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A BILL TO BE ENTITLED
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AN ACT
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relating to advance directives. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 166.002, Health and Safety Code, is |
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amended by amending Subdivision (6) and adding Subdivision (16) to |
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read as follows: |
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(6) "Ethics or medical committee" means a committee |
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established under Sections 161.031-161.033 or a subcommittee of an |
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ethics or medical committee. |
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(16) "Surrogate" means a legal guardian, agent under a |
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medical power of attorney, or a person authorized under Section |
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166.039 to make a health care decision or treatment decision for an |
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incompetent patient under this chapter. |
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SECTION 2. Section 166.039(e), Health and Safety Code, is |
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amended to read as follows: |
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(e) If the patient does not have a legal guardian or agent |
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under a medical power of attorney and a person listed in Subsection |
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(b) is not available, a treatment decision made under Subsection |
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(b) must be concurred in by another physician who is not involved in |
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the treatment of the patient or who is a representative of an ethics |
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or medical committee of the health care facility in which the person |
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is a patient. |
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SECTION 3. Section 166.045(c), Health and Safety Code, is |
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amended to read as follows: |
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(c) If an attending physician refuses to comply with a |
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directive or treatment decision and does not wish to follow the |
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procedure established under Section 166.046, the appropriate |
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life-sustaining treatment shall be provided to the patient, but |
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only until a reasonable opportunity has been afforded for the |
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transfer of the patient to another physician or health care |
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facility willing to comply with the directive or treatment |
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decision. |
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SECTION 4. Section 166.046, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR |
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TREATMENT DECISION. (a) If an attending physician refuses to honor |
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an incompetent, qualified [a] patient's advance directive or a |
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health care or treatment decision made [by or] on behalf of an |
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incompetent, qualified [a] patient, [the physician's refusal shall
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be reviewed by] an ethics or medical committee shall deliberate the |
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physician's refusal in accordance with this section. [The
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attending physician may not be a member of that committee.] The |
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patient shall be given life-sustaining treatment during the process |
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described in this section [review]. |
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(a-1) On receipt of notice of the refusal of an attending |
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physician to honor an advance directive or health care or treatment |
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decision described in Subsection (a) by an ethics or medical |
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committee, the ethics or medical committee shall: |
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(1) appoint a patient liaison to assist the patient's |
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surrogate throughout the process provided in this section; and |
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(2) appoint a representative of the ethics or medical |
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committee to conduct an advisory consultation with the surrogate, |
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which must be documented in the patient's medical record. |
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(a-2) If a disagreement over a health care or treatment |
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decision persists following an advisory consultation described in |
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Subsection (a-1)(2), the attending physician may request a meeting |
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with the ethics or medical committee and shall provide notice to the |
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surrogate in accordance with Subsection (b). The attending |
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physician may not be a member of the ethics or medical committee. |
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(b) On receipt of a request for a meeting of the ethics or |
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medical committee as described in Subsection (a-2) and not less |
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than 72 hours before the meeting with the committee to discuss the |
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patient's directive or the surrogate's health care or treatment |
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decision, unless the time period is waived by mutual agreement, the |
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surrogate shall be offered [The patient or the person responsible
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for the health care decisions of the individual who has made the
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decision regarding the directive or treatment decision]: |
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(1) [may be given] a written description of the ethics |
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or medical committee review process and may be offered any other |
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policies and procedures related to this section adopted by the |
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health care facility; |
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(2) information that the surrogate on request is |
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entitled to receive in a timely manner a copy of the patient's |
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medical record of the patient's current admission to the facility; |
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(3) information that the surrogate is entitled to |
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receive the assistance of a patient liaison to assist the surrogate |
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throughout the process described in this section; |
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(4) [shall be informed of the committee review process
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not less than 48 hours before the meeting called to discuss the
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patient's directive, unless the time period is waived by mutual
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agreement;
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[(3) at the time of being so informed, shall be
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provided:
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[(A)] a copy of the appropriate statement set |
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forth in Section 166.052; and |
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(5) [(B)] a copy of the registry list of health care |
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providers, health care facilities, and referral groups that have |
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volunteered their readiness to consider accepting transfer or to |
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assist in locating a provider willing to accept transfer that is |
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posted on the website maintained by the department [Texas Health
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Care Information Council] under Section 166.053. |
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(b-1) The surrogate[; and
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[(4)] is entitled to: |
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(1) [(A)] attend the meeting; [and] |
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(2) be accompanied at the meeting by one or more |
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persons for support, subject to the ability of the ethics or medical |
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committee to accommodate the persons authorized and wishing to |
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attend the meeting; and |
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(3) [(B)] receive a written explanation of the |
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decision reached during the review process. |
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(c) The written explanation required by Subsection |
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(b-1)(3)[(b)(2)(B)] must be included in the patient's medical |
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record. |
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(d) If the attending physician or the surrogate[, the
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patient, or the person responsible for the health care decisions of
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the individual] does not agree with the decision reached during the |
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review process [under Subsection (b)], the physician shall make a |
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reasonable effort to transfer the patient to a physician who is |
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willing to comply with the directive or the surrogate's health care |
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or treatment decision. The [If the patient is a patient in a health
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care facility, the] facility's personnel shall assist the physician |
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in arranging the patient's transfer to: |
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(1) another physician; |
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(2) an alternative care setting within that facility; |
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or |
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(3) another facility. |
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(e) If the patient's directive [patient] or the surrogate |
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[person responsible for the health care decisions of the patient] |
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is requesting life-sustaining treatment that the attending |
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physician has decided and the ethics or medical committee [review
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process] has affirmed is inappropriate treatment, the patient shall |
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be given [available] life-sustaining treatment of at least the same |
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level as was provided at the time the meeting with the ethics or |
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medical committee was held under Subsection (a-2) pending transfer |
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under Subsection (d). The patient shall receive treatment to |
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enhance pain relief and minimize suffering. The patient is |
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responsible for any costs incurred in transferring the patient to |
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another facility. The attending physician, any other physician |
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responsible for the care of the patient, and the health care |
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facility are not obligated to provide life-sustaining treatment |
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after the 11th business [10th] day after the written decision |
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required under Subsection (b) is provided to the patient or the |
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surrogate [person responsible for the health care decisions of the
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patient] unless ordered to do so under Subsection (g). |
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(e-1) If during a previous admission to a facility a |
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patient's attending physician and the review process [under
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Subsection (b)] have determined that life-sustaining treatment is |
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inappropriate, and the patient is readmitted to the same facility |
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or another facility in the same health care system within six months |
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from the date of the decision reached during the review process |
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conducted upon the previous admission, Subsections (b) through (e) |
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need not be followed if the patient's attending physician and a |
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consulting physician who is a member of the ethics or medical |
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committee of the facility document on the patient's readmission |
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that the patient's condition either has not improved or has |
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deteriorated since the review process was conducted. |
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(f) Life-sustaining treatment under this section may not be |
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entered in the patient's medical record as medically unnecessary |
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treatment until the time period provided under Subsection (e) and |
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Section 166.0465, if applicable, has expired. |
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(g) At the request of the patient or the surrogate [person
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responsible for the health care decisions of the patient], the |
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appropriate district or county court shall extend the time period |
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provided under Subsection (e) only if the court in a proceeding |
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conducted under Section 166.0465 finds, by a preponderance of the |
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evidence, that there is a reasonable expectation that a physician |
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or health care facility that will honor the patient's directive |
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will be found if the time extension is granted. |
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(h) This section may not be construed to impose an |
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obligation on a facility or a home and community support services |
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agency licensed under Chapter 142 or similar organization that is |
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beyond the scope of the services or resources of the facility or |
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agency. This section does not apply to hospice services provided by |
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a home and community support services agency licensed under Chapter |
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142. |
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SECTION 5. Subchapter B, Chapter 166, Health and Safety |
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Code, is amended by adding Section 166.0465 to read as follows: |
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Sec. 166.0465. COURT ORDER FOR LIFE-SUSTAINING TREATMENT; |
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APPEAL; FILING FEE AND COURT COSTS. (a) A patient or the patient's |
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surrogate may submit a motion for extension of time to effect a |
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patient transfer for relief under Section 166.046(g) in any county |
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court at law, court having probate jurisdiction, or district court, |
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including a family district court and immediately serve a copy on |
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the health care facility. |
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(b) The court shall set a time for a hearing on a motion |
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filed under Subsection (a) and shall keep a record of all testimony |
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and other oral proceedings in the action. The court shall rule on |
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the motion and issue written findings of fact and conclusions of law |
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not later than the fifth business day after the date the application |
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is filed with the court. The time for the hearing and the date by |
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which the court must rule on the motion may be extended by |
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stipulation of the parties, with the approval of the court. |
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(c) Any party may appeal the decision of the court under |
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Subsection (b) to the court of appeals having jurisdiction over |
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civil matters in the county in which the application was filed by |
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filing a notice of appeal with the clerk of the court that ruled on |
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the application not later than the first business day after the day |
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on which the decision of the court was issued. |
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(d) On receipt of a notice of appeal under Subsection (c), |
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the clerk of the court that ruled on the motion shall deliver a copy |
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of the notice of appeal and record on appeal to the clerk of the |
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court of appeals. On receipt of the notice and record, the clerk of |
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the court of appeals shall place the appeal on the docket of the |
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court, and the court of appeals shall promptly issue an expedited |
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briefing schedule and set a time for a hearing. |
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(e) The court of appeals shall rule on an appeal under |
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Subsection (d) not later than the fifth business day after the date |
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the notice of appeal is filed with the court that ruled on the |
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application. The times for the filing of briefs, the hearing, and |
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the date by which the court of appeals must rule on the appeal may be |
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extended by stipulation of the parties, with the approval of the |
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court of appeals. |
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(f) Any party may file a petition for review of the decision |
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of the court of appeals with the clerk of the supreme court not |
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later than the third business day after the day on which the |
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decision of the court of appeals was issued. Other parties may file |
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responses not later than the third business day after the day on |
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which the petition for review was filed. The supreme court shall |
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grant the petition, deny it, refuse it, or dismiss it for want of |
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jurisdiction, whether or not a reply to any response has been filed, |
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not later than the third business day after the day on which the |
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response was due. If the supreme court grants the petition for |
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review, it shall exercise its sound discretion in determining how |
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expeditiously to hear and decide the case. |
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(g) If a motion is filed under Subsection (a), |
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life-sustaining treatment shall be provided through midnight of the |
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day by which a notice of appeal must be filed unless the court |
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directs that it be provided for a longer period. If a notice of |
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appeal under Subsection (c) is filed, life-sustaining treatment |
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shall be provided through midnight of the day by which a petition |
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for review to the supreme court must be filed, unless the court of |
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appeals directs that it be provided for a longer period. If a |
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petition for review to the supreme court is filed under Subsection |
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(f), life-sustaining treatment shall be provided through midnight |
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of the day on which the supreme court denies, refuses, or dismisses |
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the petition or issues a ruling on the merits, unless the supreme |
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court directs that it be provided for a longer period. |
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(h) A filing fee or court cost may not be assessed for any |
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proceeding in a trial or appellate court under this section. |
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SECTION 6. Section 166.052(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) In cases in which the attending physician refuses to |
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honor an advance directive or treatment decision requesting the |
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provision of life-sustaining treatment, the statement required by |
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Section 166.046(b)(4) [166.046(b)(2)(A)] shall be in substantially |
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the following form: |
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When There Is A Disagreement About Medical Treatment: The |
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Physician Recommends Against Certain Life-Sustaining Treatment |
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That You Wish To Continue |
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You have been given this information because you have |
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requested life-sustaining treatment on behalf of the patient,* |
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which the attending physician believes is not appropriate. This |
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information is being provided to help you understand state law, |
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your rights, and the resources available to you in such |
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circumstances. It outlines the process for resolving disagreements |
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about treatment among patients, families, and physicians. It is |
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based upon Section 166.046 of the Texas Advance Directives Act, |
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codified in Chapter 166 of the Texas Health and Safety Code. |
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When an attending physician refuses to comply with an advance |
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directive or other request for life-sustaining treatment because of |
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the physician's judgment that the treatment would be inappropriate, |
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the case will be reviewed by an ethics or medical committee. |
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Life-sustaining treatment will be provided through the review. |
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As the patient's decision-maker, you [You] will receive |
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notification of this review at least 72 [48] hours before a meeting |
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of the committee related to your case. [You are entitled to attend
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the meeting.] With your agreement, the meeting may be held sooner |
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than 72 [48] hours, if possible. |
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The committee will appoint a patient liaison to assist you |
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through this process. You are entitled to attend the meeting and to |
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be accompanied by one or more persons to support you, subject to the |
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ability of the committee to accommodate the persons authorized and |
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wishing to attend. You are also entitled to receive a copy of the |
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patient's medical record on request for the patient's current |
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admission to this facility in a timely manner in advance of the |
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meeting. You are entitled to receive a written explanation of the |
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decision reached during the review process. |
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If after this review process both the attending physician and |
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the ethics or medical committee conclude that life-sustaining |
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treatment is inappropriate and yet you continue to request such |
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treatment, then the following procedure will occur: |
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1. The physician, with the help of the health care facility, |
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will assist you in trying to find a physician and facility willing |
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to provide the requested treatment. |
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2. You are being given a list of health care providers, |
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health care facilities, and referral groups that have volunteered |
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their readiness to consider accepting transfer, or to assist in |
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locating a provider willing to accept transfer, maintained by the |
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Department of State [Texas] Health Services [Care Information
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Council]. You may wish to contact providers or referral groups on |
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the list or others of your choice to get help in arranging a |
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transfer. |
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3. The patient will continue to be given life-sustaining |
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treatment and treatment to enhance pain management and reduce |
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suffering until he or she can be transferred to a willing provider |
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for up to 11 business [10] days from the time you were given the |
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committee's written decision that life-sustaining treatment is not |
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appropriate. |
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4. If a transfer can be arranged, the patient will be |
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responsible for the costs of the transfer. |
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5. If a provider cannot be found willing to give the |
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requested treatment within 11 business [10] days, life-sustaining |
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treatment may be withdrawn unless a court of law has granted an |
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extension. |
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6. You may ask the appropriate district or county court to |
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extend the 11-day [10-day] period if the court finds that there is a |
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reasonable expectation that a physician or health care facility |
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willing to provide life-sustaining treatment will be found if the |
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extension is granted. |
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*"Life-sustaining treatment" means treatment that, based on |
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reasonable medical judgment, sustains the life of a patient and |
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without which the patient will die. The term includes both |
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life-sustaining medications and artificial life support, such as |
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mechanical breathing machines, kidney dialysis treatment, and |
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artificial nutrition and hydration. The term does not include the |
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administration of pain management medication or the performance of |
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a medical procedure considered to be necessary to provide comfort |
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care, or any other medical care provided to alleviate a patient's |
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pain. |
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SECTION 7. Subchapter B, Chapter 166, Health and Safety |
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Code, is amended by adding Section 166.054 to read as follows: |
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Sec. 166.054. REPORTING REQUIREMENTS REGARDING ETHICS OR |
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MEDICAL COMMITTEE PROCESSES OF DATA. (a) On submission of a health |
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care facility's application to renew its license, a facility in |
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which one or more meetings of an ethics or medical committee is held |
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under Section 166.046 shall file a report with the department that |
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contains aggregate information regarding the number of cases |
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considered by an ethics or medical committee and the disposition of |
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those cases by the facility. |
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(b) The report required by this section may not contain any |
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data specific to an individual patient. |
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SECTION 8. Sections 166.082(a) and (c), Health and Safety |
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Code, are amended to read as follows: |
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(a) A competent adult [person] may at any time execute a |
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written out-of-hospital DNR order directing health care |
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professionals acting in an out-of-hospital setting to withhold |
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cardiopulmonary resuscitation and certain other life-sustaining |
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treatment designated by the board. |
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(c) If the person is incompetent but previously executed or |
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issued a directive to physicians in accordance with Subchapter B |
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requesting that all treatment, other than treatment necessary for |
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keeping the person comfortable, be discontinued or withheld, the |
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physician may rely on the directive as the person's instructions to |
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issue an out-of-hospital DNR order and shall place a copy of the |
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directive in the person's medical record. The physician shall sign |
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the order in lieu of the person signing under Subsection (b). |
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SECTION 9. Section 166.152(d), Health and Safety Code, is |
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amended to read as follows: |
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(d) The principal's attending physician shall make |
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reasonable efforts to inform the principal of any proposed |
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treatment or of any proposal to withdraw or withhold treatment |
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before implementing an agent's health care decision [advance
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directive]. |
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SECTION 10. (a) Not later than November 1, 2007, the Texas |
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Supreme Court shall issue the rules and prescribe the forms |
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necessary for the process established by Section 166.0465, Health |
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and Safety Code, as added by this Act. The rules shall prescribe |
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the method of service of the application under Section 166.0465 and |
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may require filing and service of notices, petitions, and briefs |
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electronically to the extent the Supreme Court considers |
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appropriate. |
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(b) Not later than March 1, 2008, the executive commissioner |
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of the Health and Human Services Commission shall adopt the rules |
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necessary to implement the changes in law made by this Act to |
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Chapter 166, Health and Safety Code. |
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SECTION 11. An advance directive form executed under |
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Chapter 166, Health and Safety Code, before the effective date of |
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this Act is valid and shall be honored as if the form were executed |
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on or after the effective date of this Act. If an attending |
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physician refuses to honor a patient's advance directive or a |
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health care or treatment decision made by or on behalf of a patient |
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under an advance directive form executed before the effective date |
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of this Act, the refusal is governed by Chapter 166, Health and |
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Safety Code, as amended by this Act. |
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SECTION 12. This Act takes effect September 1, 2007. |