S.B. No. 1142
AN ACT
1-1 relating to surrogate decision making for certain clients of an
1-2 intermediate care facility serving persons with mental retardation
1-3 or related conditions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle D, Title 7, Health and Safety Code, is
1-6 amended by adding Chapter 597 to read as follows:
1-7 CHAPTER 597. CAPACITY OF CLIENTS TO CONSENT TO TREATMENT
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 597.001. DEFINITIONS. In this chapter:
1-10 (1) "Highly restrictive procedure" means the
1-11 application of aversive stimuli, exclusionary time-out, physical
1-12 restraint, or a requirement to engage in an effortful task.
1-13 (2) "Client" means a person receiving services in a
1-14 community-based ICF-MR facility.
1-15 (3) "Committee" means a surrogate consent committee
1-16 established under Section 597.042.
1-17 (4) "ICF-MR" has the meaning assigned by Section
1-18 531.002.
1-19 (5) "Interdisciplinary team" means those
1-20 interdisciplinary teams defined in the Code of Federal Regulations
1-21 for participation in the intermediate care facilities for the
1-22 mentally retarded.
1-23 (6) "Major medical and dental treatment" means a
2-1 medical, surgical, dental, or diagnostic procedure or intervention
2-2 that:
2-3 (A) has a significant recovery period;
2-4 (B) presents a significant risk;
2-5 (C) employs a general anesthetic; or
2-6 (D) in the opinion of the primary physician,
2-7 involves a significant invasion of bodily integrity that requires
2-8 the extraction of bodily fluids or an incision or that produces
2-9 substantial pain, discomfort, or debilitation.
2-10 (7) "Psychoactive medication" means any medication
2-11 prescribed for the treatment of symptoms of psychosis or other
2-12 severe mental or emotional disorders and that is used to exercise
2-13 an effect upon the central nervous system for the purposes of
2-14 influencing and modifying behavior, cognition, or affective state.
2-15 (8) "Surrogate decision-maker" means an individual
2-16 authorized under Section 597.041 to consent on behalf of a client
2-17 residing in an ICF-MR facility.
2-18 Sec. 597.002. RULES. The board may adopt rules necessary to
2-19 implement this chapter not later than 180 days after its effective
2-20 date.
2-21 Sec. 597.003. EXCEPTIONS. (a) This chapter does not apply
2-22 to decisions for the following:
2-23 (1) experimental research;
2-24 (2) abortion;
2-25 (3) sterilization;
3-1 (4) management of client funds; and
3-2 (5) electroconvulsive treatment.
3-3 (b) This chapter does not apply to campus-based facilities
3-4 operated by the department.
3-5 (Sections 597.004 to 597.020 reserved for expansion
3-6 SUBCHAPTER B. ASSESSMENT OF CLIENT'S CAPACITY;
3-7 INCAPACITATED CLIENTS WITHOUT GUARDIANS
3-8 Sec. 597.021. ICF-MR ASSESSMENT OF CLIENT'S CAPACITY TO
3-9 CONSENT TO TREATMENT. (a) The board by rule shall require an
3-10 ICF-MR facility certified in this state to assess the capacity of
3-11 each adult client without a legal guardian to make treatment
3-12 decisions when there is evidence to suggest the individual is not
3-13 capable of making a decision covered under this chapter.
3-14 (b) The rules must require the use of a uniform assessment
3-15 process prescribed by board rule to determine a client's capacity
3-16 to make treatment decisions.
3-17 (Sections 597.022 to 597.040 reserved for expansion
3-18 SUBCHAPTER C. SURROGATE CONSENT FOR ICF-MR CLIENTS
3-19 Sec. 597.041. SURROGATE DECISION-MAKERS. (a) If the
3-20 results of an assessment conducted in accordance with Section
3-21 597.021 indicate that an adult client who does not have a legal
3-22 guardian or a client under 18 years of age who has no parent, legal
3-23 guardian, or managing or possessory conservator lacks the capacity
3-24 to make a major medical or dental treatment decision, an adult
3-25 surrogate from the following list, in order of descending
4-1 preference, who has decision-making capacity and who is willing to
4-2 consent on behalf of the client may consent to major medical or
4-3 dental treatment on behalf of the client:
4-4 (1) an actively involved spouse;
4-5 (2) an actively involved adult child who has the
4-6 waiver and consent of all other actively involved adult children of
4-7 the client to act as the sole decision-maker;
4-8 (3) an actively involved parent or stepparent;
4-9 (4) an actively involved adult sibling who has the
4-10 waiver and consent of all other actively involved adult siblings of
4-11 the client to act as the sole decision-maker; and
4-12 (5) any other actively involved adult relative who has
4-13 the waiver and consent of all other actively involved adult
4-14 relatives of the client to act as the sole decision-maker.
4-15 (b) Any person who consents on behalf of a client and who
4-16 acts in good faith, reasonably, and without malice is not
4-17 criminally or civilly liable for that action.
4-18 (c) Consent given by the surrogate decision-maker is valid
4-19 and competent to the same extent as if the client had the capacity
4-20 to consent and had consented.
4-21 (d) Any dispute as to the right of a party to act as a
4-22 surrogate decision-maker may be resolved only by a court of record
4-23 under Chapter V, Texas Probate Code.
4-24 Sec. 597.042. SURROGATE CONSENT COMMITTEE ESTABLISHED;
4-25 DEPARTMENTAL SUPPORT. (a) For cases in which there is no guardian
5-1 or surrogate decision-maker available, the department shall
5-2 establish and maintain a list of individuals qualified to serve on
5-3 a surrogate consent committee.
5-4 (b) The department shall provide the staff and assistance
5-5 necessary to perform the duties prescribed by this subchapter.
5-6 Sec. 597.043. COMMITTEE MEMBERSHIP. (a) A surrogate
5-7 consent committee considering an application for a treatment
5-8 decision shall be composed of at least three but not more than five
5-9 members, and consent on behalf of clients shall be based on
5-10 consensus of the members.
5-11 (b) A committee considering an application for a treatment
5-12 decision must consist of individuals who:
5-13 (1) are not employees of the facility;
5-14 (2) do not provide contractual services to the
5-15 facility;
5-16 (3) do not manage or exercise supervisory control
5-17 over:
5-18 (A) the facility or the employees of the
5-19 facility; or
5-20 (B) any company, corporation, or other legal
5-21 entity that manages or exercises control over the facility or the
5-22 employees of the facility;
5-23 (4) do not have a financial interest in the facility
5-24 or in any company, corporation, or other legal entity that has a
5-25 financial interest in the facility; and
6-1 (5) are not related to the client.
6-2 (c) The list of qualified individuals from which committee
6-3 members are drawn shall include:
6-4 (1) health care professionals licensed or registered
6-5 in this state who have specialized training in medicine,
6-6 psychopharmacology, or psychology;
6-7 (2) persons with mental retardation or parents,
6-8 siblings, spouses, or children of a person with mental retardation;
6-9 (3) attorneys licensed in this state who have
6-10 knowledge of legal issues of concern to persons with mental
6-11 retardation or to the families of persons with mental retardation;
6-12 (4) members of private organizations that advocate on
6-13 behalf of persons with mental retardation; and
6-14 (5) persons with demonstrated expertise or interest in
6-15 the care and treatment of persons with mental disabilities.
6-16 (d) At least one member of the committee must be an
6-17 individual listed in Subsection (c)(1) or (5).
6-18 (e) A member of a committee shall participate in education
6-19 and training as required by department rule.
6-20 (f) Each committee shall designate a committee chair.
6-21 Sec. 597.044. APPLICATION FOR TREATMENT DECISION. (a) If
6-22 the results of the assessment conducted in accordance with Section
6-23 597.021 indicate that a client who does not have a legal guardian
6-24 or surrogate decision-maker lacks the capacity to make a treatment
6-25 decision about major medical or dental treatment, psychoactive
7-1 medication, or a highly restrictive procedure, the ICF-MR facility
7-2 must file an application for a treatment decision with the
7-3 department.
7-4 (b) An application must be in the form prescribed by the
7-5 department, must be signed by the applicant, and must:
7-6 (1) state that the applicant has reason to believe and
7-7 does believe that the client has a need for major medical or dental
7-8 treatment, psychoactive medication, or a highly restrictive
7-9 procedure;
7-10 (2) specify the condition proposed to be treated;
7-11 (3) provide a description of the proposed treatment,
7-12 including the risks and benefits to the client of the proposed
7-13 treatment;
7-14 (4) state the applicant's opinion on whether the
7-15 proposed treatment promotes the client's best interest and the
7-16 grounds for the opinion;
7-17 (5) state the client's opinion about the proposed
7-18 treatment, if known;
7-19 (6) provide any other information necessary to
7-20 determine the client's best interests regarding the treatment; and
7-21 (7) state that the client does not have a guardian of
7-22 the person and does not have a parent, spouse, child, or other
7-23 person with demonstrated interest in the care and welfare of the
7-24 client who is able and willing to become the client's guardian or
7-25 surrogate decision-maker.
8-1 Sec. 597.045. NOTICE OF REVIEW OF APPLICATION FOR TREATMENT
8-2 DECISION. (a) On receipt of an application for a treatment
8-3 decision, the department shall appoint a surrogate consent
8-4 committee.
8-5 (b) The department shall notify pro bono attorney programs
8-6 if available in the area in which the client resides of the intent
8-7 to review an application for treatment decision.
8-8 (c) The ICF-MR facility with assistance from the department
8-9 shall schedule a review of the application.
8-10 (d) The ICF-MR facility shall send notice of the date,
8-11 place, and time of the review to the surrogate consent committee,
8-12 the pro bono attorney program if available in the area in which the
8-13 client resides, the client who is the subject of the application,
8-14 the client's parent, spouse, adult child, or other person known to
8-15 have a demonstrated interest in the care and welfare of the client,
8-16 and any other person as prescribed by board rule. The ICF-MR
8-17 facility shall include a copy of the application and a statement of
8-18 the committee's procedure for consideration of the application,
8-19 including the opportunity to be heard or to present evidence and to
8-20 appeal.
8-21 Sec. 597.046. PREREVIEW OF APPLICATION. (a) Before the
8-22 date of the review of an application for a treatment decision the
8-23 committee chair shall review the application to determine whether
8-24 additional information may be necessary to assist the committee in
8-25 determining the client's best interest under the circumstances.
9-1 (b) A committee member may consult with a person who might
9-2 assist in the determination of the best interest of the client or
9-3 in learning the personal opinions, beliefs, and values of the
9-4 client.
9-5 (c) If a committee that does not include in its membership
9-6 an individual listed in Section 597.043(c)(1) is to review an
9-7 application for a treatment decision about psychoactive medication,
9-8 the committee chair shall consult with a health care professional
9-9 licensed or registered in this state to assist the committee in the
9-10 determination of the best interest of the client.
9-11 Sec. 597.047. CONFIDENTIAL INFORMATION. Notwithstanding any
9-12 other state law, a person licensed by this state to provide
9-13 services related to health care or to the treatment or care of a
9-14 person with mental retardation, a developmental disability, or a
9-15 mental illness shall provide to the committee members any
9-16 information the committee requests that is relevant to the client's
9-17 need for a proposed treatment.
9-18 Sec. 597.048. REVIEW OF APPLICATION. (a) The committee
9-19 shall review the application at the time, place, and date provided
9-20 by the ICF-MR facility in the notice under Section 597.045.
9-21 (b) A person notified under Section 597.045 is entitled to
9-22 be present and to present evidence personally or through a
9-23 representative.
9-24 (c) The committee may take testimony or review evidence from
9-25 any person who might assist the committee in determining a client's
10-1 best interest.
10-2 (d) Formal rules of evidence do not apply to committee
10-3 proceedings.
10-4 (e) If practicable, the committee shall interview and
10-5 observe the client before making a determination of the client's
10-6 best interest, and in those cases when a client is not interviewed,
10-7 the reason must be documented in the client's record.
10-8 (f) At any time before the committee makes its determination
10-9 of a client's best interest under Section 597.049, the committee
10-10 chair shall suspend the review of the application for not more than
10-11 five days if any person applies for appointment as the client's
10-12 guardian of the person in accordance with the Texas Probate Code.
10-13 Sec. 597.049. DETERMINATION OF BEST INTEREST. (a) The
10-14 committee shall make a determination, based on clear and convincing
10-15 evidence, of whether the proposed treatment promotes the client's
10-16 best interest and a determination that:
10-17 (1) a person has not been appointed as the guardian of
10-18 the client's person before the sixth day after proceedings are
10-19 suspended under Section 597.048(f); or
10-20 (2) there is a medical necessity, based on clear and
10-21 convincing evidence, that the determination about the proposed
10-22 treatment occur before guardianship proceedings are completed.
10-23 (b) In making its determination of the best interest of the
10-24 client, the committee shall consider fully the preference of the
10-25 client as articulated at any time.
11-1 (c) According to its determination of the client's best
11-2 interest, the committee shall consent or refuse the treatment on
11-3 the client's behalf.
11-4 (d) The committee shall determine a date on which the
11-5 consent becomes effective.
11-6 (e) A person serving on a committee who consents or refuses
11-7 to consent on behalf of a client and who acts in good faith,
11-8 reasonably, and without malice is not criminally or civilly liable
11-9 for that action.
11-10 Sec. 597.050. NOTICE OF DETERMINATION. (a) The committee
11-11 shall issue a written opinion containing each of its determinations
11-12 and a separate statement of the committee's findings of fact.
11-13 (b) The committee shall send a copy of the committee's
11-14 opinion to:
11-15 (1) each person notified under Section 597.045;
11-16 (2) the director of the client's ICF-MR facility; and
11-17 (3) the department.
11-18 Sec. 597.051. EFFECT OF COMMITTEE'S DETERMINATION. This
11-19 chapter does not limit the availability of other lawful means of
11-20 obtaining a client's consent for medical treatment.
11-21 Sec. 597.052. SCOPE OF CONSENT. (a) The committee or the
11-22 surrogate decision-maker may consent to the release of records
11-23 related to the client's condition or treatment to facilitate
11-24 treatment to which the committee or surrogate decision-maker has
11-25 consented.
12-1 (b) The interdisciplinary team may consent to psychoactive
12-2 medication subsequent to the initial decision for administration of
12-3 psychoactive medication made by a surrogate consent committee.
12-4 (c) Unless another decision-making mechanism is provided for
12-5 by law, a client, a client's authorized surrogate decision-maker if
12-6 available, or the client's interdisciplinary team may consent to
12-7 decisions which involve risk to client protection and rights not
12-8 specifically reserved to surrogate decision-makers or surrogate
12-9 consent committees.
12-10 Sec. 597.053. APPEALS. (a) A person notified under Section
12-11 597.045 may appeal the committee's decision by filing a petition in
12-12 the probate court or court having probate jurisdiction for the
12-13 county in which the client resides or in Travis County. The person
12-14 must file the appeal not later than the 15th day after the
12-15 effective date of the committee's determination.
12-16 (b) If the hearing is to be held in a probate court in which
12-17 the judge is not a licensed attorney, the person filing the appeal
12-18 may request that the proceeding be transferred to a court with a
12-19 judge who is licensed to practice law in this state. The probate
12-20 court judge shall transfer the case after receiving the request,
12-21 and the receiving court shall hear the case as if it had been
12-22 originally filed in that court.
12-23 (c) A copy of the petition must be served on all parties of
12-24 record in the proceedings before the committee.
12-25 (d) After considering the nature of the condition of the
13-1 client, the proposed treatment, and the need for timely medical
13-2 attention, the court may issue a temporary restraining order to
13-3 facilitate the appeal. If the order is granted, the court shall
13-4 expedite the trial.
13-5 Sec. 597.054. PROCEDURES. (a) Each ICF-MR shall develop
13-6 procedures for the surrogate consent committees in accordance with
13-7 the rules adopted under Section 597.002.
13-8 (b) A committee shall phase in, during the three-year period
13-9 immediately following the effective date of this chapter, its
13-10 initial review process for applications for treatment decisions
13-11 regarding adult clients who do not have legal guardians and who are
13-12 receiving psychoactive medication.
13-13 (c) A committee is not subject to the Administrative
13-14 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
13-15 Civil Statutes), the open meetings law, Chapter 271, Acts of the
13-16 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
13-17 Texas Civil Statutes), or the open records law, Chapter 424, Acts
13-18 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
13-19 Vernon's Texas Civil Statutes).
13-20 Sec. 597.055. EXPIRATION. This chapter expires August 31,
13-21 1997.
13-22 SECTION 2. The importance of this legislation and the
13-23 crowded condition of the calendars in both houses create an
13-24 emergency and an imperative public necessity that the
13-25 constitutional rule requiring bills to be read on three several
14-1 days in each house be suspended, and this rule is hereby suspended,
14-2 and that this Act take effect and be in force from and after its
14-3 passage, and it is so enacted.