By: Moncrief S.B. No. 1142 A BILL TO BE ENTITLED 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) "Aversive behavior program" means the application 1-11 of aversive stimuli, exclusionary time-out, physical restraint, or 1-12 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. APPLICATION AND EXCEPTIONS. (a) This chapter 2-22 applies only to decisions for the following: 2-23 (1) major medical and dental treatment; 2-24 (2) psychoactive medication; and 2-25 (3) aversive behavior programs. 3-1 (b) This chapter does not apply to campus-based facilities 3-2 operated by the department. 3-3 (Sections 597.004 to 597.020 reserved for expansion 3-4 SUBCHAPTER B. ASSESSMENT OF CLIENT'S CAPACITY; 3-5 INCAPACITATED CLIENTS WITHOUT GUARDIANS 3-6 Sec. 597.021. ICF-MR ASSESSMENT OF CLIENT'S CAPACITY TO 3-7 CONSENT TO TREATMENT. (a) The board by rule shall require an 3-8 ICF-MR facility certified in this state to assess the capacity of 3-9 each adult client without a legal guardian to make treatment 3-10 decisions when there is evidence to suggest the individual is not 3-11 capable of making a decision covered under this chapter. 3-12 (b) The rules must require that the assessment process 3-13 include the use of a uniform assessment tool prescribed by board 3-14 rule to determine a client's capacity to make treatment decisions. 3-15 (Sections 597.022 to 597.040 reserved for expansion 3-16 SUBCHAPTER C. SURROGATE CONSENT FOR ICF-MR CLIENTS 3-17 Sec. 597.041. SURROGATE DECISION-MAKERS. (a) If the 3-18 results of an assessment conducted in accordance with Section 3-19 597.021 indicate that an adult client who does not have a legal 3-20 guardian or a client under 18 years of age who has no parent, legal 3-21 guardian, or managing or possessory conservator lacks the capacity 3-22 to make a major medical or dental treatment decision, an adult 3-23 surrogate from the following list, in order of descending 3-24 preference, who has decision-making capacity and who is willing to 3-25 consent on behalf of the client may consent to major medical or 4-1 dental treatment on behalf of the client: 4-2 (1) an actively involved spouse; 4-3 (2) an actively involved adult child; 4-4 (3) an actively involved parent or stepparent; 4-5 (4) an actively involved adult sibling; and 4-6 (5) any other actively involved adult relative. 4-7 (b) Any person who consents on behalf of a client and who 4-8 acts in good faith, reasonably, and without malice is not 4-9 criminally or civilly liable for that action. 4-10 (c) Consent given by the surrogate decision-maker is valid 4-11 and competent to the same extent as if the client had the capacity 4-12 to consent and had consented. 4-13 Sec. 597.042. SURROGATE CONSENT COMMITTEE ESTABLISHED; 4-14 DEPARTMENTAL SUPPORT. (a) For cases in which there is no guardian 4-15 or surrogate decision-maker available, the department shall 4-16 establish and maintain a list of individuals qualified to serve on 4-17 a surrogate consent committee. 4-18 (b) The department shall provide the staff and assistance 4-19 necessary to perform the duties prescribed by this subchapter. 4-20 Sec. 597.043. COMMITTEE MEMBERSHIP. (a) A surrogate 4-21 consent committee considering an application for a treatment 4-22 decision shall be composed of at least three but not more than five 4-23 members, and consent on behalf of clients shall be based on 4-24 consensus of the members. 4-25 (b) A committee considering an application for a treatment 5-1 decision must consist of individuals who: 5-2 (1) are not employees of the facility; 5-3 (2) do not provide contractual services to the 5-4 facility; 5-5 (3) do not manage or exercise supervisory control 5-6 over: 5-7 (A) the facility or the employees of the 5-8 facility; or 5-9 (B) any company, corporation, or other legal 5-10 entity that manages or exercises control over the facility or the 5-11 employees of the facility; 5-12 (4) do not have a financial interest in the facility 5-13 or in any company, corporation, or other legal entity that has a 5-14 financial interest in the facility; and 5-15 (5) are not related to the client. 5-16 (c) The list of qualified individuals from which committee 5-17 members are drawn shall include: 5-18 (1) health care professionals licensed or registered 5-19 in this state who have specialized training in medicine, 5-20 psychopharmacology, or psychology; 5-21 (2) persons with mental retardation or parents, 5-22 siblings, spouses, or children of a person with mental retardation; 5-23 (3) attorneys licensed in this state who have 5-24 knowledge of legal issues of concern to persons with mental 5-25 retardation or to the families of persons with mental retardation; 6-1 (4) members of private organizations that advocate on 6-2 behalf of persons with mental retardation; and 6-3 (5) persons with demonstrated expertise or interest in 6-4 the care and treatment of persons with mental disabilities. 6-5 (d) At least one member of the committee must be an 6-6 individual listed in Section 597.043(c)(1) or (5). 6-7 (e) A member of a committee shall participate in education 6-8 and training as required by Health and Human Services Commission 6-9 rule. 6-10 (f) Each committee shall designate a committee chair. 6-11 Sec. 597.044. APPLICATION FOR TREATMENT DECISION. (a) If 6-12 the results of the assessment conducted in accordance with Section 6-13 597.021 indicate that a client who does not have a legal guardian 6-14 or surrogate decision-maker lacks the capacity to make a treatment 6-15 decision about major medical or dental treatment, psychoactive 6-16 medication, or an aversive behavior program, the ICF-MR facility 6-17 must file an application for a treatment decision with the 6-18 department. 6-19 (b) An application must be in the form prescribed by the 6-20 department, must be signed by the applicant, and must: 6-21 (1) state that the applicant has reason to believe and 6-22 does believe that the client has a need for major medical or dental 6-23 treatment, psychoactive medication, or an aversive behavior 6-24 program; 6-25 (2) specify the condition proposed to be treated; 7-1 (3) provide a description of the proposed treatment, 7-2 including the risks and benefits to the client of the proposed 7-3 treatment; 7-4 (4) state the applicant's opinion on whether the 7-5 proposed treatment promotes the client's best interest and the 7-6 grounds for the opinion; 7-7 (5) state the client's opinion about the proposed 7-8 treatment, if known; 7-9 (6) provide any other information necessary to 7-10 determine the client's best interests regarding the treatment; and 7-11 (7) state that the client does not have a guardian of 7-12 the person and does not have a parent, spouse, child, or other 7-13 person with demonstrated interest in the care and welfare of the 7-14 client who is able and willing to become the client's guardian or 7-15 surrogate decision-maker. 7-16 Sec. 597.045. NOTICE OF REVIEW OF APPLICATION FOR TREATMENT 7-17 DECISION. (a) On receipt of an application for a treatment 7-18 decision, the department shall appoint a surrogate consent 7-19 committee. 7-20 (b) The department shall notify pro bono attorney programs 7-21 if available in the area in which the client resides of the intent 7-22 to review an application for treatment decision. 7-23 (c) The ICF-MR facility with assistance from the department 7-24 shall schedule a review of the application. 7-25 (d) The ICF-MR facility shall send notice of the date, 8-1 place, and time of the review to the surrogate consent committee, 8-2 the pro bono attorney program if available in the area in which the 8-3 client resides, the client who is the subject of the application, 8-4 the client's parent, spouse, adult child, or other person known to 8-5 have a demonstrated interest in the care and welfare of the client, 8-6 and any other person as prescribed by board rule. The ICF-MR 8-7 facility shall include a copy of the application and a statement of 8-8 the committee's procedure for consideration of the application, 8-9 including the opportunity to be heard or to present evidence and to 8-10 appeal. 8-11 Sec. 597.046. PREREVIEW OF APPLICATION. (a) Before the 8-12 date of the review of an application for a treatment decision the 8-13 committee chair shall review the application to determine whether 8-14 additional information may be necessary to assist the committee in 8-15 determining the client's best interest under the circumstances. 8-16 (b) A committee member may consult with a person who might 8-17 assist in the determination of the best interest of the client or 8-18 in learning the personal opinions, beliefs, and values of the 8-19 client. 8-20 Sec. 597.047. CONFIDENTIAL INFORMATION. Notwithstanding any 8-21 other state law, a person licensed by this state to provide 8-22 services related to health care or to the treatment or care of a 8-23 person with mental retardation, a developmental disability, or a 8-24 mental illness shall provide to the committee members any 8-25 information the committee requests that is relevant to the client's 9-1 need for a proposed treatment. 9-2 Sec. 597.048. REVIEW OF APPLICATION. (a) The committee 9-3 shall review the application at the time, place, and date provided 9-4 by the ICF-MR facility in the notice under Section 597.045. 9-5 (b) A person notified under Section 597.045 is entitled to 9-6 be present and to present evidence personally or through a 9-7 representative. 9-8 (c) The committee may take testimony or review evidence from 9-9 any person who might assist the committee in determining a client's 9-10 best interest. 9-11 (d) Formal rules of evidence do not apply to committee 9-12 proceedings. 9-13 (e) If practicable, the committee shall interview and 9-14 observe the client before making a determination of the client's 9-15 best interest, and in those cases when a client is not interviewed, 9-16 the reason must be documented in the client's record. 9-17 (f) At any time before the committee makes its determination 9-18 of a client's best interest under Section 597.049, the committee 9-19 chair shall suspend the review of the application for not more than 9-20 five days if any person applies for appointment as the client's 9-21 guardian of the person in accordance with the Texas Probate Code. 9-22 Sec. 597.049. DETERMINATION OF BEST INTEREST. (a) The 9-23 committee shall make a determination, from a preponderance of the 9-24 evidence, of whether the proposed treatment promotes the client's 9-25 best interest and a determination that: 10-1 (1) a person has not been appointed as the guardian of 10-2 the client's person before the sixth day after proceedings are 10-3 suspended under Section 597.048(f); or 10-4 (2) there is a medical necessity, based on a 10-5 preponderance of the evidence, that the determination about the 10-6 proposed treatment occur before guardianship proceedings are 10-7 completed. 10-8 (b) In making its determination of the best interest of the 10-9 client, the committee shall consider fully the preference of the 10-10 client as articulated at any time. 10-11 (c) According to its determination of the client's best 10-12 interest, the committee shall consent or refuse the treatment on 10-13 the client's behalf. 10-14 (d) The committee shall determine a date on which the 10-15 consent becomes effective. 10-16 (e) A person serving on a committee who consents or refuses 10-17 to consent on behalf of a client and who acts in good faith, 10-18 reasonably, and without malice is not criminally or civilly liable 10-19 for that action. 10-20 Sec. 597.050. NOTICE OF DETERMINATION. (a) The committee 10-21 shall issue a written opinion containing each of its determinations 10-22 and a separate statement of the committee's findings of fact. 10-23 (b) The committee shall send a copy of the committee's 10-24 opinion to: 10-25 (1) each person notified under Section 597.045; 11-1 (2) the director of the client's ICF-MR facility; and 11-2 (3) the department. 11-3 Sec. 597.051. EFFECT OF COMMITTEE'S DETERMINATION. This 11-4 chapter does not limit the availability of other lawful means of 11-5 obtaining a client's consent for medical treatment. 11-6 Sec. 597.052. SCOPE OF CONSENT. (a) The committee or the 11-7 surrogate decision-maker may consent to the release of records 11-8 related to the client's condition or treatment to facilitate 11-9 treatment to which the committee or surrogate decision-maker has 11-10 consented. 11-11 (b) The interdisciplinary team may consent to psychoactive 11-12 medication subsequent to the initial decision for administration of 11-13 psychoactive medication made by a surrogate consent committee. 11-14 Sec. 597.053. APPEALS. (a) A person notified under Section 11-15 597.045 may appeal the committee's decision by filing a petition in 11-16 the district court of the district in which the client resides or 11-17 of Travis County. The person must file the appeal not later than 11-18 the 15th day after the effective date of the committee's 11-19 determination. 11-20 (b) A copy of the petition must be served on all parties of 11-21 record in the proceedings before the committee. 11-22 (c) After considering the nature of the condition of the 11-23 client, the proposed treatment, and the need for timely medical 11-24 attention, the court may issue a temporary restraining order to 11-25 facilitate the appeal. If the order is granted, the court shall 12-1 expedite the trial. 12-2 Sec. 597.054. PROCEDURES. (a) Each ICF-MR by rule shall 12-3 develop procedures for the surrogate consent committees in 12-4 accordance with the rules adopted under Section 597.002. 12-5 (b) A committee shall phase in, during the three-year period 12-6 immediately following the effective date of this chapter, its 12-7 initial review process for applications for treatment decisions 12-8 regarding adult clients who do not have legal guardians and who are 12-9 receiving psychoactive medication. 12-10 (c) A committee is not subject to the Administrative 12-11 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas 12-12 Civil Statutes), the open meetings law, Chapter 271, Acts of the 12-13 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's 12-14 Texas Civil Statutes), or the open records law, Chapter 424, Acts 12-15 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a, 12-16 Vernon's Texas Civil Statutes). 12-17 SECTION 2. The importance of this legislation and the 12-18 crowded condition of the calendars in both houses create an 12-19 emergency and an imperative public necessity that the 12-20 constitutional rule requiring bills to be read on three several 12-21 days in each house be suspended, and this rule is hereby suspended, 12-22 and that this Act take effect and be in force from and after its 12-23 passage, and it is so enacted.