1-1     By:  Moncrief                                          S.B. No. 209
 1-2           (In the Senate - Filed January 20, 1999; January 28, 1999,
 1-3     read first time and referred to Committee on Jurisprudence;
 1-4     April 8, 1999, reported favorably by the following vote:  Yeas 4,
 1-5     Nays 0; April 8, 1999, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to surrogate decision-making regarding treatment of
 1-9     certain individuals with mental retardation or related conditions.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1.  Chapter 597, Health and Safety Code, as amended
1-12     by Chapter 450, Acts of the 75th Legislature, Regular Session,
1-13     1997, is reenacted to read as follows:
1-14          CHAPTER 597.  CAPACITY OF CLIENTS TO CONSENT TO TREATMENT
1-15                      SUBCHAPTER A.  GENERAL PROVISIONS
1-16           Sec. 597.001.  DEFINITIONS.  In this chapter:
1-17                 (1)  "Highly restrictive procedure" means the
1-18     application of aversive stimuli, exclusionary time-out, physical
1-19     restraint, or a requirement to engage in an effortful task.
1-20                 (2)  "Client" means a person receiving services in a
1-21     community-based ICF-MR facility.
1-22                 (3)  "Committee" means a surrogate consent committee
1-23     established under Section 597.042.
1-24                 (4)  "ICF-MR" has the meaning assigned by Section
1-25     531.002.
1-26                 (5)  "Interdisciplinary team" means those
1-27     interdisciplinary teams defined in the Code of Federal Regulations
1-28     for participation in the intermediate care facilities for the
1-29     mentally retarded.
1-30                 (6)  "Major medical and dental treatment" means a
1-31     medical, surgical, dental, or diagnostic procedure or intervention
1-32     that:
1-33                       (A)  has a significant recovery period;
1-34                       (B)  presents a significant risk;
1-35                       (C)  employs a general anesthetic; or
1-36                       (D)  in the opinion of the primary physician,
1-37     involves a significant invasion of bodily integrity that requires
1-38     the extraction of bodily fluids or an incision or that produces
1-39     substantial pain, discomfort, or debilitation.
1-40                 (7)  "Psychoactive medication" means any medication
1-41     prescribed for the treatment of symptoms of psychosis or other
1-42     severe mental or emotional disorders and that is used to exercise
1-43     an effect upon the central nervous system for the purposes of
1-44     influencing and modifying behavior, cognition, or affective state.
1-45                 (8)  "Surrogate decision-maker" means an individual
1-46     authorized under Section 597.041 to consent on behalf of a client
1-47     residing in an ICF-MR facility.
1-48           Sec. 597.002.  RULES.  The board may adopt rules necessary to
1-49     implement this chapter not later than 180 days after its effective
1-50     date.
1-51           Sec. 597.003.  EXCEPTIONS.  (a)  This chapter does not apply
1-52     to decisions for the following:
1-53                 (1)  experimental research;
1-54                 (2)  abortion;
1-55                 (3)  sterilization;
1-56                 (4)  management of client funds; and
1-57                 (5)  electroconvulsive treatment.
1-58           (b)  This chapter does not apply to campus-based facilities
1-59     operated by the department.
1-60            (Sections 597.004 to 597.020 reserved for expansion)
1-61               SUBCHAPTER B.  ASSESSMENT OF CLIENT'S CAPACITY;
1-62                   INCAPACITATED CLIENTS WITHOUT GUARDIANS
1-63           Sec. 597.021.  ICF-MR ASSESSMENT OF CLIENT'S CAPACITY TO
1-64     CONSENT TO TREATMENT.  (a)  The board by rule shall require an
 2-1     ICF-MR facility certified in this state to assess the capacity of
 2-2     each adult client without a legal guardian to make treatment
 2-3     decisions when there is evidence to suggest the individual is not
 2-4     capable of making a decision covered under this chapter.
 2-5           (b)  The rules must require the use of a uniform assessment
 2-6     process prescribed by board rule to determine a client's capacity
 2-7     to make treatment decisions.
 2-8            (Sections 597.022 to 597.040 reserved for expansion)
 2-9             SUBCHAPTER C.  SURROGATE CONSENT FOR ICF-MR CLIENTS
2-10           Sec. 597.041.  SURROGATE DECISION-MAKERS.  (a)  If the
2-11     results of an assessment conducted in accordance with Section
2-12     597.021 indicate that an adult client who does not have a legal
2-13     guardian or a client under 18 years of age who has no parent, legal
2-14     guardian, or managing or possessory conservator lacks the capacity
2-15     to make a major medical or dental treatment decision, an adult
2-16     surrogate from the following list, in order of descending
2-17     preference, who has decision-making capacity and who is willing to
2-18     consent on behalf of the client may consent to major medical or
2-19     dental treatment on behalf of the client:
2-20                 (1)  an actively involved spouse;
2-21                 (2)  an actively involved adult child who has the
2-22     waiver and consent of all other actively involved adult children of
2-23     the client to act as the sole decision-maker;
2-24                 (3)  an actively involved parent or stepparent;
2-25                 (4)  an actively involved adult sibling who has the
2-26     waiver and consent of all other actively involved adult siblings of
2-27     the client to act as the sole decision-maker; and
2-28                 (5)  any other actively involved adult relative who has
2-29     the waiver and consent of all other actively involved adult
2-30     relatives of the client to act as the sole decision-maker.
2-31           (b)  Any person who consents on behalf of a client and who
2-32     acts in good faith, reasonably, and without malice is not
2-33     criminally or civilly liable for that action.
2-34           (c)  Consent given by the surrogate decision-maker is valid
2-35     and competent to the same extent as if the client had the capacity
2-36     to consent and had consented.
2-37           (d)  Any dispute as to the right of a party to act as a
2-38     surrogate decision-maker may be resolved only by a court of record
2-39     under Chapter V, Texas Probate Code.
2-40           Sec. 597.042.  SURROGATE CONSENT COMMITTEE ESTABLISHED;
2-41     DEPARTMENTAL SUPPORT.  (a)  For cases in which there is no guardian
2-42     or surrogate decision-maker available, the department shall
2-43     establish and maintain a list of individuals qualified to serve on
2-44     a surrogate consent committee.
2-45           (b)  The department shall provide the staff and assistance
2-46     necessary to perform the duties prescribed by this subchapter.
2-47           Sec. 597.043.  COMMITTEE MEMBERSHIP.  (a)  A surrogate
2-48     consent committee considering an application for a treatment
2-49     decision shall be composed of at least three but not more than five
2-50     members, and consent on behalf of clients shall be based on
2-51     consensus of the members.
2-52           (b)  A committee considering an application for a treatment
2-53     decision must consist of individuals who:
2-54                 (1)  are not employees of the facility;
2-55                 (2)  do not provide contractual services to the
2-56     facility;
2-57                 (3)  do not manage or exercise supervisory control
2-58     over:
2-59                       (A)  the facility or the employees of the
2-60     facility; or
2-61                       (B)  any company, corporation, or other legal
2-62     entity that manages or exercises control over the facility or the
2-63     employees of the facility;
2-64                 (4)  do not have a financial interest in the facility
2-65     or in any company, corporation, or other legal entity that has a
2-66     financial interest in the facility; and
2-67                 (5)  are not related to the client.
2-68           (c)  The list of qualified individuals from which committee
2-69     members are drawn shall include:
 3-1                 (1)  health care professionals licensed or registered
 3-2     in this state who have specialized training in medicine,
 3-3     psychopharmacology, nursing, or psychology;
 3-4                 (2)  persons with mental retardation or parents,
 3-5     siblings, spouses, or children of a person with mental retardation;
 3-6                 (3)  attorneys licensed in this state who have
 3-7     knowledge of legal issues of concern to persons with mental
 3-8     retardation or to the families of persons with mental retardation;
 3-9                 (4)  members of private organizations that advocate on
3-10     behalf of persons with mental retardation; and
3-11                 (5)  persons with demonstrated expertise or interest in
3-12     the care and treatment of persons with mental disabilities.
3-13           (d)  At least one member of the committee must be an
3-14     individual listed in Subsection (c)(1) or (5).
3-15           (e)  A member of a committee shall participate in education
3-16     and training as required by department rule.
3-17           (f)  The department shall designate a committee chair.
3-18           Sec. 597.044.  APPLICATION FOR TREATMENT DECISION.  (a)  If
3-19     the results of the assessment conducted in accordance with Section
3-20     597.021 indicate that a client who does not have a legal guardian
3-21     or surrogate decision-maker lacks the capacity to make a treatment
3-22     decision about major medical or dental treatment, psychoactive
3-23     medication, or a highly restrictive procedure, the ICF-MR facility
3-24     must file an application for a treatment decision with the
3-25     department.
3-26           (b)  An application must be in the form prescribed by the
3-27     department, must be signed by the applicant, and must:
3-28                 (1)  state that the applicant has reason to believe and
3-29     does believe that the client has a need for major medical or dental
3-30     treatment, psychoactive medication, or a highly restrictive
3-31     procedure;
3-32                 (2)  specify the condition proposed to be treated;
3-33                 (3)  provide a description of the proposed treatment,
3-34     including the risks and benefits to the client of the proposed
3-35     treatment;
3-36                 (4)  provide a description of generally accepted
3-37     alternatives to the proposed treatment, including the risks and
3-38     potential benefits to the client of the alternatives, and the
3-39     reasons the alternatives were rejected;
3-40                 (5)  state the applicant's opinion on whether the
3-41     proposed treatment promotes the client's best interest and the
3-42     grounds for the opinion;
3-43                 (6)  state the client's opinion about the proposed
3-44     treatment, if known;
3-45                 (7)  provide any other information necessary to
3-46     determine the client's best interest regarding the treatment; and
3-47                 (8)  state that the client does not have a guardian of
3-48     the person and does not have a parent, spouse, child, or other
3-49     person with demonstrated interest in the care and welfare of the
3-50     client who is able and willing to become the client's  guardian or
3-51     surrogate decision-maker.
3-52           Sec. 597.045.  NOTICE OF REVIEW OF APPLICATION FOR TREATMENT
3-53     DECISION.  (a)  Following receipt of an application for a treatment
3-54     decision that meets the requirements of Section 597.044(b), the
3-55     department shall appoint a surrogate consent committee.
3-56           (b)  The ICF-MR facility with assistance from the department
3-57     shall schedule a review of the application.
3-58           (c)  The ICF-MR facility with assistance from the department
3-59     shall send notice of the date, place, and time of the review to the
3-60     surrogate consent committee, the client who is the subject of the
3-61     application, the client's actively involved parent, spouse, adult
3-62     child, or other person known to have a demonstrated interest in the
3-63     care and welfare of the client, and any other person as prescribed
3-64     by board rule.  The ICF-MR facility shall include a copy of the
3-65     application and a statement of the committee's procedure for
3-66     consideration of the application, including the opportunity to be
3-67     heard or to present evidence and to appeal.
3-68           Sec. 597.046.  PREREVIEW OF APPLICATION.  (a)  Before the
3-69     date of the review of an application for a treatment decision the
 4-1     committee chair shall review the application to determine whether
 4-2     additional information may be necessary to assist the committee in
 4-3     determining the client's best interest under the circumstances.
 4-4           (b)  A committee member may consult with a person who might
 4-5     assist in the determination of the best interest of the client or
 4-6     in learning the personal opinions, beliefs, and values of the
 4-7     client.
 4-8           (c)  If a committee that does not include in its membership
 4-9     an individual listed in Section 597.043(c)(1) is to review an
4-10     application for a treatment decision about psychoactive medication,
4-11     the department shall provide consultation with a health care
4-12     professional licensed or registered in this state to assist the
4-13     committee in the determination of the best interest of the client.
4-14           Sec. 597.047.  CONFIDENTIAL INFORMATION.  Notwithstanding any
4-15     other state law, a person licensed by this state to provide
4-16     services related to health care or to the treatment or care of a
4-17     person with mental retardation, a developmental disability, or a
4-18     mental illness shall provide to the committee members any
4-19     information the committee requests that is relevant to the client's
4-20     need for a proposed treatment.
4-21           Sec. 597.048.  REVIEW OF APPLICATION.  (a)  The committee
4-22     shall review the application at the time, place, and date provided
4-23     in the notice under Section 597.045.
4-24           (b)  A person notified under Section 597.045 is entitled to
4-25     be present and to present evidence personally or through a
4-26     representative.
4-27           (c)  The committee may take testimony or review evidence from
4-28     any person who might assist the committee in determining a client's
4-29     best interest.
4-30           (d)  Formal rules of evidence do not apply to committee
4-31     proceedings.
4-32           (e)  If practicable, the committee shall interview and
4-33     observe the client before making a determination of the client's
4-34     best interest, and in those cases when a client is not interviewed,
4-35     the reason must be documented in the committee's record.
4-36           (f)  At any time before the committee makes its determination
4-37     of a client's best interest under Section 597.049, the committee
4-38     chair may suspend the review of the application for not more than
4-39     five days if any person applies for appointment as the client's
4-40     guardian of the person in accordance with the Texas Probate Code.
4-41           Sec. 597.049.  DETERMINATION OF BEST INTEREST.  (a)  The
4-42     committee shall make a determination, based on clear and convincing
4-43     evidence, of whether the proposed treatment promotes the client's
4-44     best interest and a determination that:
4-45                 (1)  a person has not been appointed as the guardian of
4-46     the client's person before the sixth day after proceedings are
4-47     suspended under Section 597.048(f); or
4-48                 (2)  there is a medical necessity, based on clear and
4-49     convincing evidence, that the determination about the proposed
4-50     treatment occur before guardianship proceedings are completed.
4-51           (b)  In making its determination of the best interest of the
4-52     client, the committee shall consider fully the preference of the
4-53     client as articulated at any time.
4-54           (c)  According to its determination of the client's best
4-55     interest, the committee shall consent or refuse the treatment on
4-56     the client's behalf.
4-57           (d)  The committee shall determine a date on which the
4-58     consent becomes effective and a date on which the consent expires.
4-59           (e)  A person serving on a committee who consents or refuses
4-60     to consent on behalf of a client and who acts in good faith,
4-61     reasonably, and without malice is not criminally or civilly liable
4-62     for that action.
4-63           Sec. 597.050.  NOTICE OF DETERMINATION.  (a)  The committee
4-64     shall issue a written opinion containing each of its determinations
4-65     and a separate statement of the committee's findings of fact.
4-66           (b)  The ICF-MR facility shall send a copy of the committee's
4-67     opinion to:
4-68                 (1)  each person notified under Section 597.045; and
4-69                 (2)  the department.
 5-1           Sec. 597.051.  EFFECT OF COMMITTEE'S DETERMINATION.  This
 5-2     chapter does not limit the availability of other lawful means of
 5-3     obtaining a client's consent for medical treatment.
 5-4           Sec. 597.052.  SCOPE OF CONSENT.  (a)  The committee or the
 5-5     surrogate decision-maker may consent to the release of records
 5-6     related to the client's condition or treatment to facilitate
 5-7     treatment to which the committee or surrogate decision-maker has
 5-8     consented.
 5-9           (b)  The interdisciplinary team may consent to psychoactive
5-10     medication subsequent to the initial consent for administration of
5-11     psychoactive medication made by a surrogate consent committee in
5-12     accordance with rules of the department until the expiration date
5-13     of the consent.
5-14           (c)  Unless another decision-making mechanism is provided for
5-15     by law, a client, a client's authorized surrogate decision-maker if
5-16     available, or the client's interdisciplinary team may consent to
5-17     decisions which involve risk to client protection and rights not
5-18     specifically reserved to surrogate decision-makers or surrogate
5-19     consent committees.
5-20           Sec. 597.053.  APPEALS.  (a)  A person notified under Section
5-21     597.045 may appeal the committee's decision by filing a petition in
5-22     the probate court or court having probate jurisdiction for the
5-23     county in which the client resides or in Travis County.  The person
5-24     must file the appeal not later than the 15th day after the
5-25     effective date of the committee's determination.
5-26           (b)  If the hearing is to be held in a probate court in which
5-27     the judge is not a licensed attorney, the person filing the appeal
5-28     may request that the proceeding be transferred to a court with a
5-29     judge who is licensed to practice law in this state.  The probate
5-30     court judge shall transfer the case after receiving the request,
5-31     and the receiving court shall hear the case as if it had been
5-32     originally filed in that court.
5-33           (c)  A copy of the petition must be served on all parties of
5-34     record in the proceedings before the committee.
5-35           (d)  After considering the nature of the condition of the
5-36     client, the proposed treatment, and the need for timely medical
5-37     attention, the court may issue a temporary restraining order to
5-38     facilitate the appeal.  If the order is granted, the court shall
5-39     expedite the trial.
5-40           Sec. 597.054.  PROCEDURES.  (a)  Each ICF-MR shall develop
5-41     procedures for the surrogate consent committees in accordance with
5-42     the rules adopted under Section 597.002.
5-43           (b)  A committee is not subject to Chapter 2001, Government
5-44     Code, Chapter 551, Government Code, or Chapter 552, Government
5-45     Code.
5-46           SECTION 2.  The importance of this legislation and the
5-47     crowded condition of the calendars in both houses create an
5-48     emergency and an imperative public necessity that the
5-49     constitutional rule requiring bills to be read on three several
5-50     days in each house be suspended, and this rule is hereby suspended,
5-51     and that this Act take effect and be in force from and after its
5-52     passage, and it is so enacted.
5-53                                  * * * * *