Texas 2009 - 81st Regular

Texas House Bill HB3325 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R11609 YDB-F
2	2	By: Hughes H.B. No. 3325
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to advance directives or health care or treatment
8	8	decisions made by or on behalf of patients.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 166.039, Health and Safety Code, is
11	11	amended by amending Subsection (g) and adding Subsection (h) to
12	12	read as follows:
13	13	(g) A person listed in Subsection (b) who wishes to
14	14	challenge a treatment decision made under this section must apply
15	15	for temporary guardianship under Section 875, Texas Probate Code,
16	16	and allege that the treatment decision:
17	17	(1) violates the patient's directions provided in an
18	18	advance directive or as otherwise known;
19	19	(2) if the patient's directions are unknown, is
20	20	inconsistent with the patient's known values; or
21	21	(3) if the matter cannot be determined using a
22	22	standard described by Subdivision (1) or (2), is clearly
23	23	inconsistent with the patient's best interests, beginning with a
24	24	presumption for life.
25	25	(h) A physician, medical or ethics committee, or health care
26	26	facility treating a patient may participate as a party in the
27	27	guardianship proceedings described by Subsection (g). The court
28	28	may waive applicable fees in that proceeding.
29	29	SECTION 2. Section 166.045(c), Health and Safety Code, is
30	30	amended to read as follows:
31	31	(c) If an attending physician refuses to comply with a
32	32	directive or treatment decision requesting the provision of
33	33	life-sustaining treatment to a patient and either the attending
34	34	physician does not wish to follow the procedure established under
35	35	Section 166.046 or the procedure is not applicable, life-sustaining
36	36	treatment shall be provided to the patient[, but only] until [a
37	37	reasonable opportunity has been afforded for the transfer of] the
38	38	patient is transferred to another physician or health care facility
39	39	willing to comply with the directive or treatment decision.
40	40	SECTION 3. Sections 166.046(b) and (e), Health and Safety
41	41	Code, are amended to read as follows:
42	42	(b) The patient or the person responsible for the health
43	43	care decisions of the individual who has made the decision
44	44	regarding the directive or treatment decision:
45	45	(1) may be given a written description of the ethics or
46	46	medical committee review process and any other policies and
47	47	procedures related to this section adopted by the health care
48	48	facility;
49	49	(2) shall be informed of the committee review process
50	50	not less than 48 hours before the meeting called to discuss the
51	51	patient's directive, unless the time period is waived by mutual
52	52	agreement;
53	53	(3) at the time of being so informed, shall be
54	54	provided:
55	55	(A) a copy of the appropriate statement set forth
56	56	in Section 166.052; and
57	57	(B) a copy of the registry list of health care
58	58	providers and referral groups that have volunteered their readiness
59	59	to consider accepting transfer or to assist in locating a provider
60	60	willing to accept transfer that is posted on the website maintained
61	61	by the Texas Health Care Information Council under Section 166.053;
62	62	and
63	63	(4) is entitled to:
64	64	(A) attend the meeting and be represented by
65	65	legal counsel at the meeting; and
66	66	(B) receive a written explanation of the decision
67	67	reached during the review process.
68	68	(e) If the patient or the person responsible for the health
69	69	care decisions of the patient is requesting life-sustaining
70	70	treatment that the attending physician has decided and the review
71	71	process has affirmed is inappropriate treatment, the patient shall
72	72	be given available life-sustaining treatment pending transfer
73	73	under Subsection (d). The patient is responsible for any costs
74	74	incurred in transferring the patient to another facility. [The
75	75	physician and the health care facility are not obligated to provide
76	76	life-sustaining treatment after the 10th day after the written
77	77	decision required under Subsection (b) is provided to the patient
78	78	or the person responsible for the health care decisions of the
79	79	patient unless ordered to do so under Subsection (g).]
80	80	SECTION 4. Subchapter B, Chapter 166, Health and Safety
81	81	Code, is amended by adding Section 166.0465 to read as follows:
82	82	Sec. 166.0465. COURT PROCEEDINGS; APPEAL; FILING FEE AND
83	83	COURT COSTS. (a) A patient, the person responsible for the
84	84	patient's health care decisions, or the person who has made the
85	85	decision regarding the advance directive or treatment decision may
86	86	file a motion for injunctive relief in any county court at law,
87	87	court having probate jurisdiction, or district court, including a
88	88	family district court, based on an allegation that a physician,
89	89	ethics or medical committee, or health care facility is violating
90	90	or is threatening to violate the patient's rights under this
91	91	chapter and shall immediately serve a copy of the motion on the
92	92	defendant.
93	93	(b) The court shall promptly set a time for a hearing on a
94	94	motion filed under Subsection (a) and shall keep a record of all
95	95	testimony and other oral proceedings in the action. The court shall
96	96	rule on the motion and issue written findings of fact and
97	97	conclusions of law not later than the fifth business day after the
98	98	date the motion is filed with the court. The time for the hearing
99	99	and the date by which the court must rule on the motion may be
100	100	extended by stipulation of the parties, with the approval of the
101	101	court.
102	102	(c) Any party may appeal the decision of the court under
103	103	Subsection (b) to the court of appeals having jurisdiction over
104	104	civil matters in the county in which the motion was filed by filing
105	105	a notice of appeal with the clerk of the court that ruled on the
106	106	motion not later than the first business day after the date the
107	107	decision of the court was issued.
108	108	(d) On receipt of a notice of appeal under Subsection (c),
109	109	the clerk of the court that ruled on the motion shall deliver a copy
110	110	of the notice of appeal and record on appeal to the clerk of the
111	111	court of appeals. On receipt of the notice and record, the clerk of
112	112	the court of appeals shall place the appeal on the docket of the
113	113	court, and the court of appeals shall promptly issue an expedited
114	114	briefing schedule and set a time for a hearing.
115	115	(e) The court of appeals shall rule on an appeal under
116	116	Subsection (d) not later than the fifth business day after the date
117	117	the notice of appeal is filed with the court that ruled on the
118	118	motion. The times for the filing of briefs, the hearing, and the
119	119	date by which the court of appeals must rule on the appeal may be
120	120	extended by stipulation of the parties, with the approval of the
121	121	court of appeals.
122	122	(f) Any party may file a petition for review of the decision
123	123	of the court of appeals with the clerk of the supreme court not
124	124	later than the third business day after the date the decision of the
125	125	court of appeals was issued. Other parties may file responses not
126	126	later than the third business day after the date the petition for
127	127	review was filed. The supreme court shall grant, deny, refuse, or
128	128	dismiss the petition for want of jurisdiction, without regard to
129	129	whether a reply to any response has been filed, not later than the
130	130	third business day after the date the response was due. If the
131	131	supreme court grants the petition for review, it shall exercise its
132	132	sound discretion in determining how expeditiously to hear and
133	133	decide the case.
134	134	(g) If a motion is filed under Subsection (a) and the
135	135	dispute concerns whether life-sustaining treatment should be
136	136	provided to the patient, life-sustaining treatment shall be
137	137	provided through midnight of the day by which a notice of appeal
138	138	must be filed unless the court directs that it be provided for a
139	139	longer period. If a notice of appeal under Subsection (c) is filed,
140	140	life-sustaining treatment shall be provided through midnight of the
141	141	day by which a petition for review to the supreme court must be
142	142	filed, unless the court of appeals directs that it be provided for a
143	143	longer period. If a petition for review to the supreme court is
144	144	filed under Subsection (f), life-sustaining treatment shall be
145	145	provided through midnight of the day on which the supreme court
146	146	denies, refuses, or dismisses the petition or issues a ruling on the
147	147	merits, unless the supreme court directs that it be provided for a
148	148	longer period.
149	149	(h) A filing fee or court cost may not be assessed for any
150	150	proceeding in a trial or appellate court under this section.
151	151	SECTION 5. Section 166.051, Health and Safety Code, is
152	152	amended to read as follows:
153	153	Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED.
154	154	This subchapter does not impair or supersede any legal right or
155	155	responsibility a person may have to effect the withholding or
156	156	withdrawal of life-sustaining treatment in a lawful manner,
157	157	provided that if an attending physician or health care facility is
158	158	unwilling to honor a patient's advance directive or a treatment
159	159	decision to provide life-sustaining treatment, life-sustaining
160	160	treatment must [is required to] be provided to the patient in
161	161	accordance with this chapter[, but only until a reasonable
162	162	opportunity has been afforded for transfer of the patient to
163	163	another physician or health care facility willing to comply with
164	164	the advance directive or treatment decision].
165	165	SECTION 6. Sections 166.052(a) and (b), Health and Safety
166	166	Code, are amended to read as follows:
167	167	(a) In cases in which the attending physician refuses to
168	168	honor an advance directive or treatment decision requesting the
169	169	provision of life-sustaining treatment, the statement required by
170	170	Section 166.046(b)(3)(A) [166.046(b)(2)(A)] shall be in
171	171	substantially the following form:
172	172	When There Is A Disagreement About Medical Treatment: The
173	173	Physician Recommends Against Life-Sustaining Treatment That You
174	174	Wish To Continue
175	175	You have been given this information because you have
176	176	requested life-sustaining treatment,* which the attending
177	177	physician believes is not appropriate. This information is being
178	178	provided to help you understand state law, your rights, and the
179	179	resources available to you in such circumstances. It outlines the
180	180	process for resolving disagreements about treatment among
181	181	patients, families, and physicians. It is based upon Section
182	182	166.046 of the Texas Advance Directives Act, codified in Chapter
183	183	166, [of the Texas] Health and Safety Code.
184	184	When an attending physician refuses to comply with an advance
185	185	directive or other request for life-sustaining treatment because of
186	186	the physician's judgment that the treatment would be inappropriate,
187	187	the case will be reviewed by an ethics or medical committee.
188	188	Life-sustaining treatment will be provided through the review.
189	189	You will receive notification of this review at least 48
190	190	hours before a meeting of the committee related to your case. You
191	191	are entitled to attend the meeting and be represented by legal
192	192	counsel at the meeting. With your agreement, the meeting may be
193	193	held sooner than 48 hours, if possible.
194	194	You are entitled to receive a written explanation of the
195	195	decision reached during the review process.
196	196	If after this review process both the attending physician and
197	197	the ethics or medical committee conclude that life-sustaining
198	198	treatment is inappropriate and yet you continue to request such
199	199	treatment, then the following procedure will occur:
200	200	1. The physician, with the help of the health care facility,
201	201	will assist you in trying to find a physician and facility willing
202	202	to provide the requested treatment.
203	203	2. You are being given a list of health care providers and
204	204	referral groups that have volunteered their readiness to consider
205	205	accepting transfer, or to assist in locating a provider willing to
206	206	accept transfer, maintained by the Texas Health Care Information
207	207	Council. You may wish to contact providers or referral groups on
208	208	the list or others of your choice to get help in arranging a
209	209	transfer.
210	210	3. The patient will [continue to] be given life-sustaining
211	211	treatment until he or she can be transferred to a willing provider
212	212	[for up to 10 days from the time you were given the committee's
213	213	written decision that life-sustaining treatment is not
214	214	appropriate].
215	215	4. If a transfer can be arranged, the patient will be
216	216	responsible for the costs of the transfer.
217	217	5. The law gives you a right to seek a court order to require a
218	218	physician, ethics or medical committee, or health care facility to
219	219	comply with your rights under the Texas Advance Directives Act if
220	220	the physician, committee, or facility is violating or threatening
221	221	to violate a provision of that Act. You may wish to talk to legal
222	222	counsel for further information about your right to seek a court
223	223	order [If a provider cannot be found willing to give the requested
224	224	treatment within 10 days, life-sustaining treatment may be
225	225	withdrawn unless a court of law has granted an extension.
226	226	[6. You may ask the appropriate district or county court to
227	227	extend the 10-day period if the court finds that there is a
228	228	reasonable expectation that a physician or health care facility
229	229	willing to provide life-sustaining treatment will be found if the
230	230	extension is granted].
231	231	*"Life-sustaining treatment" means treatment that, based on
232	232	reasonable medical judgment, sustains the life of a patient and
233	233	without which the patient will die. The term includes both
234	234	life-sustaining medications and artificial life support, such as
235	235	mechanical breathing machines, kidney dialysis treatment, and
236	236	artificial nutrition and hydration. The term does not include the
237	237	administration of pain management medication or the performance of
238	238	a medical procedure considered to be necessary to provide comfort
239	239	care, or any other medical care provided to alleviate a patient's
240	240	pain.
241	241	(b) In cases in which the attending physician refuses to
242	242	comply with an advance directive or treatment decision requesting
243	243	the withholding or withdrawal of life-sustaining treatment, the
244	244	statement required by Section 166.046(b)(3)(A) shall be in
245	245	substantially the following form:
246	246	When There Is A Disagreement About Medical Treatment: The
247	247	Physician Recommends Life-Sustaining Treatment That You Wish To
248	248	Stop
249	249	You have been given this information because you have
250	250	requested the withdrawal or withholding of life-sustaining
251	251	treatment* and the attending physician refuses to comply with that
252	252	request. The information is being provided to help you understand
253	253	state law, your rights, and the resources available to you in such
254	254	circumstances. It outlines the process for resolving disagreements
255	255	about treatment among patients, families, and physicians. It is
256	256	based upon Section 166.046 of the Texas Advance Directives Act,
257	257	codified in Chapter 166, [of the Texas] Health and Safety Code.
258	258	When an attending physician refuses to comply with an advance
259	259	directive or other request for withdrawal or withholding of
260	260	life-sustaining treatment for any reason, the case will be reviewed
261	261	by an ethics or medical committee. Life-sustaining treatment will
262	262	be provided through the review.
263	263	You will receive notification of this review at least 48
264	264	hours before a meeting of the committee related to your case. You
265	265	are entitled to attend the meeting and be represented by legal
266	266	counsel at the meeting. With your agreement, the meeting may be
267	267	held sooner than 48 hours, if possible.
268	268	You are entitled to receive a written explanation of the
269	269	decision reached during the review process.
270	270	If you or the attending physician do not agree with the
271	271	decision reached during the review process, and the attending
272	272	physician still refuses to comply with your request to withhold or
273	273	withdraw life-sustaining treatment, then the following procedure
274	274	will occur:
275	275	1. The physician, with the help of the health care facility,
276	276	will assist you in trying to find a physician and facility willing
277	277	to withdraw or withhold the life-sustaining treatment.
278	278	2. You are being given a list of health care providers and
279	279	referral groups that have volunteered their readiness to consider
280	280	accepting transfer, or to assist in locating a provider willing to
281	281	accept transfer, maintained by the Texas Health Care Information
282	282	Council. You may wish to contact providers or referral groups on
283	283	the list or others of your choice to get help in arranging a
284	284	transfer.
285	285	3. The law gives you a right to seek a court order to require
286	286	a physician, ethics or medical committee, or health care facility
287	287	to comply with your rights under the Texas Advance Directives Act if
288	288	the physician, committee, or facility is violating or threatening
289	289	to violate a provision of that Act. You may wish to talk to legal
290	290	counsel for further information about your right to seek a court
291	291	order.
292	292	*"Life-sustaining treatment" means treatment that, based on
293	293	reasonable medical judgment, sustains the life of a patient and
294	294	without which the patient will die. The term includes both
295	295	life-sustaining medications and artificial life support, such as
296	296	mechanical breathing machines, kidney dialysis treatment, and
297	297	artificial nutrition and hydration. The term does not include the
298	298	administration of pain management medication or the performance of
299	299	a medical procedure considered to be necessary to provide comfort
300	300	care, or any other medical care provided to alleviate a patient's
301	301	pain.
302	302	SECTION 7. Sections 166.046(f) and (g), Health and Safety
303	303	Code, are repealed.
304	304	SECTION 8. This Act takes effect immediately if it receives
305	305	a vote of two-thirds of all the members elected to each house, as
306	306	provided by Section 39, Article III, Texas Constitution. If this
307	307	Act does not receive the vote necessary for immediate effect, this
308	308	Act takes effect September 1, 2009.