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.