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.