1-1 By: Moncrief S.B. No. 1142
1-2 (In the Senate - Filed March 12, 1993; March 15, 1993, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 21, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 21, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR S.B. No. 1142 By: Moncrief, Truan
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to surrogate decision making for certain clients of an
1-22 intermediate care facility serving persons with mental retardation
1-23 or related conditions.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Subtitle D, Title 7, Health and Safety Code, is
1-26 amended by adding Chapter 597 to read as follows:
1-27 CHAPTER 597. CAPACITY OF CLIENTS TO CONSENT TO TREATMENT
1-28 SUBCHAPTER A. GENERAL PROVISIONS
1-29 Sec. 597.001. DEFINITIONS. In this chapter:
1-30 (1) "Highly restrictive procedure" means the
1-31 application of aversive stimuli, exclusionary time-out, physical
1-32 restraint, or a requirement to engage in an effortful task.
1-33 (2) "Client" means a person receiving services in a
1-34 community-based ICF-MR facility.
1-35 (3) "Committee" means a surrogate consent committee
1-36 established under Section 597.042.
1-37 (4) "ICF-MR" has the meaning assigned by Section
1-38 531.002.
1-39 (5) "Interdisciplinary team" means those
1-40 interdisciplinary teams defined in the Code of Federal Regulations
1-41 for participation in the intermediate care facilities for the
1-42 mentally retarded.
1-43 (6) "Major medical and dental treatment" means a
1-44 medical, surgical, dental, or diagnostic procedure or intervention
1-45 that:
1-46 (A) has a significant recovery period;
1-47 (B) presents a significant risk;
1-48 (C) employs a general anesthetic; or
1-49 (D) in the opinion of the primary physician,
1-50 involves a significant invasion of bodily integrity that requires
1-51 the extraction of bodily fluids or an incision or that produces
1-52 substantial pain, discomfort, or debilitation.
1-53 (7) "Psychoactive medication" means any medication
1-54 prescribed for the treatment of symptoms of psychosis or other
1-55 severe mental or emotional disorders and that is used to exercise
1-56 an effect upon the central nervous system for the purposes of
1-57 influencing and modifying behavior, cognition, or affective state.
1-58 (8) "Surrogate decision-maker" means an individual
1-59 authorized under Section 597.041 to consent on behalf of a client
1-60 residing in an ICF-MR facility.
1-61 Sec. 597.002. RULES. The board may adopt rules necessary to
1-62 implement this chapter not later than 180 days after its effective
1-63 date.
1-64 Sec. 597.003. EXCEPTIONS. (a) This chapter does not apply
1-65 to decisions for the following:
1-66 (1) experimental research;
1-67 (2) abortion;
1-68 (3) sterilization;
2-1 (4) management of client funds; and
2-2 (5) electroconvulsive treatment.
2-3 (b) This chapter does not apply to campus-based facilities
2-4 operated by the department.
2-5 (Sections 597.004 to 597.020 reserved for expansion
2-6 SUBCHAPTER B. ASSESSMENT OF CLIENT'S CAPACITY;
2-7 INCAPACITATED CLIENTS WITHOUT GUARDIANS
2-8 Sec. 597.021. ICF-MR ASSESSMENT OF CLIENT'S CAPACITY TO
2-9 CONSENT TO TREATMENT. (a) The board by rule shall require an
2-10 ICF-MR facility certified in this state to assess the capacity of
2-11 each adult client without a legal guardian to make treatment
2-12 decisions when there is evidence to suggest the individual is not
2-13 capable of making a decision covered under this chapter.
2-14 (b) The rules must require the use of a uniform assessment
2-15 process prescribed by board rule to determine a client's capacity
2-16 to make treatment decisions.
2-17 (Sections 597.022 to 597.040 reserved for expansion
2-18 SUBCHAPTER C. SURROGATE CONSENT FOR ICF-MR CLIENTS
2-19 Sec. 597.041. SURROGATE DECISION-MAKERS. (a) If the
2-20 results of an assessment conducted in accordance with Section
2-21 597.021 indicate that an adult client who does not have a legal
2-22 guardian or a client under 18 years of age who has no parent, legal
2-23 guardian, or managing or possessory conservator lacks the capacity
2-24 to make a major medical or dental treatment decision, an adult
2-25 surrogate from the following list, in order of descending
2-26 preference, who has decision-making capacity and who is willing to
2-27 consent on behalf of the client may consent to major medical or
2-28 dental treatment on behalf of the client:
2-29 (1) an actively involved spouse;
2-30 (2) an actively involved adult child who has the
2-31 waiver and consent of all other actively involved adult children of
2-32 the client to act as the sole decision-maker;
2-33 (3) an actively involved parent or stepparent;
2-34 (4) an actively involved adult sibling who has the
2-35 waiver and consent of all other actively involved adult siblings of
2-36 the client to act as the sole decision-maker; and
2-37 (5) any other actively involved adult relative who has
2-38 the waiver and consent of all other actively involved adult
2-39 relatives of the client to act as the sole decision-maker.
2-40 (b) Any person who consents on behalf of a client and who
2-41 acts in good faith, reasonably, and without malice is not
2-42 criminally or civilly liable for that action.
2-43 (c) Consent given by the surrogate decision-maker is valid
2-44 and competent to the same extent as if the client had the capacity
2-45 to consent and had consented.
2-46 (d) Any dispute as to the right of a party to act as a
2-47 surrogate decision-maker may be resolved only by a court of record
2-48 under Chapter V, Texas Probate Code.
2-49 Sec. 597.042. SURROGATE CONSENT COMMITTEE ESTABLISHED;
2-50 DEPARTMENTAL SUPPORT. (a) For cases in which there is no guardian
2-51 or surrogate decision-maker available, the department shall
2-52 establish and maintain a list of individuals qualified to serve on
2-53 a surrogate consent committee.
2-54 (b) The department shall provide the staff and assistance
2-55 necessary to perform the duties prescribed by this subchapter.
2-56 Sec. 597.043. COMMITTEE MEMBERSHIP. (a) A surrogate
2-57 consent committee considering an application for a treatment
2-58 decision shall be composed of at least three but not more than five
2-59 members, and consent on behalf of clients shall be based on
2-60 consensus of the members.
2-61 (b) A committee considering an application for a treatment
2-62 decision must consist of individuals who:
2-63 (1) are not employees of the facility;
2-64 (2) do not provide contractual services to the
2-65 facility;
2-66 (3) do not manage or exercise supervisory control
2-67 over:
2-68 (A) the facility or the employees of the
2-69 facility; or
2-70 (B) any company, corporation, or other legal
3-1 entity that manages or exercises control over the facility or the
3-2 employees of the facility;
3-3 (4) do not have a financial interest in the facility
3-4 or in any company, corporation, or other legal entity that has a
3-5 financial interest in the facility; and
3-6 (5) are not related to the client.
3-7 (c) The list of qualified individuals from which committee
3-8 members are drawn shall include:
3-9 (1) health care professionals licensed or registered
3-10 in this state who have specialized training in medicine,
3-11 psychopharmacology, or psychology;
3-12 (2) persons with mental retardation or parents,
3-13 siblings, spouses, or children of a person with mental retardation;
3-14 (3) attorneys licensed in this state who have
3-15 knowledge of legal issues of concern to persons with mental
3-16 retardation or to the families of persons with mental retardation;
3-17 (4) members of private organizations that advocate on
3-18 behalf of persons with mental retardation; and
3-19 (5) persons with demonstrated expertise or interest in
3-20 the care and treatment of persons with mental disabilities.
3-21 (d) At least one member of the committee must be an
3-22 individual listed in Subsection (c)(1) or (5).
3-23 (e) A member of a committee shall participate in education
3-24 and training as required by department rule.
3-25 (f) Each committee shall designate a committee chair.
3-26 Sec. 597.044. APPLICATION FOR TREATMENT DECISION. (a) If
3-27 the results of the assessment conducted in accordance with Section
3-28 597.021 indicate that a client who does not have a legal guardian
3-29 or surrogate decision-maker lacks the capacity to make a treatment
3-30 decision about major medical or dental treatment, psychoactive
3-31 medication, or a highly restrictive procedure, the ICF-MR facility
3-32 must file an application for a treatment decision with the
3-33 department.
3-34 (b) An application must be in the form prescribed by the
3-35 department, must be signed by the applicant, and must:
3-36 (1) state that the applicant has reason to believe and
3-37 does believe that the client has a need for major medical or dental
3-38 treatment, psychoactive medication, or a highly restrictive
3-39 procedure;
3-40 (2) specify the condition proposed to be treated;
3-41 (3) provide a description of the proposed treatment,
3-42 including the risks and benefits to the client of the proposed
3-43 treatment;
3-44 (4) state the applicant's opinion on whether the
3-45 proposed treatment promotes the client's best interest and the
3-46 grounds for the opinion;
3-47 (5) state the client's opinion about the proposed
3-48 treatment, if known;
3-49 (6) provide any other information necessary to
3-50 determine the client's best interests regarding the treatment; and
3-51 (7) state that the client does not have a guardian of
3-52 the person and does not have a parent, spouse, child, or other
3-53 person with demonstrated interest in the care and welfare of the
3-54 client who is able and willing to become the client's guardian or
3-55 surrogate decision-maker.
3-56 Sec. 597.045. NOTICE OF REVIEW OF APPLICATION FOR TREATMENT
3-57 DECISION. (a) On receipt of an application for a treatment
3-58 decision, the department shall appoint a surrogate consent
3-59 committee.
3-60 (b) The department shall notify pro bono attorney programs
3-61 if available in the area in which the client resides of the intent
3-62 to review an application for treatment decision.
3-63 (c) The ICF-MR facility with assistance from the department
3-64 shall schedule a review of the application.
3-65 (d) The ICF-MR facility shall send notice of the date,
3-66 place, and time of the review to the surrogate consent committee,
3-67 the pro bono attorney program if available in the area in which the
3-68 client resides, the client who is the subject of the application,
3-69 the client's parent, spouse, adult child, or other person known to
3-70 have a demonstrated interest in the care and welfare of the client,
4-1 and any other person as prescribed by board rule. The ICF-MR
4-2 facility shall include a copy of the application and a statement of
4-3 the committee's procedure for consideration of the application,
4-4 including the opportunity to be heard or to present evidence and to
4-5 appeal.
4-6 Sec. 597.046. PREREVIEW OF APPLICATION. (a) Before the
4-7 date of the review of an application for a treatment decision the
4-8 committee chair shall review the application to determine whether
4-9 additional information may be necessary to assist the committee in
4-10 determining the client's best interest under the circumstances.
4-11 (b) A committee member may consult with a person who might
4-12 assist in the determination of the best interest of the client or
4-13 in learning the personal opinions, beliefs, and values of the
4-14 client.
4-15 (c) If a committee that does not include in its membership
4-16 an individual listed in Section 597.043(c)(1) is to review an
4-17 application for a treatment decision about psychoactive medication,
4-18 the committee chair shall consult with a health care professional
4-19 licensed or registered in this state to assist the committee in the
4-20 determination of the best interest of the client.
4-21 Sec. 597.047. CONFIDENTIAL INFORMATION. Notwithstanding any
4-22 other state law, a person licensed by this state to provide
4-23 services related to health care or to the treatment or care of a
4-24 person with mental retardation, a developmental disability, or a
4-25 mental illness shall provide to the committee members any
4-26 information the committee requests that is relevant to the client's
4-27 need for a proposed treatment.
4-28 Sec. 597.048. REVIEW OF APPLICATION. (a) The committee
4-29 shall review the application at the time, place, and date provided
4-30 by the ICF-MR facility in the notice under Section 597.045.
4-31 (b) A person notified under Section 597.045 is entitled to
4-32 be present and to present evidence personally or through a
4-33 representative.
4-34 (c) The committee may take testimony or review evidence from
4-35 any person who might assist the committee in determining a client's
4-36 best interest.
4-37 (d) Formal rules of evidence do not apply to committee
4-38 proceedings.
4-39 (e) If practicable, the committee shall interview and
4-40 observe the client before making a determination of the client's
4-41 best interest, and in those cases when a client is not interviewed,
4-42 the reason must be documented in the client's record.
4-43 (f) At any time before the committee makes its determination
4-44 of a client's best interest under Section 597.049, the committee
4-45 chair shall suspend the review of the application for not more than
4-46 five days if any person applies for appointment as the client's
4-47 guardian of the person in accordance with the Texas Probate Code.
4-48 Sec. 597.049. DETERMINATION OF BEST INTEREST. (a) The
4-49 committee shall make a determination, based on clear and convincing
4-50 evidence, of whether the proposed treatment promotes the client's
4-51 best interest and a determination that:
4-52 (1) a person has not been appointed as the guardian of
4-53 the client's person before the sixth day after proceedings are
4-54 suspended under Section 597.048(f); or
4-55 (2) there is a medical necessity, based on clear and
4-56 convincing evidence, that the determination about the proposed
4-57 treatment occur before guardianship proceedings are completed.
4-58 (b) In making its determination of the best interest of the
4-59 client, the committee shall consider fully the preference of the
4-60 client as articulated at any time.
4-61 (c) According to its determination of the client's best
4-62 interest, the committee shall consent or refuse the treatment on
4-63 the client's behalf.
4-64 (d) The committee shall determine a date on which the
4-65 consent becomes effective.
4-66 (e) A person serving on a committee who consents or refuses
4-67 to consent on behalf of a client and who acts in good faith,
4-68 reasonably, and without malice is not criminally or civilly liable
4-69 for that action.
4-70 Sec. 597.050. NOTICE OF DETERMINATION. (a) The committee
5-1 shall issue a written opinion containing each of its determinations
5-2 and a separate statement of the committee's findings of fact.
5-3 (b) The committee shall send a copy of the committee's
5-4 opinion to:
5-5 (1) each person notified under Section 597.045;
5-6 (2) the director of the client's ICF-MR facility; and
5-7 (3) the department.
5-8 Sec. 597.051. EFFECT OF COMMITTEE'S DETERMINATION. This
5-9 chapter does not limit the availability of other lawful means of
5-10 obtaining a client's consent for medical treatment.
5-11 Sec. 597.052. SCOPE OF CONSENT. (a) The committee or the
5-12 surrogate decision-maker may consent to the release of records
5-13 related to the client's condition or treatment to facilitate
5-14 treatment to which the committee or surrogate decision-maker has
5-15 consented.
5-16 (b) The interdisciplinary team may consent to psychoactive
5-17 medication subsequent to the initial decision for administration of
5-18 psychoactive medication made by a surrogate consent committee.
5-19 (c) Unless another decision-making mechanism is provided for
5-20 by law, a client, a client's authorized surrogate decision-maker if
5-21 available, or the client's interdisciplinary team may consent to
5-22 decisions which involve risk to client protection and rights not
5-23 specifically reserved to surrogate decision-makers or surrogate
5-24 consent committees.
5-25 Sec. 597.053. APPEALS. (a) A person notified under Section
5-26 597.045 may appeal the committee's decision by filing a petition in
5-27 the probate court or court having probate jurisdiction for the
5-28 county in which the client resides or in Travis County. The person
5-29 must file the appeal not later than the 15th day after the
5-30 effective date of the committee's determination.
5-31 (b) If the hearing is to be held in a probate court in which
5-32 the judge is not a licensed attorney, the person filing the appeal
5-33 may request that the proceeding be transferred to a court with a
5-34 judge who is licensed to practice law in this state. The probate
5-35 court judge shall transfer the case after receiving the request,
5-36 and the receiving court shall hear the case as if it had been
5-37 originally filed in that court.
5-38 (c) A copy of the petition must be served on all parties of
5-39 record in the proceedings before the committee.
5-40 (d) After considering the nature of the condition of the
5-41 client, the proposed treatment, and the need for timely medical
5-42 attention, the court may issue a temporary restraining order to
5-43 facilitate the appeal. If the order is granted, the court shall
5-44 expedite the trial.
5-45 Sec. 597.054. PROCEDURES. (a) Each ICF-MR shall develop
5-46 procedures for the surrogate consent committees in accordance with
5-47 the rules adopted under Section 597.002.
5-48 (b) A committee shall phase in, during the three-year period
5-49 immediately following the effective date of this chapter, its
5-50 initial review process for applications for treatment decisions
5-51 regarding adult clients who do not have legal guardians and who are
5-52 receiving psychoactive medication.
5-53 (c) A committee is not subject to the Administrative
5-54 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
5-55 Civil Statutes), the open meetings law, Chapter 271, Acts of the
5-56 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
5-57 Texas Civil Statutes), or the open records law, Chapter 424, Acts
5-58 of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
5-59 Vernon's Texas Civil Statutes).
5-60 Sec. 597.055. EXPIRATION. This chapter expires August 31,
5-61 1997.
5-62 SECTION 2. The importance of this legislation and the
5-63 crowded condition of the calendars in both houses create an
5-64 emergency and an imperative public necessity that the
5-65 constitutional rule requiring bills to be read on three several
5-66 days in each house be suspended, and this rule is hereby suspended,
5-67 and that this Act take effect and be in force from and after its
5-68 passage, and it is so enacted.
5-69 * * * * *
5-70 Austin,
6-1 Texas
6-2 April 21, 1993
6-3 Hon. Bob Bullock
6-4 President of the Senate
6-5 Sir:
6-6 We, your Committee on Health and Human Services to which was
6-7 referred S.B. No. 1142, have had the same under consideration, and
6-8 I am instructed to report it back to the Senate with the
6-9 recommendation that it do not pass, but that the Committee
6-10 Substitute adopted in lieu thereof do pass and be printed.
6-11 Zaffirini,
6-12 Chair
6-13 * * * * *
6-14 WITNESSES
6-15 FOR AGAINST ON
6-16 ___________________________________________________________________
6-17 Name: Carole Smith x
6-18 Representing: Tx DMHMR
6-19 City: Austin
6-20 -------------------------------------------------------------------
6-21 Name: John W. Holterman x
6-22 Representing: Tx Silver Haired Legislation
6-23 City: San Marcos
6-24 -------------------------------------------------------------------
6-25 Name: Phill Parmiel x
6-26 Representing: Tx Silver Haired Legislators
6-27 City: Sunrise Beach
6-28 -------------------------------------------------------------------
6-29 Name: Spencer McGlure x
6-30 Representing: Tx Council of Comm MHMR
6-31 City: Austin
6-32 -------------------------------------------------------------------
6-33 Name: Mary Jo Magruder x
6-34 Representing: Tx Planning Council For
6-35 City: Austin
6-36 -------------------------------------------------------------------
6-37 Name: Maury Peterson x
6-38 Representing: Self
6-39 City: Austin
6-40 -------------------------------------------------------------------
6-41 Name: Greg Simpson x
6-42 Representing: Self
6-43 City: Austin
6-44 -------------------------------------------------------------------
6-45 Name: Genelle Edwards x
6-46 Representing: Private Provider Asso. of Tx
6-47 City: Corsicana
6-48 -------------------------------------------------------------------
6-49 Name: Carolyn Bivins x
6-50 Representing: TDPRS
6-51 City: Austin
6-52 -------------------------------------------------------------------
6-53 Name: Barrett Markland x
6-54 Representing: Advocacy, Inc.
6-55 City: Austin
6-56 -------------------------------------------------------------------
6-57 Name: Robin Herskowitz x
6-58 Representing: Private Privider Association
6-59 City: Austin
6-60 -------------------------------------------------------------------
6-61 Name: Jan Thompson x
6-62 Representing: Tx Health Care Asso.
6-63 City: Austin
6-64 -------------------------------------------------------------------
6-65 FOR AGAINST ON
6-66 ___________________________________________________________________
6-67 Name: Mike Bright x
6-68 Representing: Asso. For Retarded Citizens
6-69 City: Austin
6-70 -------------------------------------------------------------------