IML S.B. 414 75(R)BILL ANALYSIS
PUBLIC HEALTH
S.B. 414
By: Moncrief (Coleman)
5-08-97
Committee Report (Amended)
BACKGROUND
Currently, under Texas Law, advance directives or out-of-hospital orders
relating to the withholding or withdrawing of life-sustaining procedures
in the event of a terminal condition are governed by three separate
chapters within two different codes: Chapters 672 and 674, Health and
Safety Code, and Chapter 135, Civil Practice and Remedies Code. The three
chapters use similar terminology, have repetitive provisions, and deal
with the issue of a directive or an order withholding or withdrawing
life-sustaining procedures of an individual with a terminal condition.
Inconsistencies between the three chapters cause confusion for individuals
who want to develop advance directives or orders as well as providers who
must carry out such directives or orders. Legislation is needed to
consolidate and set forth uniform provisions governing the execution of
these advance directives or orders.
PURPOSE
S.B. 414 sets forth the conditions for execution of an advance directive
in regard to withholding or withdrawing life-sustaining procedures in the
event of a terminal condition, and redesignates the following relevant
provisions under Chapter 166, Health and Safety Code: Chapter 672, Health
and Safety Code, relating to the Natural Death Act; Chapter 676, Health
and Safety Code, relating to outof-hospital do-not-resuscitate orders; and
Chapter 135, Civil Practice and Remedies Code, relating to the durable
power-of-attorney for health care. Additionally, this bill provides for
administrative penalties.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill grants rulemaking authority
to the Texas Department of Health in SECTION 2.02 (Sec. 142.0145(c),
Health and Safety Code), SECTION 2.05 (Sec. 247.0455(c), Health and Safety
Code), and SECTION 2.06 (Sec. 248.0545(c), Health and Safety Code).
SECTION BY SECTION ANALYSIS
SECTION 1.01. Amends Subtitle H, Title 2, Health and Safety Code, by
adding a chapter heading for Chapter 166, as follows:
CHAPTER 166. ADVANCE DIRECTIVES
SECTION 1.02. Amends Subtitle H, Title 2, Health and Safety Code, by
adding Subchapter A, Chapter 166, as follows:
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 166.001. SHORT TITLE. Advance Directives Act.
Sec. 166.002. DEFINITIONS. Defines "advance directive," "attending
physician," "competent," "declarant," "durable power of attorney for
health care," "incompetent," "lifesustaining procedure," "physician,"
"terminal condition," and "witness."
Sec. 166.003. WITNESSES. Prohibits certain persons from being a witness
to the execution of an advance directive or the issuance of a nonwritten
advance directive.
Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE. Requires a health
care provider to maintain written policies regarding advance directives as
specified. Requires a health care provider to provide written notice as
specified. Requires a health care provider to provide notice as specified
if the individual is incompetent or incapacitated. Requires a health care
provider to provide notice as specified if the individual later becomes
able to receive the notice. Defines health care provider for purposes of
this section.
SECTION 1.03. Transfers Chapter 672, Health and Safety Code, to Subtitle
H, Title 2, Health and Safety Code, and redesignates as Subchapter B,
Chapter 166, Health and Safety Code, and amends as follows:
SUBCHAPTER B. NATURAL DEATH
Sec. 166.031. DEFINITIONS. Redefines "directive." Deletes definitions
of "attending physician," "competent," "declarant," "incompetent,"
"life-sustaining procedure," "physician," and "terminal condition." Makes
conforming changes.
Sec. 166.032. WRITTEN DIRECTIVE BY COMPETENT ADULT; NOTICE TO PHYSICIAN.
Deletes language prohibiting certain persons from being witnesses. Makes
conforming changes.
Sec. 166.033. FORM OF WRITTEN DIRECTIVE. Makes conforming and
nonsubstantive clarifying changes.
Sec. 166.034. ISSUANCE OF NONWRITTEN DIRECTIVE BY COMPETENT ADULT
QUALIFIED PATIENT. Makes conforming changes.
Sec. 166.035. EXECUTION OF DIRECTIVE ON BEHALF OF PATIENT YOUNGER THAN 18
YEARS OF AGE Makes a conforming change.
Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT OF SPECIFIC
FORM PROHIBITED. Provides that a written directive executed under Section
166.033 or 166.035 does not need to be notarized. Prohibits a physician,
health care facility, or health care professional from requiring that the
directive be notarized or a person use a form provided by the physician,
health care facility, or health care professional.
Sec. 166.037. PATIENT DESIRE SUPERSEDES DIRECTIVE. Makes a conforming
change.
Sec. 166.038. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF
COMMUNICATION. Makes conforming changes.
Sec. 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A
DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. Authorizes an
attending physician and the patient's legal guardian or an agent under a
durable power of attorney for health care to make a treatment decision to
withhold or withdraw lifesustaining procedures from the patient, if the
patient has not executed or issued a directive and is comatose,
incompetent, or otherwise mentally or physically incapable of
communication. Authorizes an attending physician and one person, rather
than two, from a specified category, to make a treatment decision if the
patient does not have a legal guardian or an agent under a durable power
of attorney for health care. Makes conforming changes.
Sec. 166.040. PATIENT CERTIFICATION AND PREREQUISITES FOR COMPLYING WITH
DIRECTIVE. Makes conforming changes.
Sec. 166.041. DURATION OF DIRECTIVE. Makes conforming changes.
Sec. 166.042. REVOCATION OF DIRECTIVE. Makes conforming changes.
Sec. 166.043. REEXECUTION OF DIRECTIVE. Makes conforming changes.
Sec. 166.044. EFFECT OF DIRECTIVE ON INSURANCE POLICY AND PREMIUMS. Makes
conforming changes.
Sec. 166.045. LIMITATION OF LIABILITY FOR WITHHOLDING OR WITHDRAWING
LIFE-SUSTAINING PROCEDURES. Provides that a physician or health facility
that, in good faith, causes life-sustaining procedures to be withheld or
withdrawn from a patient in accordance with this subchapter is not civilly
liable for that action. Deletes the negligent exception to such
prohibition of civil liability. Makes conforming changes.
Sec. 166.046. LIMITATION OF LIABILITY FOR FAILURE TO EFFECTUATE
DIRECTIVE. Makes a conforming change.
Sec. 166.047. HONORING DIRECTIVE DOES NOT CONSTITUTE OFFENSE OF AIDING
SUICIDE. Makes conforming changes.
Sec. 166.048. CRIMINAL PENALTY; PROSECUTION. Makes a conforming change.
Sec. 166.049. PREGNANT PATIENTS. Makes conforming changes.
Sec. 166.050. MERCY KILLING NOT CONDONED. Makes conforming changes.
Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. Makes
conforming changes.
SECTION 1.04. Transfers Chapter 674, Health and Safety Code, to Subtitle
H, Title 2, Health and Safety Code, redesignated as Subchapter C, Chapter
166, Health and Safety Code, and amends as follows:
SUBCHAPTER C. New heading: OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDERS
Sec. 166.081. DEFINITIONS. Deletes definitions of "attending physician,"
"board," "competent," "declarant," "department," "durable power of
attorney for health care," "incompetent," "life-sustaining procedure,"
"physician," and "terminal condition." Makes conforming changes.
Sec. 166.082. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE TO PHYSICIANS. Deletes
existing Subsection (c) regarding witness qualifications. Deletes
reference to Chapter 135, Civil Practice and Remedies Code. Makes
conforming changes.
Sec. 166.083. FORM OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.084. ISSUANCE OF OUT-OF-HOSPITAL DNR ORDER BY NONWRITTEN
COMMUNICATION. Deletes language regarding witness qualifications. Makes
conforming changes.
Sec. 166.085. EXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON BEHALF OF A
MINOR. Makes a conforming change.
Sec. 166.086. DESIRE OF PERSON SUPERSEDES OUT-OF-HOSPITAL DNR ORDER.
Makes conforming changes.
Sec. 166.087. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF
COMMUNICATION. Makes conforming changes.
Sec. 166.088. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED
OUTOF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION.
Deletes language in Subsection (d) regarding witness qualifications. Makes
conforming changes.
Sec. 166.089. COMPLIANCE WITH OUT-OF-HOSPITAL DNR ORDER. Makes
conforming changes.
Sec. 166.090. DNR IDENTIFICATION DEVICE. Makes conforming changes.
Sec. 166.091. DURATION OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.092. REVOCATION OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.093. REEXECUTION OF OUT-OF-HOSPITAL DNR ORDER. Makes conforming
changes.
Sec. 166.094. New heading: CONFLICT WITH NATURAL DEATH LAW OR DURABLE
POWER OF ATTORNEY FOR HEALTH CARE. Deletes reference to Chapter 135,
Civil Practice and Remedies Code. Makes conforming changes.
Sec. 166.095. EFFECT OF OUT-OF-HOSPITAL DNR ORDER ON INSURANCE POLICY AND
PREMIUMS. Makes conforming changes.
Sec. 166.096. LIMITATION ON LIABILITY FOR WITHHOLDING CARDIOPULMONARY
RESUSCITATION AND CERTAIN OTHER LIFE-SUSTAINING PROCEDURES. Makes
conforming changes.
Sec. 166.097. LIMITATION ON LIABILITY FOR FAILURE TO EFFECTUATE
OUTOF-HOSPITAL DNR ORDER. Makes a conforming change.
Sec. 166.098. HONORING OUT-OF-HOSPITAL DNR ORDER DOES NOT CONSTITUTE
OFFENSE OF AIDING SUICIDE.. Makes conforming changes.
Sec. 166.099. CRIMINAL PENALTY; PROSECUTION. Makes conforming changes.
Sec. 166.100. PREGNANT PERSONS. Makes conforming changes.
Sec. 166.101. MERCY KILLING NOT CONDONED. Makes conforming changes.
Sec. 166.102. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. Makes conforming
changes.
Sec. 166.103. DUTIES OF DEPARTMENT AND BOARD. Makes conforming changes.
Sec. 166.104. RECOGNITION OF OUT-OF-HOSPITAL DNR ORDER EXECUTED OR ISSUED
IN OTHER STATE. Makes conforming changes.
SECTION 1.05. Transfers Chapter 135, Civil Practice and Remedies Code to
Subtitle H, Title 2, Health and Safety Code, redesignated as Subchapter D,
Chapter 166, Health and Safety Code, and amends as follows:
SUBCHAPTER D. DURABLE POWER OF ATTORNEY FOR HEALTH CARE
Sec. 166.151. DEFINITIONS. Deletes definitions of "attending
physician," "capacity to make health care decisions," "durable power of
attorney for health care," "health care decision," and "physician." Makes
conforming changes.
Sec. 166.152. SCOPE AND DURATION OF AUTHORITY. Deletes language
regarding "capacity," and replaces with references to competence. Makes
conforming changes.
Sec. 166.153. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT. Makes a
conforming change.
Sec. 166.154. EXECUTION AND WITNESSES. Requires the durable power of
attorney for health care to be signed by the principal in the presence of
at least two, instead of two or more, subscribing witnesses. Requires a
witness to possess the qualifications and be subject to the restrictions
provided by Section 166.003. Deletes existing Subsection (b)(2)-(5),
regarding certain persons prohibited from being a witness. Deletes
language regarding "sound mind" and replaces with "competent." Makes
conforming changes.
Sec. 166.155. REVOCATION. Deletes language regarding "competency, or
capacity to make health care decisions" and replaces with "competent."
Makes conforming changes.
Sec. 166.156. APPOINTMENT OF GUARDIAN. Makes a conforming change.
Sec. 166.157. DISCLOSURE OF MEDICAL INFORMATION. Makes a conforming
change.
Sec. 166.158. DUTY OF HEALTH OR RESIDENTIAL CARE PROVIDER. Makes
conforming changes.
Sec. 166.159. DISCRIMINATION RELATING TO EXECUTION OF DURABLE POWER OF
ATTORNEY FOR HEALTH CARE. Makes a conforming change.
Sec. 166.160. LIMITATION ON LIABILITY. Makes conforming changes.
Sec. 166.161. LIABILITY FOR HEALTH CARE COSTS. Makes a conforming
change.
Sec. 166.162. New heading: NATURAL DEATH LAW. Deletes references to the
Natural Death Act and makes conforming changes.
Sec. 166.163. ENFORCEABILITY OF DURABLE POWER OF ATTORNEY EXECUTED IN
ANOTHER JURISDICTION. Makes conforming changes.
Sec. 166.164. DISCLOSURE STATEMENT. Makes a conforming change.
Sec. 166.165. FORM OF DISCLOSURE STATEMENT. Deletes certain language on
the form of the disclosure statement, and adds language to conform with
the provisions of this Act.
Sec. 166.166. FORM OF DURABLE POWER OF ATTORNEY. Deletes certain
declarations in the durable power of attorney statement and adds language
to conform with the provisions of this Act.
Sec. 166.167. CIVIL ACTION. Replaces reference to "sound mind to make a
health care decision" with "competent." Makes a conforming change.
Sec. 166.168. OTHER RIGHTS OR RESPONSIBILITIES NOT AFFECTED. Makes
conforming changes.
SECTION 2.01. Amends Section 313.003(a), Health and Safety Code, to make
conforming amendments.
SECTION 2.02. Amends Subchapter A, Chapter 142, Health and Safety Code,
by adding Section 142.0145, as follows:
Sec.142.0145. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. Requires
the Texas Department of Health (department) to assess an administrative
penalty against a home and community support services agency that violates
Section 166.004, as specified. Requires the penalty to be assessed in
accordance with department rules, which must provide for notice and
hearing.
SECTION 2.03. Amends Section 241.059(a) and (c), Health and Safety Code,
to require the commissioner of health (commissioner) to assess an
administrative penalty against a hospital that violates Section 166.004,
as specified.
SECTION 2.04. Amends Subchapter C, Chapter 242, Health and Safety Code,
by adding Section 242.071, as follows:
Sec. 242.071. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. Requires
the commissioner to assess an administrative penalty against an
institution that violates Section 166.004, as specified.
SECTION 2.05. Amends Subchapter C, Chapter 247, Health and Safety Code,
by adding Section 247.0455, as follows:
Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. Requires
the department to assess an administrative penalty against a personal care
facility that violates Section 166.004, as specified. Requires the
penalty to be assessed in accordance with department rules, which must
provide for notice and hearing.
SECTION 2.06. Amends Subchapter C, Chapter 248, Health and Safety Code,
by adding Section 248.0545, as follows:
Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. Requires
the department to assess an administrative penalty against a special care
facility that violates Section 166.004, as specified. Requires the
penalty to be assessed in accordance with department rules, which must
provide for notice and hearing.
SECTION 3.01. Effective date is January 1, 1998.
SECTION 3.02. Makes application of this Act prospective regarding the
validity of a document.
SECTION 3.03. Makes application of this Act prospective regarding
offenses.
SECTION 3.04. Emergency clause.
EXPLANATION OF AMENDMENTS
The amendment to SB 414 makes the following changes:
Subdivision (1) For clarification.
Subdivision (2) For clarification.
Subdivision (3) Subdivision (C), "a durable power of attorney for health
care" is added to conform with the intent of this Act.
Subdivision (4) Clarifies the definition of "durable power of attorney
for health care."
Subdivision (5) Strikes certain language and adds language to allow a
patient in a facility to act as a witness.
Subdivision (6) Refers to Subdivision (12).
Subdivision (7) For clarification and to conform with the intent of
this Act.
Subdivision (8)-(11) Renumbers to conform with Subdivision (7).
Subdivision (12) Adds Subsection (g) to conform with federal law.
Subdivision (13) Strikes certain language to allow a patient in a
facility to act as a witness.
Subdivision (14) Conforms with HB 880.
Subdivision (15) For clarification.
Subdivision (16)-(17) Renumbers to conform with Subdivision (15).
Subdivision (18) For clarification.
Subdivision (19) Strikes certain language to allow a patient in a
facility to act as a witness.
Subdivision (20) Renumbers to conform with Subdivision (19).
Subdivision (21) Strikes language to conform with the intent of this Act.
Subdivision (22) Strikes certain language to allow a patient in a
facility to act as a witness.