By: Laubenberg H.B. No. 3970

A BILL TO BE ENTITLED

AN ACT

relating to advance directives or health care or treatment decisions made by or on behalf of a patient.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act mat be cited as the Patient and Family Treatment Choice Rights Act of 2007.

SECTION 2. The purpose of this Act is to protect the rights if patients and their families, of an attending physician is unable or unwilling to comply with a patient's decision, whether that decision is made in an advance directive or by a person with the right and responsibility to make health care or treatment decisions for the patient. This Act amends the applicable provisions of the Advance Directives act (Chapter 166, Health and Safety Code).

SECTION 3. Sections 166.045(c) and (d), Health and Safety Code, are amended to read as follows:

(c) If an attending physician is at any time unwilling or unable to comply with a directive or treatment decision calling for the provision of life-sustaining treatment, including, without limitation, to a directive or treatment decision calling for the provision of artificial nutrition and hydration, to a patient diagnosed with a terminal or irreversible condition, the attending physician shall immediately so notify in writing the health care facility in which the patient is located, by and through an officer of that facility, and the person responsible for the health care decisions of the patient, and upon its receipt of such notice the health care facility shall:

(1) provide, and thereafter continue to provide, the directed life-sustaining treatment;

(2) substitute for the attending physician another attending physician with privileges at that facility, who will comply with such directive or treatment decision; and

(3) deliver to the person responsible for the health care decisions of the patient a written statement informing the person of that person's rights under Sections 166.045(c) and 166.046, such statement to include, with limitation:

(1) an exact copy of these provisions; and

(2) a copy of the registry list of health care facilities and referral groups that have volunteered their readiness to consider accepting such transfer as is provided in Section 166.045(c)(4) or to assist in locating a facility willing to accept such a transfer, which list is posted on the website maintained by the Texas Health Care Information Council.

(4) Upon receipt of notice required by Subsection (3), the person responsible for the health care decisions of the patient or at any one or more times thereafter, that responsible person may:

(1) replace the attending physician with another attending physician who will comply with such directive or treatment decision and;

(2) request the patient be transferred to another health care facility that will comply with such directive or treatment decision. In the event the person responsible for the health care decisions of the patient requests a transfer, the provisions of Section 166.046 shall apply. [If an attending physician refuses to comply with a directive or treatment decision and does not wish to follow the procedure established under Section 166.046, life-sustaining treatment shall be provided to the patient, but only until a reasonable opportunity has been afforded for the transfer of the patient to another physician or health care facility willing to comply with the directive or treatment decision.]

(c-1) If an attending physician is at any time unwilling or unable to comply with a directive or treatment decision calling for the withdrawal of life-sustaining treatment to a patient diagnosed with a terminal and irreversible condition, the attending physician shall immediately so notify in writing the health care facility in which the person is located, by and through an officer of that facility, and the person responsible for the health care decisions of the patient, and upon receipt of such notice, the health care facility shall:

(1) review the patient's advance directive or receive confirmation of any such treatment decision from the responsible party;

(2) provide, and thereafter continue to provide, life-sustaining treatment; and

(3) deliver to the responsible person a written statement informing the person of that person's rights under Sections 166.045 and 166.146, such statement to include, without limitation, an exact copy of those provisions.

(c-2) Upon its receipt of such notice by the person responsible for the health care decisions of the patient or at any time thereafter, that responsible person may request the patient be transferred to another health care facility that will comply with such directive or treatment decision calling for the withdrawal of life-sustaining treatment. In the event the person responsible for the health care decisions of the patient requests a transfer, the provisions of Section 166.046 shall apply, and the health care facility shall deliver to the responsible person a copy of the registry list of health care facilities and referral groups that have volunteered their readiness to consider accepting such transfer as is provided in Section 166.045(c)(4) or to assist in locating a facility willing to accept such a transfer, which list is posted on the website maintained by the Texas Health Care Information Council.

(d) A physician, health professional acting under the direction of a physician, or health care facility may be [is not] civilly [or criminally] liable or subject to review or disciplinary action by the person's appropriate licensing board if the person does not comply with the procedures set forth in Sections 166.045 and 166.046 [has complied with the procedures outlined in Section 166.046]. In the event of such non-compliance and civil liability, there shall be no limitation on remedies or damages, non-economic or otherwise, notwithstanding any other law to the contrary.

SECTION 4. Section 166.046, Health and Safety Code, is amended to read as follows:

(a) In the event the person responsible for the health care decisions of a patient requests a transfer under Section 166.045, the health care facility in which the patient is located shall at that time and thereafter continue to make a reasonable, good faith effort to locate for that responsible person:

(1) an alternative health care facility reasonably acceptable to that person that will accept transfer of the patient and comply with the patient's directive or the responsible person's treatment decision; and

(2) an attending physician with privileges at that alternative health care facility who is reasonably acceptable to that responsible person, will accept such transfer, and will comply with such directive or treatment decision.

(a-1) If and when such an alternative health care facility and attending physician are located, the health care facility shall:

(1) transfer the patient to that facility and physician in a safe and timely manner, without cost to the patient; and

(2) provide life-sustaining treatment to the patient until an alternative health care facility, and an attending physician with privileges at such facility, accept such transfer and begin compliance with the directive or treatment decision. [(a) If an attending physician refuses to honor a patient's advance directive or a health care or treatment decision made by or on behalf of a patient, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.]

(b) Each health care facility licensed in the State of Texas shall purchase insurance to cover the cost of such transfers and life-sustaining treatment as are permitted or required under Sections 166.045 166.046, to the extent that facility is qualified to provide such transfers and/or treatment, except that such coverage may be limited to that portion of such cost that exceeds any portion covered and paid by any insurance covering the patient. [(b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:

(1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility;

(2) shall be informed of the committee review process not less than 18 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement;

(3) at the time of being so informed, shall be provided:

(A) a copy of the appropriate statement set forth in Section 166.052; and

(B) a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the Texas Health Care Information Council under Section 166.053; and

(4)is entitled to:

(A)attend the meeting; and

(B) receive a written explanation of the decision reached during the review process.]

(c) Sections 166.045 and 166.046 may not be construed to impose on a home and community support services agency licensed under Chapter 142 or similar organization an obligation that is beyond the scope of the services or resources of the agency or organization, and do not apply to hospice services provided by a home and community support services agency licensed under Chapter 142.

[(c) The written explanation required by Subsection(b)(2)(B) must be included in the patient's medical record.

(d) If the attending physician, the patient, or the person responsible for the health care decisions of the individual does not agree with the decision reached during the review process under Subsection (b), the physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive. If the patient is a patient in a health care facility, the facility's personnel shall assist the physician in arranging the patient's transfer to:

(1)another physician;

(2) an alternative care setting within that facility; or

(3)another facility.

(e) If the patient or the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g).

(e-1) If during a previous admission to a facility a patient's attending physician and the review process under Subsection (b) have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, Subsections (b) through (e) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted.

(f) Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired.

(g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.

(h) This section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 or similar organization that is beyond the scope of the services or resources of the facility or agency. This section does not apply to hospice services provided by a home and community support services agency licensed under Chapter 142.]

SECTION 5. Sections 166.015, 166.052, and 166.166 Health and Safety Code, are repealed.

SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007. Any partial invalidity of this Act shall not affect the remainder.