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.