Arizona Doctor’s Orders Act
Arizona Doctor’s Orders Act
AN ACT
AMENDING TITLE 36, ARIZONA REVISED STATUTES, BY ADDING CHAPTER 46; AMENDING TITLE 20, ARIZONA REVISED STATUTES; RELATING TO HEALTH CARE COVERAGE DECISIONS AND MEDICAL PROFESSIONAL JUDGMENT.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 36, Arizona Revised Statutes, is amended by adding chapter 46, to read:
CHAPTER 46
PATIENT AND PROVIDER PROTECTIONS
ARTICLE 1. GENERAL PROVISIONS
36-4601. Definitions
In this chapter, unless the context otherwise requires:
1. "Attending provider" means a licensed health care professional who has:
(a) Personally examined the patient.
(b) Reviewed the patient's complete medical history.
(c) Established a treating relationship with the patient.
(d) Developed a treatment plan specific to that patient.
2. "Clinical judgment" means the determination made by an attending provider regarding the diagnosis, treatment or care of a patient, based on:
(a) The provider's education, training and experience.
(b) Direct examination of the patient.
(c) Review of the patient's complete medical history.
(d) Current medical evidence and standards of practice within the provider's field.
3. "Conflict of interest" means a set of circumstances that creates a substantial risk that the professional judgment or actions of a reviewing professional regarding a peer-to-peer review will be unduly influenced by a secondary interest, including but not limited to:
(a) Direct financial incentives tied to the frequency or outcome of denial recommendations.
(b) Employment, contractual or compensation structures that reward cost containment over patient care.
(c) Personal, professional or institutional animus toward the attending provider, the patient or the specific treatment at issue.
4. "Coverage determination" means a decision by a health insurer regarding payment for or provision of health care services.
5. "Health insurer" means any entity that provides health insurance in this state, including nonprofit hospital and medical service corporations, health care services organizations and managed care organizations, but excluding self-insured employee welfare benefit plans regulated under the federal Employee Retirement Income Security Act of 1974 (ERISA) to the extent of federal preemption.
6. "Non-attending physician" means any physician or health care professional employed by or under contract with a health insurer who has not personally examined the patient in question.
7. "Peer-to-peer review" means a direct discussion between the attending provider and a physician of the same or related specialty employed by or under contract with the health insurer.
8. "Standards of care" means professional guidelines established by nationally recognized medical specialty boards and associations, state medical board guidelines and public health guidelines. Standards of care shall be based on scientific evidence, clinical expertise and patient welfare, and must recognize the discretion required when guidelines conflict or do not address a patient's specific circumstances.
ARTICLE 2. PROTECTIONS AND PROCEDURES
36-4602. Clinical judgment in coverage determinations
A. The clinical judgment of an attending provider is presumed valid and medically necessary if it is:
1. Within the provider's scope of practice.
2. Supported by the patient's medical record.
3. Consistent with standards of care, as interpreted with the attending provider's discretion for individual patient circumstances.
B. A state agency, board or political subdivision may not issue a rule, guideline or mandate that prohibits or restricts a medical service, procedure or treatment solely on the basis of partisan, ideological or moral preferences rather than generally accepted medical evidence and patient safety. This subsection does not apply to bona fide public health emergencies as declared by the governor.
36-4603. Peer-to-peer review requirements
A. If a health insurer disputes a coverage decision based on medical necessity, the health insurer shall:
1. Provide a peer-to-peer review within three business days after a request by the attending provider.
2. Ensure that the reviewing physician:
(a) Holds active board certification in the same or related specialty as the attending provider.
(b) Has no conflict of interest as defined in section 36-4601.
(c) Has access to complete medical records submitted by the attending provider at least twenty-four hours before the scheduled review.
(d) Certifies in writing the absence of conflicts of interest and any financial incentives tied to denial rates.
B. If the insurer fails to provide a peer-to-peer review that meets the requirements of subsection A, the attending provider's clinical judgment shall be deemed upheld and coverage must be approved.
C. Following a peer-to-peer review, if the insurer maintains its denial, the reviewing physician must document in writing:
1. The specific clinical reasons for the denial.
2. Alternative treatments considered and why they are medically appropriate.
3. The reviewing physician's agreement to be named as a co-defendant in any malpractice action arising from the denied care, should the patient choose to pursue such action.
36-4604. Expedited external review
A. If an attending provider's clinical judgment is denied after peer-to-peer review, the provider or patient may initiate an expedited external appeal to the department of insurance and financial institutions.
B. The department shall:
1. Render a decision within ten business days.
2. Apply a presumption in favor of the attending provider's clinical judgment.
3. Utilize an independent third-party review organization with no financial ties to the insurer.
C. If the department upholds the attending provider's judgment, the health insurer shall:
1. Approve coverage immediately and provide written confirmation within two business days.
2. Pay the claim at the contracted in-network rate.
3. Be subject to a civil penalty of one thousand dollars per day of delay beyond the appeal decision, payable to the affected patient, up to a maximum of ten thousand dollars.
36-4605. Anti-retaliation and bad faith protections
A. A health insurer may not retaliate against an attending provider for exercising clinical judgment in accordance with this chapter.
B. A health insurer acting in bad faith by systematically denying coverage without medical justification, as evidenced by a denial rate more than two standard deviations above the state average for similar covered services, shall be subject to:
1. Administrative sanctions by the department of insurance and financial institutions.
2. A private right of action by the attorney general on behalf of affected policyholders.
3. Required corrective action plans and independent monitoring.
C. Violations of this section are subject to civil penalties of up to twenty-five thousand dollars per violation, plus treble damages for willful violations.
36-4606. Protection from certain civil liability
A. An attending provider is not subject to disciplinary action or professional sanction solely for providing or recommending medical care that is:
1. Within the provider's clinical judgment and applicable standards of care.
2. Legal in this state.
B. Nothing in this section creates immunity from traditional medical malpractice claims based on alleged deviations from the standard of care in the performance of medical services.
C. In any civil action brought against a health care provider for providing or recommending legal medical care in Arizona, the plaintiff bears the burden of proving by clear and convincing evidence that the provider deviated from the applicable standard of care. The fact that the care is politically or ideologically controversial shall not create a presumption of negligence.
36-4607. Enforcement and remedies
A. The attorney general and the director of the department of insurance and financial institutions shall jointly enforce this chapter.
B. An attending provider whose rights under this chapter are violated may bring a civil action for:
1. Actual damages.
2. Injunctive relief.
3. Reasonable attorney fees and costs.
C. A patient who is denied care due to a violation of this chapter may bring a civil action against the health insurer for:
1. Actual damages, including costs of treatment and related expenses.
2. Emotional distress damages.
3. Statutory damages of five thousand dollars per violation.
4. Reasonable attorney fees and costs.
36-4608. Reporting and transparency
A. Health insurers shall report quarterly to the department of insurance and financial institutions on:
1. The number and percentage of prior authorization requests denied.
2. The outcomes of peer-to-peer reviews and expedited appeals.
3. The average time for each step of the review process.
4. Compensation structures for utilization review personnel, including any incentives tied to denial rates.
B. This report shall be publicly available on the department's website in an accessible format, with personally identifiable information redacted.
36-4609. Patient-provider relationship; protected right; standing to challenge
A. LEGISLATIVE FINDINGS AND DECLARATION. THE LEGISLATURE FINDS AND DECLARES THAT:
1. The relationship between a patient and their licensed health care provider is fundamental to personal autonomy, bodily integrity and the pursuit of health and well-being.
2. Decisions regarding medical care, based on the clinical judgment of an attending provider acting in accordance with applicable standards of care, are private and deserve the highest respect under the law.
3. It is the public policy of the State of Arizona to protect the ability of patients to access, and providers to deliver, the medical care that best improves the patient's well-being as determined through this protected relationship.
4. This right and protection extends equally to persons under the care of a duly appointed legal guardian, conservator or other court-appointed decision-maker. In such cases, the guardian acts as the patient's surrogate, with the primary duty to make medical decisions that best promote the ward's well-being, in consultation with the attending provider.
5. The state has a compelling interest in ensuring that laws governing medical practice are grounded in evidence-based medicine and professional standards of care, rather than partisan, ideological or moral preferences.
B. PROTECTED RIGHT ESTABLISHED. The right of a patient to make medical decisions, in consultation with their attending provider, to obtain medical care deemed by that provider to best promote the patient's well-being is hereby recognized as a protected right under Arizona law.
C. STANDING TO CHALLENGE RESTRICTIONS.
1. Any patient, attending provider, health care facility, professional medical society or state medical board aggrieved by a violation of the right established in subsection B may bring a civil action for injunctive relief, declaratory judgment and reasonable attorney fees and costs.
2. For purposes of establishing standing under this section:
(a) A health care provider shall be deemed aggrieved if a statute, rule or regulation creates a reasonable apprehension that the provider will be subject to civil or criminal liability, professional discipline or other sanction for acting in accordance with the provider's clinical judgment and applicable standards of care.
(b) A professional medical society shall have organizational standing to represent the interests of its members in protecting the practice of medicine according to evidence-based standards.
(c) A state medical board or licensing agency shall have standing when a law or regulation places the board in an impossible conflict between its statutory duties under this chapter and other legal mandates.
D. JUDICIAL CONSIDERATION OF MEDICAL EVIDENCE. In any action brought pursuant to this section, or in any other proceeding wherein the validity or application of a state statute, rule or regulation that substantially burdens the right established in subsection B is at issue, the court shall consider and give substantial weight to the following factors:
1. Whether the governmental action is consistent with the preponderance of medical evidence and professional standards of care regarding patient well-being.
2. Whether the governmental action respects the clinical judgment of the attending provider.
3. Whether the governmental action is justified by a governmental interest of the highest order that cannot be achieved through less restrictive means.
4. The extent to which the governmental action is supported by or contradicts consensus positions of relevant national medical specialty organizations.
A governmental interest based primarily on partisan, ideological or moral disagreement with the medical care in question shall not outweigh the protected right established in this section.
E. EXPERT TESTIMONY REQUIREMENT. In any proceeding challenging a medical restriction under this section, the court shall require expert testimony from qualified medical professionals regarding the relevant standards of care and medical evidence. The court may appoint its own neutral experts pursuant to the Arizona rules of evidence.
F. PROTECTIONS FOR PERSONS UNDER GUARDIANSHIP OR WITH DECISION-MAKING SURROGATES.
1. FIDUCIARY STANDARD FOR GUARDIANS. A legal guardian, conservator, health care agent or other surrogate decision-maker acting pursuant to a valid advance directive or court order shall make medical decisions for the ward or principal in accordance with the following priority:
(a) The ward's known personal values, beliefs and prior expressed wishes, if any.
(b) If such values, beliefs or wishes are unknown, the surrogate shall act solely in the ward's best medical interest, as determined through consultation with the attending provider and based on the attending provider's clinical judgment regarding the care that best promotes the ward's well-being.
2. PRESUMPTION FOR GUARDIAN-PROVIDER DECISIONS. A medical decision made by a legal guardian in consultation with and based upon the clinical judgment of the attending provider is presumed to be in the ward's best interest. This presumption may only be rebutted by clear and convincing evidence of bad faith, gross negligence or a conflict of interest on the part of the guardian or provider.
3. STATE INTERVENTION LIMITED. The state, through any agency or court, may not intervene to override a guardian's medical decision that is made consistent with paragraph 1 of this subsection unless the state meets the burden described in paragraph 2 of this subsection and further demonstrates, by clear and convincing evidence, that the decision would cause imminent, serious and irreversible physical harm to the ward. Disagreement with the medical judgment of the attending provider and guardian, or preference for an alternative course of treatment, shall not constitute such harm.
4. EMANCIPATED AND MATURE MINORS. Nothing in this section shall be construed to diminish the rights of emancipated minors or the ability of a mature minor to seek and obtain specific, sensitive medical services as provided under existing Arizona law.
5. GUARDIAN APPOINTMENT NOT A SUBSTITUTE FOR STATE POLICY. The appointment of a guardian for a minor or adult shall not be used as a pretext to circumvent the protections of this chapter. A court may not appoint a guardian for the sole purpose of making a medical decision contrary to the ward's established medical needs or the clinical judgment of their attending provider, as determined prior to the petition for guardianship.
G. APPLICATION AND LIMITATIONS.
1. This section shall not apply to laws or actions that:
(a) Regulate the licensure, discipline or scope of practice of health care professionals for conduct unrelated to the exercise of clinical judgment as defined in this chapter.
(b) Are necessary to prevent imminent, serious physical harm to a third party.
(c) Govern the informed consent process, provided such laws do not compel viewpoint-based disclosures or create undue burdens designed to discourage access to legal care.
2. Nothing in this section creates a right to compel a health care provider to offer a particular service contrary to their own professional judgment or ethical beliefs.
H. CONSTRUCTION WITH OTHER LAWS. The protections of this chapter shall be construed broadly to protect the patient-provider and guardian-provider relationship. Any other statute or rule that conflicts with and diminishes these protections shall be subject to a rebuttable presumption of invalidity.
36-4610. Severability
If a provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application.
Sec. 2. Title 20, chapter 6, Arizona Revised Statutes, is amended by adding section 20-695.01, to read:
20-695.01. Alignment with patient and provider protections
All health insurers subject to state regulation shall comply with the provisions of title 36, chapter 46. Any contrary provision in an insurance policy or contract is void as against public policy.
Sec. 3. Legislative intent regarding ERISA plans
The legislature strongly urges employers offering self-insured ERISA plans to voluntarily adopt the protections and procedures established in this act for the benefit of their Arizona employees and encourages the Arizona congressional delegation to pursue federal legislation to allow states to regulate all health insurance plans operating within their borders.
Sec. 4. Implementation schedule
A. The provisions of this act relating to peer-to-peer review (section 36-4603) and expedited external review (section 36-4604) shall become effective on July 1, 2028.
B. The reporting requirements of section 36-4608 shall become effective on October 1, 2028, with the first report due January 31, 2029.
C. All other provisions of this act shall become effective on January 1, 2028.
D. The department of insurance and financial institutions shall promulgate necessary rules to implement this act no later than September 1, 2027.
