BILL ANALYSIS

 

 

 

C.S.H.B. 4989

By: Bhojani

Public Health

Committee Report (Substituted)

 

 

 

BACKGROUND AND PURPOSE

 

Many Texans do not have wills or advance care documents in place. This can be partly attributed to the confusing or complicated language of the legal documents. There are alternatives to the state medical power of attorney form, but Texas is one of four states that prohibit the use of these user-friendly alternatives. C.S.H.B. 4989 seeks to resolve this issue by providing for permissible medical power of attorney forms that include user-friendly alternatives.

 

CRIMINAL JUSTICE IMPACT

 

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

 

RULEMAKING AUTHORITY

 

It is the committee's opinion that rulemaking authority is expressly granted to the executive commissioner of the Health and Human Services Commission in SECTION 2 of this bill.

 

ANALYSIS

 

C.S.H.B. 4989 amends the Health and Safety Code to require the executive commissioner of the Health and Human Services Commission (HHSC) by rule, not later than December 1, 2023, to review and designate documents to be recognized in this state as a written and validly executed medical power of attorney. The bill requires any document designated by the executive commissioner of HHSC to meet the following criteria:

·         be promulgated by a national nonprofit organization or the Commission on Law and Aging, American Bar Association;

·         be written in plain language;

·         allow a principal to provide a health care instruction;

·         designate a primary agent who is at least 18 years of age to make health care decisions for the principal when the principal lacks the capacity to make the decisions;

·         allow the principal to name an alternate agent who is at least 18 years of age to make health care decisions for the principal if the primary agent is unable or unwilling to make the decisions;

·         allow the principal to specify or limit the health care decisions an agent may make for the principal;

·         require the principal to sign and date the medical power of attorney and have the signature acknowledge before a notary public or sign and date the medical power of attorney in the presence of two qualified witnesses, at least one of whom is not:

o   designated by the declarant to make a health care or treatment decision;

o   related to the declarant by blood or marriage;

o   entitled to any part of the declarant's estate after the declarant's death under a will or codicil executed by the declarant or by operation of law;

o   the attending physician;

o   an employee of the attending physician; or

o   an employee of a health care facility in which the declarant is a patient if the employee is providing direct patient care to the declarant or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; and

·         be accepted as a validly executed medical power of attorney in at least 40 other states of the United States.

The bill requires a valid medical power of attorney to be in a form designated by the executive commissioner of HHSC in accordance with such criteria, provided the document is executed in the manner required for, or in the statutory form of, a medical power of attorney. The bill requires HHSC to post on its website a link to each document designated by the executive commissioner. Accordingly, the bill revises the provision in current law requiring a medical power of attorney to be in substantially the form as prescribed in statute, entitled the "medical power of attorney designation of health care agent," and instead provides that a medical power of attorney may be, but is not required to be, in that so entitled statutorily prescribed form. These provisions of the bill apply only to a medical power of attorney executed on or after the bill's effective date.

 

C.S.H.B. 4989 authorizes a health care provider or residential care provider or other person acting as an agent for or under the provider's control, in the absence of actual knowledge to the contrary, to presume that an advance directive is valid under the Advance Directives Act and has been validly executed by a person authorized to execute the advance directive. Such a person is not civilly or criminally liable or subject to review or disciplinary action by the appropriate licensing authority for following an advance directive or instructions of an advance directive that the provider or person presumes is valid under that act.

 

EFFECTIVE DATE

 

September 1, 2023.

 

COMPARISON OF INTRODUCED AND SUBSTITUTE

 

While C.S.H.B. 4989 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

 

The substitute includes the following provisions absent from the introduced:

·         an authorization for a health care provider or residential care provider or other person acting as an agent for or under the provider's control to presume that an advance directive is valid and has been validly executed by a person authorized to execute the advance directive; and

·         a provision establishing that such a person is not civilly or criminally liable or subject to review or disciplinary action by the appropriate licensing authority for following an advance directive or instructions of an advance directive that the provider or person presumes is valid.

 

Whereas the introduced authorized a medical power of attorney to be in a form designated by the executive commissioner, provided the document is executed in the manner required by applicable statutory provisions, or in the form prescribed by provisions relating to the form of a medical power of attorney, the substitute requires a valid medical power of attorney to be in such a form and specifies that the form prescribed by such provisions is the statutory form.

 

Whereas the introduced required any document designated by the executive commissioner to require the principal to sign the document and have the signature acknowledged before a notary public, the substitute requires such a designated document to require the principle to sign and date the medical power of attorney and have the signature acknowledged before a notary public.