76R10243 DLF-F
By Lewis of Tarrant H.B. No. 1270
Substitute the following for H.B. No. 1270:
By Gray C.S.H.B. No. 1270
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to surrogate decision-making for an adult patient in a
1-3 hospital or nursing home.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 313.004, Health and Safety Code, is
1-6 amended by amending Subsections (a) and (d) and adding Subsections
1-7 (e) and (f) to read as follows:
1-8 (a) If an adult patient in a hospital or nursing home is
1-9 comatose, incapacitated, or otherwise mentally or physically
1-10 incapable of communication and does not have a guardian of the
1-11 person or an advance directive made under law that authorizes
1-12 another person to make medical treatment decisions on behalf of the
1-13 adult patient, an adult surrogate from the following list, in order
1-14 of priority, who has decision-making capacity, is available after a
1-15 reasonably diligent inquiry, and is willing to consent to medical
1-16 treatment on behalf of the patient may consent to medical treatment
1-17 on behalf of the patient:
1-18 (1) the patient's spouse;
1-19 (2) an adult child of the patient who has the waiver
1-20 and consent of all other qualified adult children of the patient to
1-21 act as the sole decision-maker;
1-22 (3) a majority of the patient's reasonably available
1-23 adult children;
1-24 (4) the patient's parents; [or]
2-1 (5) the individual clearly identified to act for the
2-2 patient by the patient before the patient became incapacitated
2-3 or[,] the patient's nearest living relative;
2-4 (6) another adult who the attending physician
2-5 determines has had substantial past contact with the patient
2-6 sufficient to warrant standing to consent to medical treatment on
2-7 behalf of the patient;
2-8 (7) [, or] a member of the clergy who has established
2-9 a relationship with the patient; or
2-10 (8) the surrogate decision-making committee
2-11 established by the hospital or nursing home under Subchapter B.
2-12 (d) Notwithstanding any other provision of this chapter, a
2-13 surrogate decision-maker may not consent to:
2-14 (1) voluntary inpatient mental health services;
2-15 (2) electro-convulsive treatment; [or]
2-16 (3) experimental research;
2-17 (4) abortion;
2-18 (5) sterilization;
2-19 (6) the appointment of another surrogate
2-20 decision-maker; or
2-21 (7) acts relating to the management of client funds.
2-22 (e) A surrogate decision-maker or surrogate decision-making
2-23 committee may consent to the release of records related to the
2-24 adult patient's condition or treatment to facilitate treatment to
2-25 which the decision-maker or committee has consented. Unless another
2-26 decision-making mechanism is provided for by law, an adult patient
2-27 or a patient's authorized surrogate decision-maker, if available,
3-1 may consent to a decision that involves risks to the patient and
3-2 other rights not specifically reserved to a surrogate
3-3 decision-maker or surrogate decision-making committee.
3-4 (f) The Texas Board of Human Services, in consultation with
3-5 the Texas Board of Health, shall adopt rules that govern the
3-6 circumstances in which a person described by Subsection (a)(6) or
3-7 (7) may act as a surrogate decision-maker. The rules must govern:
3-8 (1) the type of documentation that must be maintained
3-9 in the patient's medical record;
3-10 (2) acceptable evidence of a substantial past contact
3-11 or establishment of a relationship that warrants a person acting as
3-12 a surrogate decision-maker under Subsection (a)(6) or (7); and
3-13 (3) persons who may not act as surrogate
3-14 decision-makers under Subsection (a)(6) or (7) because of:
3-15 (A) the person's role as a provider of services
3-16 to the patient;
3-17 (B) the person's relationship with the hospital
3-18 or nursing home; or
3-19 (C) other circumstances that could result in a
3-20 conflict of interest.
3-21 SECTION 2. Section 313.007(a), Health and Safety Code, is
3-22 amended to read as follows:
3-23 (a) A surrogate decision-maker, including any member of a
3-24 surrogate decision-making committee established under this
3-25 subchapter, is not subject to criminal or civil liability for
3-26 consenting to medical care under this chapter if the consent is
3-27 made in good faith.
4-1 SECTION 3. Chapter 313, Health and Safety Code, is amended
4-2 by adding Subchapter B to read as follows:
4-3 SUBCHAPTER B. SURROGATE DECISION-MAKING COMMITTEES
4-4 Sec. 313.051. COMPOSITION OF SURROGATE DECISION-MAKING
4-5 COMMITTEE. (a) The Texas Board of Human Services, in consultation
4-6 with the Texas Board of Health, shall establish and maintain a list
4-7 of persons who are qualified to:
4-8 (1) serve on a surrogate decision-making committee
4-9 established by a hospital or a nursing home under this subchapter;
4-10 and
4-11 (2) serve as the presiding officer of a committee.
4-12 (b) A surrogate decision-making committee must be composed
4-13 of at least three but not more than five members. The committee may
4-14 act only on the consensus of all members.
4-15 (c) A person is not eligible to serve on a surrogate
4-16 decision-making committee if the person:
4-17 (1) is an employee of the hospital or nursing home in
4-18 which the patient is receiving services;
4-19 (2) provides services under contract to the hospital
4-20 or nursing home;
4-21 (3) manages or exercises supervisory authority over:
4-22 (A) the hospital or nursing home or the
4-23 employees of the hospital or nursing home; or
4-24 (B) another person that manages or exercises
4-25 control over the hospital or nursing home;
4-26 (4) has a financial interest in:
4-27 (A) the hospital or nursing home; or
5-1 (B) another person that has a financial interest
5-2 in the hospital or nursing home; or
5-3 (5) is related to the patient.
5-4 (d) The list of qualified persons from which committee
5-5 members are drawn must include:
5-6 (1) health care professionals licensed or registered
5-7 in this state who have specialized training in medicine,
5-8 psychopharmacology, nursing, or psychology;
5-9 (2) persons who have been nursing home residents or
5-10 hospital patients or the parents, siblings, spouses, or children of
5-11 nursing home residents or hospital patients;
5-12 (3) attorneys licensed in this state who have
5-13 knowledge of legal issues relevant to nursing home residents or
5-14 hospital patients;
5-15 (4) members of private organizations that advocate on
5-16 behalf of residents of nursing homes or hospital patients; and
5-17 (5) persons with demonstrated expertise or interest in
5-18 the care and treatment of nursing home residents or hospital
5-19 patients.
5-20 (e) At least one member of any surrogate decision-making
5-21 committee must be a person described by Subsection (d)(1) or (5).
5-22 (f) A member of a surrogate decision-making committee shall
5-23 participate in education and training as required by rules adopted
5-24 under Section 313.062.
5-25 Sec. 313.052. APPOINTMENT OF SURROGATE DECISION-MAKING
5-26 COMMITTEE; APPLICATION. (a) A hospital or nursing home shall
5-27 appoint a surrogate decision-making committee if the hospital or
6-1 nursing home determines that:
6-2 (1) a major medical treatment decision must be made
6-3 for an adult patient;
6-4 (2) the adult patient is comatose, incapacitated, or
6-5 otherwise mentally or physically incapable of communication;
6-6 (3) the adult patient does not have a guardian of the
6-7 person or an advance directive made under law that authorizes
6-8 another person to make medical treatment decisions on behalf of the
6-9 adult patient; and
6-10 (4) no surrogate decision-maker listed by Sections
6-11 313.004(a)(1)-(7) is willing or available to make the medical
6-12 treatment decision on behalf of the adult patient.
6-13 (b) On appointment of a surrogate decision-making committee,
6-14 the hospital or nursing home shall file an application for a
6-15 medical treatment decision with the committee. At the time the
6-16 application is filed with the committee, the applicant shall submit
6-17 a copy of the application to:
6-18 (1) the Texas Department of Health if the applicant is
6-19 a hospital; or
6-20 (2) the Texas Department of Human Services if the
6-21 applicant is a nursing home.
6-22 (c) The application must be in the form prescribed by the
6-23 Texas Board of Human Services in consultation with the Texas Board
6-24 of Health, must be signed by an administrator of the hospital or
6-25 nursing home, as appropriate, and must:
6-26 (1) state that the conditions described by Subsections
6-27 (a)(1)-(3) exist with respect to an adult patient;
7-1 (2) describe the condition proposed to be treated;
7-2 (3) describe the proposed treatment, including the
7-3 risks and benefits to the patient of the proposed treatment;
7-4 (4) state the applicant's opinion on whether the
7-5 proposed treatment promotes the patient's best interests and the
7-6 grounds for that opinion;
7-7 (5) state the patient's opinion about the proposed
7-8 treatment, if known; and
7-9 (6) include any other information necessary to
7-10 determine the patient's best interests regarding the proposed
7-11 treatment.
7-12 Sec. 313.053. NOTICE OF REVIEW OF APPLICATION. (a) On
7-13 receipt of an application under Section 313.052, the surrogate
7-14 decision-making committee, with the assistance of the hospital or
7-15 nursing home, shall schedule a review of the application.
7-16 (b) The hospital or nursing home shall provide notice of the
7-17 review of the application to:
7-18 (1) the adult patient who is the subject of the
7-19 application, if possible;
7-20 (2) any person who is known to be actively involved or
7-21 to have a demonstrated interest in the care and welfare of the
7-22 adult patient, including an actively involved parent, spouse, or
7-23 adult child of the patient; and
7-24 (3) any other person required to be notified under
7-25 rules adopted under Section 313.062.
7-26 (c) The notice must include:
7-27 (1) the date, place, and time of the review;
8-1 (2) a copy of the application; and
8-2 (3) a statement of the committee's procedures for
8-3 consideration of the application, including a statement of the
8-4 procedures relating to the opportunity to be heard or present
8-5 evidence or to appeal the committee's decision.
8-6 Sec. 313.054. PRELIMINARY REVIEW OF APPLICATION. (a)
8-7 Before the date scheduled for review of an application under this
8-8 subchapter, the presiding officer of the surrogate decision-making
8-9 committee shall review the application to determine whether
8-10 additional information may be necessary to assist the committee in
8-11 determining the adult patient's best interests under the
8-12 circumstances.
8-13 (b) A committee member may consult with a person who may be
8-14 able to assist in the determination of the best interest of the
8-15 adult patient or to obtain information about the personal opinions,
8-16 beliefs, and values of the patient.
8-17 (c) A committee that does not include as a member an
8-18 individual described by Section 313.051(d)(1) shall consult with a
8-19 health care professional licensed or registered in this state to
8-20 assist the committee in determining the best interests of the adult
8-21 patient if the medical treatment decision that is subject to the
8-22 review is related to the provision of psychoactive medication.
8-23 Sec. 313.055. REVIEW OF APPLICATION. (a) A surrogate
8-24 decision-making committee shall review an application under this
8-25 subchapter at the time, place, and date stated in the notice
8-26 provided under Section 313.053.
8-27 (b) A person who is required to be notified under Section
9-1 313.053 is entitled to be present during the proceedings of the
9-2 surrogate decision-making committee and to present evidence
9-3 personally or through a representative.
9-4 (c) The surrogate decision-making committee may take
9-5 testimony or review evidence from any person who may be able to
9-6 assist the committee in determining the best interest of the adult
9-7 patient.
9-8 (d) Formal rules of evidence do not apply to proceedings of
9-9 a surrogate decision-making committee.
9-10 (e) If practicable, the surrogate decision-making committee
9-11 shall interview and observe the adult patient before making a
9-12 determination of the patient's best interest. If the adult patient
9-13 is not interviewed or observed, the reason the patient is not
9-14 interviewed or observed must be documented in the committee's
9-15 records.
9-16 (f) At any time before the surrogate decision-making
9-17 committee makes a determination of the client's best interest, the
9-18 presiding officer of the committee may suspend the review of the
9-19 application, for a period not to exceed five days, if a person
9-20 applies for appointment as the client's guardian of the person in
9-21 accordance with the Texas Probate Code.
9-22 Sec. 313.056. DETERMINATION OF BEST INTEREST; CONSENT TO
9-23 TREATMENT. (a) A surrogate decision-making committee shall
9-24 determine, based on clear and convincing evidence, whether the
9-25 proposed treatment promotes the adult patient's best interest.
9-26 (b) In making a determination under Subsection (a), the
9-27 surrogate decision-making committee shall fully consider the
10-1 preference of the adult patient, as articulated by the patient at
10-2 any time.
10-3 (c) The surrogate decision-making committee shall consent or
10-4 decline to consent to the treatment on the adult patient's behalf,
10-5 according to the best interest of the patient as determined by the
10-6 committee.
10-7 (d) The surrogate decision-making committee shall determine
10-8 the date on which the consent becomes effective and the date on
10-9 which the consent expires.
10-10 (e) If the proceedings of the surrogate decision-making
10-11 committee have been suspended under Section 313.055(f), the
10-12 committee shall also determine whether, if a person has not been
10-13 appointed as the guardian of the adult patient's person before the
10-14 sixth day after the date of the suspension, there is a medical
10-15 necessity, based on clear and convincing evidence, that the
10-16 determination to be made under Subsection (a) occur before the
10-17 guardianship proceedings are completed.
10-18 Sec. 313.057. WRITTEN OPINION; NOTICE OF DETERMINATION. (a)
10-19 A surrogate decision-making committee shall issue a written opinion
10-20 that states each of the committee's determinations and that
10-21 separately states the committee's findings of fact.
10-22 (b) The hospital or nursing home shall send a copy of the
10-23 committee's opinion to each person required to be notified under
10-24 Section 313.053. A hospital shall send a copy of the opinion to
10-25 the Texas Department of Health and a nursing home shall send a copy
10-26 of the opinion to the Texas Department of Human Services.
10-27 Sec. 313.058. APPEAL OF DETERMINATION. (a) A person
11-1 required to be notified under Section 313.053 may appeal the
11-2 decision of a surrogate decision-making committee by filing a
11-3 petition not later than the 15th day after the effective date of
11-4 the committee's determination in the court having probate
11-5 jurisdiction in the county in which the adult patient resides.
11-6 (b) If the hearing is to be held in a court in which the
11-7 judge is not a licensed attorney, the person filing the appeal may
11-8 request that the proceeding be transferred to a court with a judge
11-9 who is licensed to practice law in this state. The judge of the
11-10 court having probate jurisdiction shall transfer the case after
11-11 receiving the request and the court to which the case is
11-12 transferred shall hear the case as if it had been originally filed
11-13 in that court.
11-14 (c) A copy of the petition must be served on all parties of
11-15 record in the proceedings before the surrogate decision-making
11-16 committee.
11-17 (d) After considering the nature of the condition of the
11-18 adult patient, the proposed treatment, and the need for timely
11-19 medical treatment, the court may issue a temporary order
11-20 restraining the use of the proposed treatment to facilitate the
11-21 appeal. If the order is granted, the court shall expedite the
11-22 trial.
11-23 Sec. 313.059. EFFECT OF SUBCHAPTER. This subchapter does
11-24 not limit the availability under law of other means of obtaining
11-25 consent for medical treatment for an adult patient.
11-26 Sec. 313.060. CONFIDENTIAL INFORMATION. Notwithstanding any
11-27 other law of this state, a person licensed by this state to provide
12-1 services related to health care shall provide to a surrogate
12-2 decision-making committee appointed under this subchapter any
12-3 information that the committee requests that is relevant to an
12-4 adult patient's need for a proposed treatment.
12-5 Sec. 313.061. CERTAIN LAW INAPPLICABLE. A surrogate
12-6 decision-making committee is not subject to Chapter 551, 552, or
12-7 2001, Government Code.
12-8 Sec. 313.062. RULES AND PROCEDURES. The Texas Board of
12-9 Human Services, in consultation with the Texas Board of Health,
12-10 shall adopt rules governing a surrogate decision-making committee
12-11 appointed under this subchapter, including rules governing the
12-12 procedures used by a committee.
12-13 SECTION 4. Sections 313.001-313.007, Health and Safety Code,
12-14 are redesignated as Subchapter A, Chapter 313, Health and Safety
12-15 Code, and a new subchapter heading is added to read as follows:
12-16 SUBCHAPTER A. GENERAL PROVISIONS; SURROGATE DECISION-MAKERS
12-17 SECTION 5. This Act takes effect September 1, 1999, and
12-18 applies only to surrogate decision-making under Chapter 313, Health
12-19 and Safety Code, as amended by this Act, on and after January 1,
12-20 2000. Surrogate decision-making under Chapter 313, Health and
12-21 Safety Code, before January 1, 2000, is governed by the law as it
12-22 existed immediately before the effective date of this Act, and that
12-23 law is continued in effect for that purpose.
12-24 SECTION 6. The Texas Board of Human Services, in
12-25 consultation with the Texas Board of Health, shall adopt rules and
12-26 procedures as required by this Act not later than December 15,
12-27 1999.
13-1 SECTION 7. The importance of this legislation and the
13-2 crowded condition of the calendars in both houses create an
13-3 emergency and an imperative public necessity that the
13-4 constitutional rule requiring bills to be read on three several
13-5 days in each house be suspended, and this rule is hereby suspended.