaluation as to whether the person is a sexually violent person. A person whom the court selects from a list of competent professionals shall conduct the evaluation.

H. If the respondent has not requested a probable cause hearing within ten days after service of the petition, the court shall order an evaluation as to whether the respondent is a sexually violent person. A person whom the court selects from a list of competent professionals shall conduct the evaluation.

I. The county shall pay the costs of an evaluation conducted pursuant to subsection G or H of this section.

J. The referring agency shall make available to the department of health services all records concerning the person detained pursuant to this section.

§ 36-3706 Trial

Within one hundred twenty days after a petition is filed pursuant to section 36-3704, the court shall conduct a trial to determine if the person named in the petition is a sexually violent person. The county attorney, attorney general or person named in the petition may request a jury trial. If no request is made, the trial shall be before the court. The judge may continue the trial at the request of either party on a showing of good cause or on its own motion if the person will not be substantially prejudiced.

§ 36-3707 Determining sexually violent person status; commitment procedures

A. The court or jury shall determine beyond a reasonable doubt if the person named in the petition is a sexually violent person. If the state alleges that the sexually violent offense on which the petition for commitment is based was sexually motivated, the state shall prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

B. If the court or jury determines that the person is a sexually violent person, the court shall either:

1. Commit the person to the custody of the department of health services for placement in a licensed facility under the supervision of the superintendent of the Arizona state hospital and shall receive care, supervision or treatment until the person's mental disorder has so changed that the person would not be a threat to public safety if the person was conditionally released to a less restrictive alternative or was unconditionally discharged.

2. Order that the person be released to a less restrictive alternative if the conditions under sections 36-3710 and 36-3711 are met.

C. If the court or jury does not determine beyond a reasonable doubt that the person is a sexually violent person, the court shall order the person's release.

D. If the person named in the petition was found incompetent to stand trial, the court first shall hear evidence and determine if the person committed the act or acts charged if the court did not enter a finding before the charges were dismissed. The court shall enter specific findings on whether the person committed the act or acts charged, the extent to which the person's incompetence to stand trial affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf, the extent to which the evidence could be reconstructed without the assistance of the person and the strength of the prosecution's case. If the court finds beyond a reasonable doubt that the person committed the act or acts charged, the court shall enter a final order to that effect and may then consider whether the person should be committed pursuant to this section.

§ 36-3708 Annual examination of committed persons; report

A. The psychiatrist, psychologist or other competent professional of the state hospital or a licensed facility under the supervision of the superintendent of the Arizona state hospital shall annually examine each person who is committed pursuant to this article. The person who conducts the annual examination shall submit the examination report to the court. The annual report shall state if conditional release to a less restrictive alternative is in the best interest of the person and will adequately protect the community.

B. The person may retain, or on the request of an indigent person the court may appoint, a competent professional to conduct the examination. A retained or appointed competent professional shall have access to all records concerning the person. If the person retains or is appointed a competent professional, the state has the right to have the committed person evaluated by a competent professional of the state's own choice. All competent professionals shall have equal access to the person as well as all records concerning the person.

C. The court shall hold a hearing pursuant to section 36-3709 if any change of release conditions is recommended.

§ 36-3709 Petition for change of status; procedures

A. If the superintendent of the state hospital or the director of the department of health services determines that the person's mental disorder has so changed that the person is not likely to engage in acts of sexual violence if conditionally released to a less restrictive alternative, the superintendent or director shall allow the person to petition the court for conditional release to a less restrictive alternative. The person shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for conditional release to a less restrictive alternative within forty-five days after receiving the petition. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the respondent will not be substantially prejudiced. The county attorney or the attorney general shall represent the state at the hearing and may request that the petitioner be examined by a competent professional selected by the county attorney or the attorney general. The attorney for the state has the burden of proving beyond a reasonable doubt that the petitioner's mental disorder has not changed and that the petitioner remains a danger to others and is likely to engage in acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged.

B. This section does not prohibit the committed person from annually petitioning the court for conditional release to a less restrictive alternative without the approval of the superintendent of the state hospital or the director of the department of health services. The director of the department of health services shall give annual written notice to the committed person of the person's right to petition the court for conditional release to a less restrictive alternative without the approval of the superintendent or director. The notice shall contain a waiver of rights. The director shall submit the notice and waiver to the court with the annual examination report.

C. The committed person may be present at the hearing. The county attorney or the attorney general may request that the person be examined by a competent professional selected by the attorney for the state. The committed person may retain and the court on request of an indigent person may appoint a competent professional. The attorney for the state has the burden of proving beyond a reasonable doubt that the person's mental disorder has not changed and that the person remains a danger to others and is likely to engage in acts of sexual violence if conditionally released to a less restrictive alternative. If the state does not meet its burden of proof, the person shall be discharged from treatment.

D. If at the conclusion of a hearing the court finds that there is no legally sufficient evidentiary basis to conclude that the conditions prescribed in section 36-3711 have been met, the court shall grant the state's motion for a judgment on the issue of conditional release to a less restrictive alternative.

§ 36-3710 Conditional release to a less restrictive alternative; conditions; reports; review

A. If the court determines that conditional release to a less restrictive alternative is in the best interest of the person and will adequately protect the community and the court determines that the minimum conditions under section 36-3711 are met, the court shall enter judgment and order the person's conditional release to a less restrictive alternative.

B. The court may impose any additional conditions on the person that the court determines are necessary to ensure the person's compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both ensure the person's compliance with treatment and protect the community, the court shall remand the person to the custody of the superintendent of the state hospital for care, supervision or treatment in a licensed facility that is under the supervision of the superintendent.

C. If the provider that is designated to provide inpatient or outpatient treatment or to monitor or supervise any other terms and conditions of a person's placement in a less restrictive alternative is not the state hospital, the provider shall agree in writing to provide the treatment.

D. Before the court authorizes a person's conditional release to a less restrictive alternative, the court shall impose any conditions on the person that the court determines are necessary to ensure the safety of the community. The conditions shall include that prior to release to a less restrictive alternative, a person shall be required to submit to ninety days of inpatient evaluation at the Arizona state hospital. At the discretion of the superintendent of the state hospital, the duration of the evaluation period may be less than ninety days. The court shall order the superintendent of the state hospital to investigate the less restrictive alternative and to submit additional conditions to the court. The court shall give a copy of the conditions of release to the person and to any designated service provider. Other conditions may include any of the following:

1. Specification of a residence.

2. Prohibition on any contact with potential or past victims.

3. Prohibition on the use of alcohol and other drugs.

4. Supervision by the department of health services or the county probation department if the person is serving a term of probation.

5. A requirement that the person remain in this state unless the person receives prior authorization from the court.

6. Other conditions that the court or the superintendent of the state hospital determines are in the best interest of the person or others.

E. Following a determination that a person's release to a less restrictive alternative is warranted and after considering the recommendation regarding the duration and amount of treatment by the superintendent of the state hospital, the court shall require as a condition of release to a less restrictive alternative, that the person participate in outpatient treatment. The outpatient supervision and treatment may include monitoring a person by use of a polygraph or plethysmograph or both. The treatment shall continue until the court orders a change in the person's treatment requirements or the person is discharged pursuant to section 36-3714.

F. Each month or as otherwise directed by the court, each designated service provider shall submit a report that states if the person is complying with the terms and conditions of the conditional release to a less restrictive alternative to:

1. The court.

2. The facility from which the person was released.

3. The county attorney in the county where the person was found to be a sexually violent person or to the attorney general.

G. The court shall review the case of each person who is conditionally released to a less restrictive alternative within one year after the person's release and thereafter on motion of either party or the superintendent of the state hospital or on the court's own motion until the person is discharged. At a case review, the court shall determine only if the person shall continue to be conditionally released to a less restrictive alternative. In making its determination, the court shall consider the periodic reports that are submitted to the court pursuant to subsection F of this section and the opinions of the superintendent of the state hospital and any other competent professional.

H. If a person is conditionally released to a less restrictive alternative, the department of health services shall notify the department of public safety of the person's release so that the department of public safety can commence any notification process as provided in section 13-3825.

§ 36-3711 Conditional release to a less restrictive alternative; findings

Before the court orders that a person be conditionally released to a less restrictive alternative, the court shall find that all of the following apply:

1. The person will be treated by a provider who is qualified to provide the necessary treatment in this state.

2. The provider presents a specific course of treatment for the person, agrees to assume responsibility for the person's treatment, will report on the person's progress to the court on a regular basis and will report any violations as prescribed in paragraphs 4 and 5 of this section immediately to the court, the attorney for the state and the superintendent of the state hospital.

3. The person who is conditionally released to a less restrictive alternative has housing arrangements that are sufficiently secure to protect the community and the person or agency that is providing the housing to the conditionally released person agrees in writing to the following conditions:

(a) To accept the conditionally released person.

(b) To provide the level of security that the court requires.

(c) To immediately report the unauthorized absence of the conditionally released person from the housing arrangement to which the person has been assigned.

4. The person will comply with the provider and all of the requirements that are imposed by the provider and the court.

5. The person will comply with the supervision requirements that are imposed by the department of health services or the county probation department if the person is serving a term of probation.

§ 36-3712 Detention and commitment requirements; definition

A. A person who is committed or conditionally released to a less restrictive alternative pursuant to this article does not forfeit any legal right and shall not suffer any legal disability as a consequence of any actions taken or orders made except as specifically provided in this article.

B. A person who is committed or conditionally released to a less restrictive alternative pursuant to this article shall receive care, supervision or treatment. The superintendent of the state hospital shall keep records detailing all medical, expert and professional care and treatment that a committed person receives and shall keep copies of all reports of periodic examinations that are made pursuant to this article. These records and reports shall be made available on request only to any of the following:

1. The committed person.

2. The committed person's attorney.

3. The county attorney or the attorney general.

4. The court.

5. On proper showing, an expert or professional person who demonstrates a need for access to the records or reports.

6. Any mental health professional directly responsible or associated with the mental health professional who is directly responsible for the care, control, assessment or treatment of the committed person.

C. At the time a person is detained or transferred into a licensed facility pursuant to this article, the person in charge of the facility or the person's designee shall take reasonable precautions to inventory and safeguard the personal property of the detained or transferred person. The staff member who makes an inventory of the person's personal property shall give a signed copy of that inventory to the person. The facility shall allow a responsible relative to inspect the property, subject to any limitations that the person specifically imposes. The facility shall not disclose the contents of the inventory to any other person without the consent of the person or a court order.

D. This article does not prohibit a person who is committed or conditionally released to a less restrictive alternative from exercising any right that is available for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus. The committed person must exhaust all direct appeal and postcommitment procedures before exercising the committed person's right to petition for a writ of habeas corpus.

E. A person who is indigent may not be conditionally released to a less restrictive alternative or discharged without suitable clothing. When a person is conditionally released to a less restrictive alternative or discharged, the superintendent of the state hospital shall furnish the person with an amount of money pursuant to section 31-228.

F. For the purposes of this section, "responsible relative" means the spouse, parent, adult child or adult sibling of the person and includes the guardian, conservator or attorney of the person.

§ 36-3713 Revocation of conditional release to a less restrictive alternative; hearing

A. If the petitioner or the court believes that the person who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of release or is in need of additional care and treatment, the designated service provider or the attorney for the state may petition the court for, or the court on its own motion may schedule, a hearing for the purpose of revoking or modifying the terms and conditions of the person's conditional release. The hearing shall be held within ten days after the petition is filed.

B. If the attorney for the state or the court reasonably believes that a person who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of the person's conditional release, is in need of additional care or treatment or if the circumstances of the release have changed so that the community is no longer safe, the court, the department of health services or the probation officer may order that the conditionally released person be detained and taken into custody until a hearing can be scheduled to determine if the person's conditional release should be revoked or modified. The court shall be notified before the close of the next judicial day of the person's detention. The attorney for the state and the conditionally released person may request an immediate mental examination of the person. If the conditionally released person is indigent, the court, on request, shall assist the person in obtaining a competent professional to conduct the examination.

C. Within five days after receiving notice of the person's detention, the court shall schedule a hearing. At the hearing, the court shall determine if the state has proved by a preponderance of the evidence that the person who is conditionally released to a less restrictive alternative did not comply with the terms and conditions of release, is in need of additional care or treatment or if the circumstances of the release have changed so that the community is no longer safe and if the person should continue on conditional release under the same or modified conditions or if the conditional release should be revoked and the person should be committed to total confinement, subject to release only under the provisions of this chapter. The court may admit hearsay evidence if the court finds that the hearsay evidence is otherwise reliable.

§ 36-3714 Petition for discharge; procedures

A. If the superintendent of the state hospital or the director of the department of health services determines that the person's mental disorder has so changed that the person is not likely to engage in acts of sexual violence if discharged, the superintendent or director shall allow the person to petition the court for discharge. The person shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for discharge within forty-five days after receiving the petition. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the respondent will not be substantially prejudiced. The county attorney or the attorney general shall represent the state at the hearing and may request that the petitioner be examined by a competent professional who is selected by the county attorney or the attorney general. The attorney for the state has the burden of proving beyond a reasonable doubt that the petitioner's mental disorder has not changed and that the petitioner remains a danger to others and is likely to engage in acts of sexual violence if discharged.

B. This section does not prohibit the committed person from annually petitioning the court for discharge without the approval of the superintendent of the state hospital or the director of the department of health services. The director of the department of health services shall give annual written notice to the committed person of the person's right to petition the court for discharge without the approval of the superintendent or director. The notice shall contain a waiver of rights. The director shall submit the notice and waiver to the court with the annual examination report.

C. The committed person may be present at the discharge hearing. The county attorney or the attorney general may request that the person be examined by a competent professional who is selected by the attorney for the state. The committed person may retain and the court on the request of an indigent person may appoint a competent professional. The attorney for the state has the burden of proving beyond a reasonable doubt that the person's mental disorder has not changed and that the person remains a danger to others and is likely to engage in acts of sexual violence if discharged. If the state does not meet its burden of proof, the person shall be discharged from treatment.

D. If a person is discharged the department of health services shall notify the department of public safety of the person's discharge so that the department of public safety can commence any notification process as provided in section 13-3825.

§ 36-3715 Expenditure limitation

The total amount of state monies that may be spent in any fiscal year by the department of health services for all aspects of the sexually violent persons program shall not exceed the amount appropriated, or authorized by section 35-173, for that purpose. This section shall not be construed to impose a duty on an officer, agent or employee of this state to discharge a responsibility or to create any right in a person or group if the discharge or right would require an expenditure of state monies in excess of the expenditure authorized by legislative appropriation for that specific purpose.

§ 36-3716 Expenditure limitation; political subdivision

A. The total amount of monies that may be spent in any fiscal year by a political subdivision pursuant to this article for all aspects of the sexually violent persons program shall not exceed the amount authorized by the budget established pursuant to section 11-201 or section 11-251, paragraph 30, for that purpose.

B. This section shall not be construed to impose a duty of a political subdivision or an officer, agent or employee of a political subdivision to discharge a responsibility or to create any right in a person or group if the discharge or right would require an expenditure of the monies of the political subdivision in excess of the expenditure authorized by the political subdivision for that specific purpose.

§ 36-3717 Place of proceedings; transportation; immunity

A. Except as provided in subsection B of this section, a person who is detained or civilly committed pursuant to this article shall not be transported from a licensed facility under the supervision of the superintendent of the Arizona state hospital, except that a person may be transported to court for any of the following reasons:

1. A probable cause hearing pursuant to section 36-3705.

2. A trial pursuant to section 36-3706.

3. A hearing on a petition for conditional release to a less restrictive alternative pursuant to section 36-3709.

4. A hearing on a petition for discharge pursuant to section 36-3714.

5. Any evidentiary hearing in which the presence of a person who is detained or civilly committed pursuant to this article is necessary.

6. Any court proceeding not otherwise specified in this article where the presence of the detainee or committed person is required.

B. Subsection A of this section does not apply to any person whom the court has determined is subject to conditional release pursuant to section 36-3710 or to any necessary medical transports.

C. Subsection A of this section does not preclude any proceeding from being held on the grounds of the Arizona state hospital or from using a telephonic conference or an interactive audiovisual device. The court shall adopt rules concerning the conduct of proceedings pursuant to this article. The rules shall ensure the safety of all persons. The rules may include provisions that allow for proceedings to be held on the grounds of the Arizona state hospital or for the use of a telephonic conference or an interactive audiovisual device.

D. The department of health services is responsible for the transportation to and from a medical facility of a person who is detained or committed pursuant to this article. The department of health services shall determine the appropriate mode of transportation and level of security and restraint for the transportation needs of the person. In determining the appropriate mode of transportation and level of security and restraint, the department shall consider the safety of the public, the transporting personnel and the detained or committed person.

E. The department of health services and any county sheriff are immune from liability for any good faith acts under this section.

Chapter 38 Health Information Organizations

Article 1 General Provisions

§ 36-3801 Definitions

In this chapter, unless the context otherwise requires:

1. "Breach" has the same meaning prescribed in 45 Code of Federal Regulations, part 164, subpart D.

2. "De-identified health information" has the same meaning as described in 45 Code of Federal Regulations section 164.514.

3. "Health care decision maker" has the same meaning prescribed in section 12-2291.

4. "Health care provider" has the same meaning prescribed in section 12-2291.

5. "Health information organization" means an organization that oversees and governs the exchange of individually identifiable health information among organizations according to nationally recognized standards. Health information organization does not include:

(a) A health care provider or an electronic health record maintained by or on behalf of a health care provider.

(b) Entities that are subject to title 20 or that are health plans as defined in 45 Code of Federal Regulations section 160.103.

(c) The exchange of individually identifiable health information directly between health care providers without a separate organization governing that exchange.

6. "Individual":

(a) Means the person who is the subject of the individually identifiable health information.

(b) Does not include an inmate as defined under the health insurance portability and accountability act privacy standards prescribed in 45 Code of Federal Regulations section 164.501.

7. "Individually identifiable health information" has the same meaning prescribed in the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E).

8. "Medical records" has the same meaning prescribed in section 12-2291.

9. "Opt out" means an individual's written decision that the individual's individually identifiable health information cannot be shared through a health information organization.

10. "Participation" or "participating", with respect to a health information organization, means providing or accessing individually identifiable health information in the manner provided in the health information organization's policies.

11. "Person" has the same meaning prescribed in section 1-215.

12. "Written" means in handwriting or through an electronic transaction that meets the requirements of title 44, chapter 26.

§ 36-3802 Individual rights

A. An individual has the following rights:

1. Except as otherwise provided in state or federal law, to opt out of having the individual's individually identifiable health information accessible through a health information organization pursuant to section 36-3803.

2. To request a copy of the individual's individually identifiable health information that is accessible through the health information organization in accordance with the health insurance portability and accountability act (45 Code of Federal Regulations section 164.524). The health information organization may provide this right directly or may require health care providers or other persons participating in the health information organization to provide this access to individuals. Charges for copies are governed by section 12-2295.

3. To request the amendment of incorrect individually identifiable health information accessible through the health information organization.

4. To request a list of the persons who have accessed the individual's individually identifiable health information through the health information organization for a period of at least three years before the individual's request. This list must be provided to the individual within thirty days after the individual's request.

5. To be notified, pursuant to section 18-552 and 45 Code of Federal Regulations part 164, subpart D, of a breach at the health information organization that affects the individual's individually identifiable health information.

B. If an individual does not have the capacity to make health care decisions, the individual's health care decision maker may exercise all individual rights in this chapter on behalf of the individual.

§ 36-3803 Individual right to opt out of health information organizations

Except as otherwise provided in state or federal law, an individual has the right to opt out of having the individual's individually identifiable health information accessible through a health information organization by providing notice as explained in the health information organization's notice of health information practices. If an individual provides a notice of opt out to a health care provider, the health care provider must promptly provide that notice to the health information organization in the manner provided in the health information organization's policies. A decision to opt out of having individually identifiable health information accessible through the health information organization may be changed by an individual at any time by providing notice as explained in the health information organization's notice of health information practices. Individuals who previously elected to opt out of having a particular health care provider's data accessible through the health information organization will be treated by the health information organization as having elected to opt out under this section within ninety days after August 27, 2019.

§ 36-3804 Notice of health information practices; posting; distribution; decision to opt out

A. A health information organization must maintain a written notice of health information practices describing the following:

1. Individually identifiable health information that is accessible through the health information organization.

2. The categories of persons who have access to information, including individually identifiable health information, through the health information organization.

3. The purposes for which access to the information, including individually identifiable health information, is provided through the health information organization. The notice of health information practices may reference a publicly accessible website that displays the current list of allowed purposes for which access to this information is allowed through the health information organization.

4. Except as otherwise provided in state or federal law, the individual's right to opt out of having the individual's individually identifiable health information accessible through the health information organization.

5. An explanation as to how an individual may opt out of having the individual's individually identifiable health information accessible through the health information organization.

B. The notice shall include a statement informing the individual of the right not to have the individual's individually identifiable health information accessible through the health information organization, except as otherwise provided by state or federal law, and that this right is protected by article XXVII, section 2, Constitution of Arizona.

C. A health information organization must post its current notice of health information practices on its website in a conspicuous manner.

D. Notwithstanding any other requirement in this section, a health information organization must provide an individual with a copy of the notice of health information practices within thirty days after receiving a written request for that information.

E. A health care provider participating in a health information organization must distribute and document the distribution of the health information organization's notice of health information practices in the same circumstances and in the same manner as the health care provider is required to distribute and document a notice of privacy practices by the health insurance portability and accountability act (45 Code of Federal Regulation section 164.520(c)(2) and (3)). The health information organization's notice of health information privacy practices must use a legible font in at least ten-point type. Health care providers that share a location may provide the health information organization's notice of health information practices for, or on behalf of, any of the health care providers that share a location.

F. Except as otherwise provided in state or federal law, if an individual chooses to opt out of having the individual's individually identifiable health information accessible through the health information organization, the individual's individually identifiable health information shall not be accessible through the health information organization later than thirty days after the health information organization receives notice, in the manner explained in the health information organization's notice of health information practices, of the individual's decision to opt out. A person who receives de-identified information from the health information organization may not use such de-identified information, either alone or in combination with other information, to identify an individual.

G. If there is a material change to a health information organization's notice of health information practices, including the health information organization's capability to implement individual preferences for sharing or segregating individually identifiable health information, a health care provider must redistribute the notice of health information practices at the next point of contact with the individual or in the same manner and within the same time period as is required by 45 Code of Federal Regulations section 164.528 in relation to the health care provider's notice of privacy practices, whichever comes first.

§ 36-3805 Disclosure of individually identifiable health information; transfer; consent

A. Except as otherwise provided in state or federal law, disclosure of an individual's individually identifiable health information through a health information organization is allowed only if:

1. The individual has not opted out of having the individual's individually identifiable health information accessible through the health information organization.

2. The purpose of the disclosure is explained in the health information organization's current notice of health information practices.

3. The disclosure complies with the health insurance portability and accountability act privacy standard (45 Code of Federal Regulations part 164, subpart E).

B. A health information organization may not sell or otherwise make commercial use of an individual's individually identifiable health information without the written consent of the individual.

C. A health information organization may not transfer individually identifiable health information or de-identified health information that is accessible through the health information exchange to any person or entity for the purpose of research or using the information as part of a set of data for an application for grant or other research funding, unless the health care provider obtains consent from the individual for the transfer. A health care provider must document that it has provided a notice of transfer to the individual and that the individual has received and read and understands the notice. Documentation must be in the form of a signature by the individual indicating the individual has received and read and understands the notice and that the individual gives consent to the transfer of information. For the purposes of this subsection, "consent" means that a health care provider participating in a health information organization has provided a notice to the individual that is in at least twelve-point type and that describes the purposes of the transfer.

D. This chapter does not:

1. Interfere with any other federal or state laws or regulations that provide more extensive protection of individually identifiable health information than provided in this chapter.

2. Limit, change or otherwise affect a health information organization's right or duty to exchange information, including individually identifiable health information and de-identified health information, in accordance with applicable law and by means other than through the health information organization.

§ 36-3806 Required policies

A health information organization must implement and enforce policies governing the privacy and security of individually identifiable health information and compliance with this chapter. These policies must:

1. Implement the individual rights prescribed in section 36-3802.

2. Address the individual's right to opt out of having the individual's individually identifiable health information accessible through the health information organization pursuant to section 36-3803.

3. Address the content and distribution of the notice of health information practices prescribed in section 36-3804.

4. Implement the restrictions on disclosure of individually identifiable health information through the health information organization as prescribed in section 36-3805.

5. Address security safeguards to protect individually identifiable health information as required by the health insurance portability and accountability act security rule (45 Code of Federal Regulations part 164, subpart C).

6. Prescribe the appointment and responsibilities of a person or persons who have responsibility for maintaining privacy and security procedures for the health information organization.

7. Require training of each employee and agent of the health information organization about the health information organization's policies, including the need to maintain the privacy and security of individually identifiable health information and the penalties for the unauthorized access, release, transfer, use or disclosure of individually identifiable health information. The health information organization must initially provide this training before an employee or agent may have access to individually identifiable health information available through the health information organization, and at a later time as reasonable and appropriate in accordance with the training implementation specifications required by the health insurance portability and accountability act privacy rule (45 Code of Federal Regulations section 164.530(b)).

§ 36-3808 Civil litigation subpoenas; certification requirements

A. Except as otherwise provided in state or federal law, individually identifiable health information that is accessible through a health information organization is not subject to a civil litigation subpoena directed to the health information organization unless section 12-2294.01 is followed and a court has determined on motion and notice to the health information organization and the parties to the civil litigation in which the subpoena is served that the information sought from the health information organization is not available from the original source and either is relevant to the subject matter involved in the pending civil action or is reasonably calculated to lead to the discovery of admissible evidence in the pending action.

B. A person who issues a civil litigation subpoena to the health information organization pursuant to this section must certify before the issuance of the civil litigation subpoena that the requirements of subsection A of this section have been met.

§ 36-3809 Health care providers; duty to maintain medical records; civil immunity

A. A health care provider participating in a health information organization is responsible for maintaining the provider's own medical records pursuant to title 12, chapter 13, article 7.1.

B. Participation in a health information organization does not impact the content, use or disclosure of medical records or information contained in medical records that are held in locations other than the health information organization.

C. This chapter does not limit, change or otherwise affect a health care provider's right or duty to exchange medical records or information contained in medical records in accordance with applicable law.

D. A health information organization is not liable for damages in any civil action for any of the following:

1. Inaccurate or incomplete health information that is provided by third parties and that is accessible through the health information organization.

2. Another person's use or disclosure of health information through the health information organization.

3. The use or disclosure of health information that is made in good faith pursuant to this article or as otherwise provided by law. The health information organization is presumed to have acted in good faith. This presumption may be rebutted by clear and convincing evidence.

E. Subsection D of this section does not preclude liability for that portion of any damages resulting from intentional misconduct or gross negligence by a health information organization.

Chapter 39 Children's Camps

Article 1 General Provisions

§ 36-3901 Definition

A. "Children's camp" means any land with permanent buildings, tents or other structures established or maintained as living quarters where both food and lodging or the facilities therefor are provided for minors, operated continuously for a period of five days or more each year for religious, recreational or vacation purposes, and the use of the camp is offered either free of charge or for payment of a fee.

B. The term "children's camp" shall not include any camps owned or leased for individual or family use, penal or correctional camps, or places operated solely for the education, care or treatment of children.

§ 36-3902 Application for license; issuance; posting

A. The department of health services is authorized and directed to issue licenses for the operation of children's camps: No children's camp shall be operated without first obtaining such a license.

B. On or before May 1 annually, every person operating or seeking to operate a children's camp shall make application in writing to the department of health services for a license to conduct a children's camp. The application shall be in such form and shall contain such information as the department of health services finds necessary to determine that the children's camp will be operated and maintained in accordance with the standards prescribed by this chapter.

C. Where a person operates or is seeking to operate more than one children's camp, a separate application shall be made, and license obtained, for each camp.

D. The license shall be posted in a conspicuous place on the premises occupied by each camp.

§ 36-3903 License fee

A. The fee for a children's camp license issued by the department of health services shall be one hundred dollars for the first license and twenty-five dollars for each renewal of the license thereafter. All funds collected from this source shall be deposited, pursuant to sections 35-146 and 35-147, in the state general fund.

B. A county to which the department of health services has delegated powers and duties pursuant to section 36-3915 may charge and collect a license fee. A county shall not charge a fee in excess of the cost of providing the service for which the fee is charged. The county shall transmit fees collected pursuant to this subsection to the county treasurer.

§ 36-3904 Location

Every children's camp shall be located on well-drained ground near an adequate safe water supply.

§ 36-3905 Layout

The general layout of a children's camp shall be planned to lessen fire, accident and disease hazards.

§ 36-3906 Water supply

A. Every children's camp shall be provided with a water supply of sufficient quantity to provide a minimum of five gallons per person per day to the camp site at a rate of two and one-half times the average hourly demand, and be of a safe sanitary quality, meeting the minimum standards of the department of environmental quality.

B. Cross flow or backflow connections with contaminated water supplies or other possible sources of contamination are prohibited.

§ 36-3907 Toilets and disposal systems

Every camp shall be provided with privies or with suitable toilets and with disposal systems meeting minimum health requirements of the department of environmental quality. One toilet or one privy shall be provided for every fifteen persons or fraction thereof in the camp population. Privies shall be located at least one hundred twenty-five feet from any source of domestic water and shall at all times be maintained in good repair and in a clean and sanitary condition.

§ 36-3908 Food service permits

A children's camp shall obtain a food service permit pursuant to the requirements of title 36.

§ 36-3909 Drainage

In every children's camp all kitchen, toilet, bath and other drainage shall be disposed of in such manner as to prevent fly and mosquito breeding and the pollution of any water or food supply.

§ 36-3910 Inspection of camps; revocation of license

A. The department of health services shall make an annual inspection of each children's camp and where upon inspection it is found that there is a failure to comply with any of the standards prescribed by this chapter, the department shall give notice to the camp operator of such failure, which notice shall set forth the law violated.

B. The camp operator shall have a reasonable time after receiving such notice in which to correct such failure and to comply with the standards prescribed by this chapter. In the event the camp operator fails to comply with the requirements of such notice within a reasonable time the department may suspend or revoke his license.

§ 36-3911 Exemption of contract employees from limitations on hours of labor

Any person employed by a children's camp on a written contract basis for a specified term longer than one week shall be exempt from the provisions of section 23-233, relating to daily and weekly hours of labor, except that no child under the age of sixteen years shall be employed for more than forty hours in any one week.

§ 36-3912 Violation; classification

Any person who violates any provision of this article is guilty of a petty offense.

§ 36-3913 Exception

The provisions of this chapter shall not apply to children's camps which are regulated by an existing ordinance of any city or town.

§ 36-3914 Limitations

Nothing in this chapter shall be interpreted to limit the powers and duties of the department of health services.

§ 36-3915 Delegation of powers

The department of health services may delegate powers and duties provided pursuant to this chapter to a county health department of the county in which the children's camp is located.

§ 36-3916 Use of sunscreen

A child who attends a children's camp in this state may possess and use a topical sunscreen product without a note or prescription from a licensed health care professional.

Chapter 40 Dangerous and Incompetent Persons

Article 1 General Provisions

§ 36-4001 Definitions

In this article, unless the context otherwise requires:

1. "Attorney for the state" means the county attorney in the county where the committed defendant was found to be a committed defendant, or the attorney general, who represents this state at any proceedings held pursuant to this chapter.

2. "Biannually" means twice per year.

3. "Committed defendant":

(a) Means a person who has been determined to be incompetent and nonrestorable and dangerous pursuant to title 13, chapter 41.

(b) Includes the committed defendant's attorney or the committed defendant's court-appointed guardian, if any.

4. "Competent professional" means a person who is:

(a) Familiar with this state's criminal and involuntary commitment statutes and standards that are available in this state for persons with a mental illness, defect or disability.

(b) Approved by the superior court as meeting court approved guidelines.

5. "Dangerous" means that, as a result of a mental illness, defect or disability, a person's continued behavior can reasonably be expected, on the basis of a mental health expert's opinion, to result in serious physical harm or death to another person.

6. "Less restrictive alternative" means court-ordered treatment in a setting that is less restrictive than total confinement.

7. "Medical director" means the medical director of the secure behavioral health residential facility in which the committed defendant resides.

8. "Mental illness, defect or disability" means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including a congenital mental condition, a condition resulting from injury or disease or a developmental disability as defined in section 36-551.

9. "Secure state mental health facility" means a secure behavioral health residential facility that is licensed pursuant to section 36-425.06.

§ 36-4002 Biannual examination of committed persons; report; records access; attorney withdrawal

A. The psychiatrist, psychologist or other competent professional of the secure state mental health facility shall biannually examine each person who is committed pursuant to section 13-4521. The person who conducts the biannual examination shall submit the examination report to the court, the state and the committed defendant. The biannual report shall state the treatment and education that the committed defendant has received, a prognosis for the committed defendant's restoration to competency and whether the committed defendant remains dangerous.

B. If the psychiatrist, psychologist or other competent professional submits a report indicating that the committed defendant is competent to stand trial or is no longer dangerous, the court shall hold a hearing to determine whether the committed defendant is competent or is no longer dangerous.

C. If the psychiatrist, psychologist or other competent professional submits a report that the committed defendant is no longer dangerous in whole or in part because of medication that the committed defendant is taking, the report shall state whether the committed defendant will continue to take that medication if released to a less restrictive alternative and would comply with all other conditions of a less restrictive alternative.

D. The court shall hold the hearing within forty-five days after receiving the report. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous and that the committed defendant is incompetent to stand trial.

E. A retained or appointed competent professional shall have access to all records concerning the committed defendant. All competent professionals shall have equal access to the committed defendant as well as all records concerning the committed defendant.

F. This section does not preclude the committed defendant from petitioning the court for conditional release to a less restrictive alternative or discharge from treatment pursuant to section 36-4004, subsection C.

G. If the committed defendant's attorney withdraws from representing the committed defendant at any time during the committed defendant's commitment, the court shall notify the attorney for the state and the committed defendant and either allow the committed defendant sufficient time to employ another attorney or, if the committed defendant is indigent, appoint an attorney to represent the committed defendant in connection with proceedings under this article.

§ 36-4003 Disposition

After a hearing pursuant to section 36-4002 or 36-4004, if the court finds that:

1. The committed defendant has been restored to competency, the court shall order the criminal proceedings to resume.

2. The committed defendant has not been restored to competency and:

(a) The committed defendant is not dangerous, the court shall release the committed defendant from treatment and proceed pursuant to section 13-4517, paragraph 1, 2 or 3.

(b) The committed defendant is not dangerous in whole or in part because of the habilitation or treatment that the patient is receiving, including taking medication, the court may release the committed defendant to a less restrictive alternative pursuant to sections 36-4005 and 36-4006.

(c) The committed defendant is dangerous, the committed defendant, subject to section 13-4521, subsection H, shall remain committed for education, care, supervision and treatment to render the committed defendant competent or nondangerous.

§ 36-4004 Petition for conditional release; procedures

A. If the medical director determines that the committed defendant's mental illness, defect or disability has so changed that the committed defendant is no longer dangerous if conditionally released to a less restrictive alternative, the medical director shall allow the committed defendant to petition the court for conditional release to a less restrictive alternative. The committed defendant shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for conditional release to a less restrictive alternative within forty-five days after receiving the petition. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional.

B. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous if conditionally released to a less restrictive alternative or conditionally released.

C. This section does not prohibit the committed defendant from annually petitioning the court for conditional release to a less restrictive alternative without the approval of medical director. The medical director shall provide an annual written notice to the committed defendant of the committed defendant's right to petition the court for conditional release to a less restrictive alternative without the approval of the medical director. The notice must contain a waiver of rights. The medical director shall submit the notice and waiver to the court with the annual examination report.

D. The committed defendant may be present at the hearing. Either party may request that the committed defendant be examined by the party's own competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous if conditionally released to a less restrictive alternative. If the state does not meet its burden of proof, the committed defendant shall be discharged from treatment.

E. At the conclusion of a hearing, if the court finds that there is no legally sufficient evidentiary basis to conclude that the conditions prescribed in section 36-4006 have been met, the court shall deny conditional release to a less restrictive alternative.

§ 36-4005 Conditional release to a less restrictive alternative; conditions; reports; review

A. If the court determines that conditional release to a less restrictive alternative is in the best interest of the committed defendant and will adequately protect the community and the court determines that the minimum conditions under section 36-4006 are met, the court shall enter judgment and order the committed defendant's conditional release to a less restrictive alternative.

B. If the court concludes that the only reason the committed defendant does not meet the standard for continued commitment is the effect of treatment or habilitation being received, the court may deny the request for conditional release to a less restrictive alternative unless the court finds by a preponderance of the evidence that the committed defendant will continue to receive treatment and habilitation following release for as long as the treatment and habilitation is required. If the court finds that the committed defendant will continue to receive the needed treatment or habilitation, the court may order the committed defendant to be conditionally released to a less restrictive alternative on the condition that the committed defendant continue to receive treatment or habilitation. If the committed defendant fails to receive the treatment or habilitation ordered, the court may revoke the conditional release.

C. The court may impose any additional conditions on the committed defendant that the court determines are necessary to ensure the committed defendant's compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both ensure the committed defendant's compliance with treatment and protect the community, the court shall remand the committed defendant to the custody of the medical director for care, supervision or treatment in a secure state mental health facility.

D. If the provider that is designated to provide inpatient or outpatient treatment or to monitor or supervise any other terms and conditions of a committed defendant's placement in a less restrictive alternative is not the secure state mental health facility, the provider shall agree in writing to provide the treatment.

E. Before the court authorizes a committed defendant's conditional release to a less restrictive alternative, the court shall impose any conditions on the committed defendant that the court determines are necessary to ensure the safety of the community. The conditions shall include that before being released to a less restrictive alternative, a committed defendant must submit to ninety days of inpatient evaluation at the secure state mental health facility, except that in the medical director's discretion, the duration of the evaluation period may be less than ninety days. The court shall order the medical director to investigate the less restrictive alternative and to submit additional conditions to the court. The court shall give a copy of the conditions of release to the committed defendant and to any designated service provider. Other conditions may include any of the following:

1. Specifying a residence.

2. Requiring compliance with any medications prescribed and any testing or monitoring required.

3. Prohibiting any contact with potential or past victims or other persons and prohibiting associating with other persons or types of persons.

4. Prohibiting the use of alcohol and other drugs.

5. Requiring that the committed defendant remain in this state unless the committed defendant receives prior authorization to leave this state from the court.

6. Requiring compliance with required supervision, monitoring or reporting.

7. Complying with other conditions that the court or the medical director determines are in the best interest of the committed defendant or others.

F. Following a determination that a committed defendant's release to a less restrictive alternative is warranted and after considering the recommendation regarding the duration and amount of treatment by the medical director, the court shall require as a condition of release to a less restrictive alternative that the committed defendant participate in outpatient treatment. The outpatient supervision and treatment may include monitoring a committed defendant by use of an electronic bracelet. The treatment shall continue until the court orders a change in the committed defendant's treatment requirements or the committed defendant is discharged pursuant to section 36-4009.

G. Each month or as otherwise directed by the court, each designated service provider shall submit a report that states whether the committed defendant is complying with the terms and conditions of conditional release to a less restrictive alternative to each of the following:

1. The court.

2. The secure state mental health facility from which the committed defendant was released.

3. The attorney for the state.

H. The court shall review the case of each committed defendant who is conditionally released to a less restrictive alternative within one year after the committed defendant's release and annually thereafter on motion of either party or the medical director or on the court's own motion until the committed defendant is discharged. At a case review, the court shall determine only if the committed defendant shall continue to be conditionally released to a less restrictive alternative. In making its determination, the court shall consider the periodic reports that are submitted to the court pursuant to subsection G of this section and the opinions of the medical director and any other competent professional.

§ 36-4006 Conditional release to a less restrictive alternative; findings

Before the court orders that a committed defendant be conditionally released to a less restrictive alternative, the court shall find that all of the following apply:

1. The committed defendant will be treated by a competent professional.

2. The competent professional presents a specific course of treatment for the committed defendant, agrees to assume responsibility for the committed defendant's treatment, will report on the committed defendant's progress to the court on a regular basis and will report any violations as prescribed in paragraphs 4 and 5 of this section immediately to the court, the attorney for the state and the medical director.

3. The committed defendant who is conditionally released to a less restrictive alternative has housing arrangements that are sufficiently secure to protect the community and the person or agency that is providing the housing to the conditionally released committed defendant agrees in writing to the following conditions:

(a) To accept the conditionally released committed defendant.

(b) To provide the level of security that the court requires.

(c) To immediately report the unauthorized absence of the conditionally released committed defendant from the housing arrangement to which the committed defendant has been assigned.

4. The committed defendant will comply with the competent professional and all of the requirements that are imposed by the competent professional and the court.

5. The committed defendant will comply with the supervision requirements that are imposed by the court or the medical director.

§ 36-4007 Detention and commitment requirements; definition

A. A committed defendant does not forfeit any legal right and may not suffer any legal disability as a consequence of any actions taken or orders made pursuant to this article except as specifically provided in this article.

B. A committed defendant shall receive care, supervision or treatment. The medical director shall keep records detailing all medical, expert and professional care and treatment that a committed defendant receives and shall keep copies of all reports of periodic examinations that are made pursuant to this article. These records and reports shall be made available on request only to any of the following:

1. The committed defendant.

2. The committed defendant's attorney.

3. The attorney for the state.

4. The court.

5. On proper showing, an expert or professional who demonstrates a need for access to the records or reports.

6. Any mental health professional directly responsible or associated with the mental health professional who is directly responsible for the care, control, assessment or treatment of the committed defendant.

C. At the time a committed defendant is detained or transferred into a licensed facility, the person in charge of the facility or the person's designee shall take reasonable precautions to inventory and safeguard the personal property of the detained or transferred committed defendant. The staff member who makes an inventory of the committed defendant's personal property shall give a signed copy of that inventory to the committed defendant. The facility shall allow a responsible relative to inspect the property, subject to any limits that the committed defendant specifically imposes. The facility may not disclose the contents of the inventory to any other person without the consent of the committed defendant or a court order.

D. Except as provided in section 13-4517, subsection B, the medical director is responsible for all expenses associated with the education, care, supervision and treatment to render the committed defendant either competent or nondangerous.

E. This article does not prohibit a committed defendant from exercising any right that is available for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus. The committed defendant must exhaust all direct appeal and postcommitment procedures before exercising the committed defendant's right to petition for a writ of habeas corpus.

F. A committed defendant who is indigent may not be conditionally released to a less restrictive alternative or discharged without suitable clothing. When a committed defendant is conditionally released to a less restrictive alternative or discharged, the medical director shall furnish the committed defendant with an amount of money in conformance with section 31-228.

G. For the purposes of this section, "responsible relative" means the spouse, parent, adult child or adult sibling of the committed defendant and includes the guardian, conservator or attorney of the committed defendant.

§ 36-4008 Revocation of conditional release to a less restrictive alternative; hearing

A. If the attorney for the state, the medical director or the court believes that a committed defendant who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of release or is in need of additional care and treatment, the medical director or the attorney for the state may petition the court for, or the court on its own motion may schedule, a hearing for the purpose of revoking or modifying the terms and conditions of the committed defendant's conditional release. The hearing shall be held within ten days after the petition is filed.

B. If the attorney for the state or the court reasonably believes that a committed defendant who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of the committed defendant's conditional release or is in need of additional care or treatment or that the circumstances of the release have changed so that the community is no longer safe, the court may order that the conditionally released committed defendant be detained and taken into custody until a hearing can be scheduled to determine if the committed defendant's conditional release should be revoked or modified. The court and the committed defendant shall be notified before the close of the next judicial day of the committed defendant's detention. The attorney for the state and the committed defendant may request an immediate mental examination of the committed defendant. If the conditionally released committed defendant is indigent, the court, on request, shall assist the committed defendant in obtaining a competent professional to conduct the examination.

C. Within five days after receiving notice of the committed defendant's detention, the court shall schedule a hearing. At the hearing, the court shall determine if the state has proved by a preponderance of the evidence that the committed defendant who is conditionally released to a less restrictive alternative did not comply with the terms and conditions of release or is in need of additional care or treatment, if the circumstances of the release have changed so that the community is no longer safe, if the committed defendant should continue on conditional release under the same or modified conditions or if the conditional release should be revoked and the committed defendant should be committed to total confinement, subject to release only under the provisions of this article. The court may admit hearsay evidence if the court finds that the hearsay evidence is otherwise reliable.

§ 36-4009 Petition for discharge; procedures; annual report

A. If the medical director determines that the committed defendant's mental illness, defect or disability has so changed that the committed defendant is no longer dangerous if discharged but remains incompetent to stand trial, the medical director shall allow the committed defendant to petition the court for discharge. The committed defendant shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for discharge within forty-five days after receiving the petition.

B. The committed defendant may be present at the discharge hearing. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous. If the state does not meet its burden of proof, the committed defendant shall be discharged from treatment.

C. This section does not prohibit the committed defendant from annually petitioning the court for discharge without the approval of the medical director. The medical director shall give annual written notice to the committed defendant of the committed defendant's right to petition the court for discharge without the approval of the medical director and provide a copy of that written notice to the committed defendant in connection with proceedings under this article. The notice shall contain a waiver of rights. The medical director shall submit the notice and waiver to the court with the annual examination report.

D. The medical director of each secure state mental health facility shall annually report the following information for the previous year to the Arizona criminal justice commission:

1. The number of committed defendants who are under the jurisdiction of the medical director because the individual is dangerous, incompetent and nonrestorable.

2. The number of individuals who are committed defendants and dangerous and who are released.

§ 36-4010 Place for proceedings; transportation; immunity

A. A committed defendant may not be transported from a secure state mental health facility, except that a committed defendant may be transported to court for any of the following reasons:

1. A hearing on a biannual examination.

2. A hearing on a petition for conditional release to a less restrictive alternative pursuant to section 36-4005.

3. A hearing on a petition for discharge pursuant to section 36-4009.

4. Any evidentiary hearing in which the presence of a committed defendant is necessary.

5. Any court proceeding not otherwise specified in this article where the presence of the committed defendant is required.

B. Subsection A of this section does not apply to any committed defendant who the court has determined is subject to discharge pursuant to section 36-4009 or to any necessary medical transports.

C. Subsection A of this section does not preclude any proceeding from being held on the grounds of the a secure state mental health facility or from using a telephonic conference or an interactive audiovisual device. The court shall adopt rules concerning the conduct of proceedings pursuant to this article. The rules shall ensure the safety of all persons. The rules may include provisions that allow for proceedings to be held on the grounds of a secure state mental health facility or for the use of a telephonic conference or an interactive audiovisual device.

D. The medical director is responsible for transporting a committed defendant to and from a medical facility. The medical director shall determine the appropriate mode of transportation and level of security and restraint for the transportation needs of the committed defendant. In determining the appropriate mode of transportation and level of security and restraint, the medical director shall consider the safety of the public, the transporting personnel and the detained or committed defendant.

E. The medical director and any county sheriff are immune from liability for any good faith acts under this section.

§ 36-4011 Findings

A finding made by the court pursuant to this article is inadmissible in any proceeding other than a proceeding under this article, under title 13, chapter 41 or under chapter 5 of this title.

Chapter 41 Trauma Recovery Centers

Article 1 General Provisions

§ 36-4101 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department.

3. "Trauma recovery center" means a treatment center that provides at least the following resources, treatments and recovery services to crime victims:

(a) Mental health services.

(b) Assertive community-based outreach and clinical case management.

(c) Coordination of care among medical and mental health care providers, law enforcement agencies and other social services.

(d) Services to family members of homicide victims.

(e) A multidisciplinary staff of clinicians that includes psychiatrists, psychologists and social workers and may include case managers and peer counselors.

§ 36-4102 Trauma recovery center fund; exemption; grants

A. The trauma recovery center fund is established consisting of legislative appropriations, grants and contributions. The director shall administer the fund for the purposes prescribed in this article. Monies in the fund are subject to legislative appropriation and are exempt from the provisions of section 35-190 relating to lapsing of appropriations.

B. The department, in consultation with a national alliance that supports trauma recovery centers, shall establish priorities for the fund. The department shall spend monies in the fund to provide grants to trauma recovery centers.

C. To be eligible to receive a grant pursuant to this section, a trauma recovery center must adhere to the guidelines for operating and implementing trauma recovery centers developed by a national alliance of trauma recovery centers.

§ 36-4103 Annual report

On or before October 1 of each year, the department shall provide an annual report to the governor, the speaker of the house of representatives and the president of the senate that includes information from each trauma recovery center that receives grant monies pursuant to this article on the population served. The department shall provide a copy of the report to the secretary of state.

Chapter 42 Transitional Housing for Reentry Programs

Article 1 Transitional Housing Licensure

§ 36-4201 Definitions

In this article, unless the context otherwise requires:

1. "Department" means the department of health services.

2. "Director" means the director of the department.

3. "Transitional housing facility" means a temporary living arrangement for an individual who, after participating in a prerelease transitional program while incarcerated, is transitioning from incarceration to independent living that provides basic necessities, including job training, employment placement services, direct access to parole officers, housing, clothing, prepared meals and hygiene necessities, at no cost to the individual while the individual is simultaneously participating in a voluntary reentry program that incorporates licensed outpatient behavioral health services that are all located within the same campus environment.

§ 36-4202 Licensure; standards; civil penalties; use of title

A. The director shall adopt rules to establish minimum standards and requirements for the licensure of transitional housing facilities in this state necessary to ensure the public health, safety and welfare. The standards shall include:

1. A requirement that each transitional housing facility develop policies and procedures to promote reentry of individuals into society after incarceration by requiring the individuals to participate in treatment, self-help groups or other community support.

2. Policies requiring abstinence from alcohol and illicit drugs.

3. A requirement that each transitional housing facility develop policies and procedures to allow individuals who are on medication or medication-assisted treatment to continue to receive this medication or treatment while living in the transitional housing facility.

4. A policy that ensures individuals are informed of all transitional housing facility rules and agreements.

5. A policy that requires each resident to complete a housing agreement outlining the rules of the living arrangement within the transitional housing facility, the length of stay and reasons the individual can be discharged from the transitional housing facility.

6. Policies and procedures that require each transitional housing facility to maintain an environment that promotes the safety of the surrounding neighborhood and the community at large.

7. Policies and procedures for discharge planning of persons living in the transitional housing facility that do not negatively impact the surrounding community.

8. A good neighbor policy to address neighborhood concerns and complaints.

9. A requirement that each transitional housing facility post a statement of individual rights that includes the right to file a complaint about the transitional housing facility or provider and information about how to file a complaint.

10. Policies regarding the maintenance of transitional housing facilities, including the installation of functioning smoke detectors, carbon monoxide detectors and fire extinguishers and compliance with local fire codes.

11. Policies and procedures that prohibit a transitional housing facility owner, employee or administrator from requiring an individual to sign any document for the purpose of relinquishing the individual's public assistance benefits, including medical assistance benefits, cash assistance and supplemental nutrition assistance program benefits.

12. Policies and procedures for managing complaints about transitional housing facilities.

13. Requirements for notifying an individual's family member or other emergency contact as designated by the individual under certain circumstances, including death.

B. A person or organization operating a transitional housing facility in this state that has failed to attain or maintain licensure of the transitional housing facility shall pay a civil penalty of up to $1,000.

C. To receive and maintain licensure, a transitional housing facility must comply with all federal, state and local laws, including the Americans with disabilities act of 1990 (P.L. 101-336; 104 Stat. 327).

D. A treatment facility that is licensed by the department to treat behavioral health, mental health, substance use or co-occurring disorders may be located on the same campus as a transitional housing facility. The transitional housing facility shall be separately licensed pursuant to this article.

E. Once the director adopts the minimum standards and requirements for licensure as required by subsection A of this section and the rules required by section 36-4204, a person or organization may not establish, conduct or maintain in this state a transitional housing facility unless that person or organization holds a current and valid license issued by the department. The license is valid only for the establishment, operation and maintenance of a transitional housing facility. The licensee may not:

1. Imply by advertising or directory listing or otherwise imply that the licensee is authorized to perform services that are more specialized or of a higher degree of care than is authorized by this article and rules adopted pursuant to this article for transitional housing facilities.

2. Transfer or assign the license. A license is valid only for the premises occupied by the transitional housing facility at the time of the issuance of the license.

§ 36-4203 Staff education and training

The department shall establish by rule annual continuing education and training requirements for employees, volunteers and contractors who work in a transitional housing facility.

§ 36-4204 Fees; licensure; inspections; violation; classification; civil penalties

A. The director by rule shall establish fees for initial and annual licensure and a fee for the late payment of licensing fees that includes a grace period. The department shall deposit, pursuant to sections 35-146 and 35-147, ninety percent of the fees collected pursuant to this section in the health services licensing fund established by section 36-414 and ten percent of the fees collected pursuant to this section in the state general fund.

B. A transitional housing facility license does not expire and remains valid unless either:

1. The department subsequently revokes or suspends the license pursuant to this article and the rules adopted pursuant to this article.

2. The license is considered void because the licensee did not pay the licensing fee, civil penalties or provider agreement fees before the relevant due date or did not enter into an agreement with the department before the relevant due date to pay all outstanding fees or civil penalties.

C. The department shall conduct annual inspections to verify compliance with the requirements of this article and the rules adopted pursuant to this article. On a determination by the director that there is reasonable cause to believe a transitional housing facility is not adhering to the licensing requirements of this article, the director or any duly designated employee or agent of the director may enter on and into the premises of any transitional housing facility that is licensed or required to be licensed pursuant to this article at any reasonable time for the purpose of determining the state of compliance with this article, the rules adopted pursuant to this article and local fire ordinances or rules. An application for licensure under this article constitutes permission for and complete acquiescence in any entry or inspection of the premises during the pendency of the application and, if licensed, during the term of the license. If an inspection reveals that the transitional housing facility is not adhering to the licensing requirements established pursuant to this article, the director may take action authorized by this article.

D. Any transitional housing facility whose license has been suspended or revoked in accordance with this article is subject to inspection on application for relicensure or reinstatement of the transitional housing facility's license. If a transitional housing facility license is revoked in this state or any other state, the licensee of the transitional housing facility whose license was revoked may not reapply for any license issued pursuant to this title for a period of at least five years.

E. A transitional housing facility that knowingly operates in this state without a license in violation of this article is guilty of a class 6 felony and the director shall assess a civil penalty of not more than $1,000 for each violation. Each day the transitional housing facility operates without a license is a separate violation.

F. The director may impose a civil penalty on a person that violates this article or the rules adopted pursuant to this article in an amount of not more than $1,000 for each violation. Each day that a violation occurs constitutes a separate violation. The director shall issue a notice that includes the proposed amount of the civil penalty assessment. If a person requests a hearing to appeal an assessment, the director may not take further action to enforce and collect the assessment until the hearing process is complete. The director shall impose a civil penalty only for those days for which the violation has been documented by the department.

G. The department may impose sanctions and commence disciplinary actions against a licensed transitional housing facility, including revoking the license. A license may not be suspended or revoked under this article without affording the licensee notice and an opportunity for a hearing as provided in title 41, chapter 6, article 10.

H. The department may contract with a third party to assist the department with licensure and inspections.

§ 36-4205 Posting; transitional housing facility information

The department shall post on its public website the name and telephone number, the department-issued license number, the local jurisdiction business license number and the licensure status of each licensed transitional housing facility in this state and shall update the list quarterly.

§ 36-4206 Notification requirements; sex offender registration

A. Transitional housing facility staff shall notify the department, in a department-provided format, immediately and not more than one business day after any of the following occurs:

1. The death of an individual residing in a transitional housing facility if the resident's death is required to be reported pursuant to section 11-593, including whether the death may have been drug-related.

2. A sex-related crime may have been committed at the transitional housing facility.

3. Any other incident specified in the rule by the department.

B. Transitional housing facility staff may not have a personal or intimate relationship with any individual residing in the transitional housing facility.

C. Transitional housing facility staff shall contact law enforcement if the staff is informed that an individual residing in the transitional housing facility may have been involved in a sex-related crime.

D. A transitional housing facility licensee shall ensure that any individual residing in the licensee's transitional housing facility who is required to register pursuant to section 13-3821 registers within the statutorily required time frame after admission to the transitional housing facility.