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A BILL TO BE ENTITLED
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AN ACT
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relating to court authorization of elective surgery for certain |
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persons with disabilities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle E, Title 7, Health and Safety Code, is |
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amended by adding Chapter 618 to read as follows: |
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CHAPTER 618. ELECTIVE MEDICAL PROCEDURES FOR INCAPACITATED |
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INDIVIDUALS WITH DEVELOPMENTAL OR INTELLECTUAL DISABILITIES |
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Sec. 618.001. DEFINITIONS. In this chapter: |
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(1) "Elective medical procedure" means a medical |
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procedure that does not prevent or treat an illness or disease and |
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is solely based on the presence of a disability. The term includes |
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sterilization and growth attenuation. |
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(2) "Incapacitated individual with a disability" |
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means an individual who has a developmental or intellectual |
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disability and who is an incapacitated person because of age or |
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mental condition. |
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(3) "Incapacitated person" has the meaning assigned by |
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Section 601, Texas Probate Code. |
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Sec. 618.002. COURT ORDER AUTHORIZING ELECTIVE MEDICAL |
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PROCEDURE. (a) An elective medical procedure may not be performed |
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on an incapacitated individual with a disability unless a court |
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issues an order authorizing the procedure. |
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(b) There is a rebuttable presumption that the elective |
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medical procedure is not in the best interest of the incapacitated |
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individual with a disability. |
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(c) A court may issue an order authorizing the elective |
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medical procedure only if the court finds that: |
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(1) there are no medically preferable alternatives to |
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the procedure; |
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(2) the risks of the procedure and the long-term risks |
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to the individual are minimal; |
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(3) the individual will not likely suffer |
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psychological harm; and |
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(4) the procedure will promote the individual's best |
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interests. |
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Sec. 618.003. PETITION FOR COURT ORDER. The parent, |
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guardian, or managing conservator of an incapacitated individual |
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with a disability may petition a district court with probate |
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jurisdiction for an order authorizing an elective medical procedure |
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for the individual. |
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Sec. 618.004. COURT HEARING. (a) The court shall hold a |
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hearing on the petition filed under Section 618.003. |
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(b) A party to the proceeding is entitled on request to a |
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preferential setting for the hearing. |
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(c) The court shall appoint an attorney ad litem and a |
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guardian ad litem to represent the interests of the incapacitated |
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individual with a disability in the manner provided by Chapter 107, |
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Family Code, or Section 645, Texas Probate Code, as appropriate, or |
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may appoint an attorney to serve in the dual role. |
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(d) The hearing must be adversary in order to secure a |
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complete record, and the attorney ad litem shall advocate the best |
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interests of the incapacitated individual with a disability. |
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Sec. 618.005. ACCESS TO INCAPACITATED INDIVIDUAL WITH A |
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DISABILITY AND INFORMATION RELATING TO INDIVIDUAL. (a) In |
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conjunction with an appointment under this chapter, the court shall |
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issue an order authorizing the attorney ad litem and guardian ad |
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litem for the incapacitated individual with a disability, and any |
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amicus attorney, to have immediate access to the individual and any |
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information relating to the individual. |
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(b) If the attorney ad litem or guardian ad litem considers |
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it necessary, the court shall order the performance of a |
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determination under Section 593.005 to help the ad litem evaluate |
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the capacity of the incapacitated individual with a disability. |
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(c) Without requiring a further order or release, the |
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custodian of any relevant records relating to the incapacitated |
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individual with a disability, including records regarding social |
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services, law enforcement records, school records, and records of a |
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probate or court proceeding, shall provide access to a person |
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authorized to access the records under Subsection (a). |
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(d) Without requiring a further order or release, the |
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custodian of a medical, mental health, or drug or alcohol treatment |
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record of an incapacitated individual with a disability that is |
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privileged or confidential under other law shall release the record |
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to a person authorized to access the record under Subsection (a), |
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except that an individual's drug or alcohol treatment record that |
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is confidential under 42 U.S.C. Section 290dd-2 may be released |
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only as provided under applicable federal regulations. |
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(e) The disclosure of a confidential record under this |
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section does not affect the confidentiality of the record, and the |
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person provided access to the record may not disclose the record |
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further except as provided by court order or other law. |
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(f) Notwithstanding the provisions of this section, the |
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provisions of Section 159.008, Occupations Code, apply to |
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information obtained under this section. |
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(g) Records obtained under this section shall be destroyed |
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on termination of the appointment. |
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Sec. 618.006. SUBSTITUTED JUDGMENT OF ATTORNEY AD LITEM FOR |
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INCAPACITATED INDIVIDUAL WITH A DISABILITY. (a) An attorney ad |
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litem appointed to represent an incapacitated individual with a |
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disability may determine that the individual does not have the |
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capacity to meaningfully formulate the individual's objectives of |
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representation in the case. |
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(b) An attorney ad litem or an attorney appointed in the |
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dual role who determines that the individual does not have the |
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capacity to meaningfully formulate the individual's objectives of |
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representation may present to the court a position that the |
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attorney determines will serve the best interests of the |
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individual. An attorney ad litem who is not appointed in the dual |
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role shall consult with the guardian ad litem and, without being |
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bound by the guardian ad litem's opinion or recommendation, ensure |
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that the guardian ad litem's opinion and basis for any |
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recommendation regarding the best interests of the individual are |
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presented to the court. |
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Sec. 618.007. INTERVIEW AND EVALUATION ORDER BY COURT. (a) |
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If there is reason to believe that the incapacitated individual |
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with a disability may have the capacity to understand the nature and |
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consequences of the elective medical procedure, the court shall |
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interview the individual before the eighth day after the date of the |
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hearing to determine if the individual assents to the elective |
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medical procedure. The interview shall be conducted in chambers |
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and out of the presence of the parent, guardian, or managing |
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conservator of the individual. |
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(b) If the court considers it necessary, the court may order |
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the performance of a determination under Section 593.005 to help |
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the court evaluate the individual's capacity. |
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SECTION 2. This Act applies to an elective medical |
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procedure that is performed on or after the effective date of this |
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Act, regardless of the date on which it was originally scheduled. |
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SECTION 3. This Act takes effect September 1, 2013. |