1-1 By: Moncrief S.B. No. 85
1-2 (In the Senate - Filed November 12, 1996; January 14, 1997,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; February 12, 1997, reported favorably by the following
1-5 vote: Yeas 11, Nays 0; February 12, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to surrogate decision making.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Subsections (c) and (f), Section 597.043, Health
1-11 and Safety Code, are amended to read as follows:
1-12 (c) The list of qualified individuals from which committee
1-13 members are drawn shall include:
1-14 (1) health care professionals licensed or registered
1-15 in this state who have specialized training in medicine,
1-16 psychopharmacology, nursing, or psychology;
1-17 (2) persons with mental retardation or parents,
1-18 siblings, spouses, or children of a person with mental retardation;
1-19 (3) attorneys licensed in this state who have
1-20 knowledge of legal issues of concern to persons with mental
1-21 retardation or to the families of persons with mental retardation;
1-22 (4) members of private organizations that advocate on
1-23 behalf of persons with mental retardation; and
1-24 (5) persons with demonstrated expertise or interest in
1-25 the care and treatment of persons with mental disabilities.
1-26 (f) The department [Each committee] shall designate a
1-27 committee chair.
1-28 SECTION 2. Subsection (b), Section 597.044, Health and
1-29 Safety Code, is amended to read as follows:
1-30 (b) An application must be in the form prescribed by the
1-31 department, must be signed by the applicant, and must:
1-32 (1) state that the applicant has reason to believe and
1-33 does believe that the client has a need for major medical or dental
1-34 treatment, psychoactive medication, or a highly restrictive
1-35 procedure;
1-36 (2) specify the condition proposed to be treated;
1-37 (3) provide a description of the proposed treatment,
1-38 including the risks and benefits to the client of the proposed
1-39 treatment;
1-40 (4) provide a description of generally accepted
1-41 alternatives to the proposed treatment, including the risks and
1-42 potential benefits to the client of the alternatives, and the
1-43 reasons the alternatives were rejected;
1-44 (5) state the applicant's opinion on whether the
1-45 proposed treatment promotes the client's best interest and the
1-46 grounds for the opinion;
1-47 (6) [(5)] state the client's opinion about the
1-48 proposed treatment, if known;
1-49 (7) [(6)] provide any other information necessary to
1-50 determine the client's best interests regarding the treatment; and
1-51 (8) [(7)] state that the client does not have a
1-52 guardian of the person and does not have a parent, spouse, child,
1-53 or other person with demonstrated interest in the care and welfare
1-54 of the client who is able and willing to become the client's
1-55 guardian or surrogate decision-maker.
1-56 SECTION 3. Section 597.045, Health and Safety Code, is
1-57 amended to read as follows:
1-58 Sec. 597.045. NOTICE OF REVIEW OF APPLICATION FOR TREATMENT
1-59 DECISION. (a) Following [On] receipt of an application for a
1-60 treatment decision that meets the requirements of Section
1-61 597.044(b), the department shall appoint a surrogate consent
1-62 committee.
1-63 (b) [The department shall notify pro bono attorney programs
1-64 if available in the area in which the client resides of the intent
2-1 to review an application for treatment decision.]
2-2 [(c)] The ICF-MR facility with assistance from the
2-3 department shall schedule a review of the application.
2-4 (c) [(d)] The ICF-MR facility with assistance from the
2-5 department shall send notice of the date, place, and time of the
2-6 review to the surrogate consent committee, [the pro bono attorney
2-7 program if available in the area in which the client resides,] the
2-8 client who is the subject of the application, the client's actively
2-9 involved parent, spouse, adult child, or other person known to have
2-10 a demonstrated interest in the care and welfare of the client, and
2-11 any other person as prescribed by board rule. The ICF-MR facility
2-12 shall include a copy of the application and a statement of the
2-13 committee's procedure for consideration of the application,
2-14 including the opportunity to be heard or to present evidence and to
2-15 appeal.
2-16 SECTION 4. Subsection (c), Section 597.046, Health and
2-17 Safety Code, is amended to read as follows:
2-18 (c) If a committee that does not include in its membership
2-19 an individual listed in Section 597.043(c)(1) is to review an
2-20 application for a treatment decision about psychoactive medication,
2-21 the department [committee chair] shall provide consultation
2-22 [consult] with a health care professional licensed or registered in
2-23 this state to assist the committee in the determination of the best
2-24 interest of the client.
2-25 SECTION 5. Subsections (a), (e), and (f), Section 597.048,
2-26 Health and Safety Code, are amended to read as follows:
2-27 (a) The committee shall review the application at the time,
2-28 place, and date provided [by the ICF-MR facility] in the notice
2-29 under Section 597.045.
2-30 (e) If practicable, the committee shall interview and
2-31 observe the client before making a determination of the client's
2-32 best interest, and in those cases when a client is not interviewed,
2-33 the reason must be documented in the committee's [client's] record.
2-34 (f) At any time before the committee makes its determination
2-35 of a client's best interest under Section 597.049, the committee
2-36 chair may [shall] suspend the review of the application for not
2-37 more than five days if any person applies for appointment as the
2-38 client's guardian of the person in accordance with the Texas
2-39 Probate Code.
2-40 SECTION 6. Subsection (d), Section 597.049, Health and
2-41 Safety Code, is amended to read as follows:
2-42 (d) The committee shall determine a date on which the
2-43 consent becomes effective and a date on which the consent expires.
2-44 SECTION 7. Subsection (b), Section 597.050, Health and
2-45 Safety Code, is amended to read as follows:
2-46 (b) The ICF-MR facility [committee] shall send a copy of the
2-47 committee's opinion to:
2-48 (1) each person notified under Section 597.045; and
2-49 (2) [the director of the client's ICF-MR facility; and]
2-50 [(3)] the department.
2-51 SECTION 8. Subsection (b), Section 597.052, Health and
2-52 Safety Code, is amended to read as follows:
2-53 (b) The interdisciplinary team may consent to psychoactive
2-54 medication subsequent to the initial consent [decision] for
2-55 administration of psychoactive medication made by a surrogate
2-56 consent committee in accordance with rules of the department until
2-57 the expiration date of the consent.
2-58 SECTION 9. Section 597.054, Health and Safety Code, is
2-59 amended to read as follows:
2-60 Sec. 597.054. PROCEDURES. (a) Each ICF-MR shall develop
2-61 procedures for the surrogate consent committees in accordance with
2-62 the rules adopted under Section 597.002.
2-63 (b) [A committee shall phase in, during the three-year
2-64 period immediately following the effective date of this chapter,
2-65 its initial review process for applications for treatment decisions
2-66 regarding adult clients who do not have legal guardians and who are
2-67 receiving psychoactive medication.]
2-68 [(c)] A committee is not subject to Chapter 2001, Government
2-69 Code, Chapter 551, Government Code, or Chapter 552, Government
3-1 Code.
3-2 SECTION 10. Section 597.055, Health and Safety Code, is
3-3 repealed.
3-4 SECTION 11. The importance of this legislation and the
3-5 crowded condition of the calendars in both houses create an
3-6 emergency and an imperative public necessity that the
3-7 constitutional rule requiring bills to be read on three several
3-8 days in each house be suspended, and this rule is hereby suspended,
3-9 and that this Act take effect and be in force from and after its
3-10 passage, and it is so enacted.
3-11 * * * * *