86R13693 SCL-F
By: Parker H.B. No. 3369
A BILL TO BE ENTITLED
AN ACT
relating to advance directives and health care and treatment
decisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 166.002, Health and Safety Code, is
amended by adding Subdivision (16) to read as follows:
(16) "Reasonable medical judgment" means a medical
judgment that would be made by a reasonably prudent physician,
knowledgeable about the case and the treatment possibilities with
respect to the medical conditions involved.
SECTION 2. Sections 166.045(c) and (d), Health and Safety
Code, are amended to read as follows:
(c) If an attending physician refuses to comply with a
directive or treatment decision for a reason permitted by Section
166.046(a-1) and not prohibited by Section 166.0455 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.
(d) A physician, health professional acting under the
direction of a physician, or health care facility is not civilly or
criminally liable or subject to review or disciplinary action by
the person's appropriate licensing board if the person has complied
with the procedures and limitations outlined in Sections 166.0455
and [Section] 166.046.
SECTION 3. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0455 to read as follows:
Sec. 166.0455. LIMITATION ON REFUSAL TO EFFECTUATE CERTAIN
ADVANCE DIRECTIVES OR TREATMENT DECISIONS. A physician or other
health care professional, a health care facility, or an ethics or
medical committee shall not override or refuse to honor and comply
with a patient's advance directive or a health care or treatment
decision made by or on behalf of a patient that directs the
provision of life-sustaining treatment and shall not consider
life-sustaining treatment to be inappropriate treatment under
Section 166.046 based on:
(1) the lesser value the physician or professional,
facility, or committee places on sustaining the life of an elderly,
disabled, or terminally ill patient compared to the value of
sustaining the life of a patient who is younger, not disabled, or
not terminally ill;
(2) a disagreement between the physician or
professional, facility, or committee and the patient, or the person
authorized to make a treatment decision for the patient under
Section 166.039, over the greater weight the patient or person
places on sustaining the patient's life than the risk of
disability; or
(3) the financial condition of the patient.
SECTION 4. Section 166.046, Health and Safety Code, is
amended by amending Subsections (a), (b), (c), (d), (e), and (g) and
adding Subsections (a-1), (a-2), and (c-1) to read as follows:
(a) If an attending physician refuses to honor or comply
with a patient's advance directive or a health care or treatment
decision made by or on behalf of a patient for a reason permitted by
Subsection (a-1) and not prohibited by Section 166.0455, 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. A person may not coerce or attempt to coerce a
physician not to comply with a patient's advance directive or a
health care or treatment decision made by or on behalf of a patient
by threatening or implementing adverse employment decisions or
professional discipline.
(a-1) The ethics or medical committee reviewing the
physician's refusal under Subsection (a) shall not consider
life-sustaining treatment inappropriate unless, based on
reasonable medical judgment, the life-sustaining treatment
requested by or on behalf of the patient is:
(1) futile because the treatment is physiologically
ineffective in achieving the specific intended benefit to the
patient as intended by or on behalf of the patient; or
(2) medically inappropriate because providing the
treatment to the patient would clearly create a substantially
greater risk of causing or hastening the death of the patient than
would withholding or withdrawing the treatment.
(a-2) An ethics or medical committee shall record a meeting
held under this section.
(b) The patient, the patient's attorney, the patient's
advocate, 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) unless the patient or person responsible for the
health care decisions of the patient requests an earlier meeting,
must [shall] be informed in writing [of the committee review
process] not less than seven days [48 hours] before the meeting
called to discuss the patient's directive of:
(A) the committee review process;
(B) the right to representation by an attorney
and patient advocate present at the committee review meeting;
(C) the date, time, and location of the meeting;
and
(D) the name and title of each of the individuals
attending the meeting [, 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 department under Section 166.053; and
(4) is entitled to:
(A) attend and participate in the entire meeting;
(B) receive a written explanation of the decision
reached during the review process;
(C) receive a copy of the portion of the
patient's medical record related to the treatment received by the
patient in the facility for the lesser of:
(i) the period of the patient's current
admission to the facility; or
(ii) the preceding 30 calendar days; [and]
(D) receive a copy of all of the patient's
reasonably available diagnostic results and reports related to the
medical record provided under Paragraph (C);
(E) during the committee review meeting, have an
opportunity to:
(i) address the committee and ask questions
of the committee and others attending the meeting; and
(ii) respond to the attending physician's
or ethics or medical committee's statements; and
(F) after the ethics or medical committee has
rendered a decision:
(i) receive a written explanation of the
ethics or medical committee's decision, including, if applicable,
an explanation of why the requested treatment may be futile and
physiologically ineffective or medically inappropriate as
described by Subsection (a-1); and
(ii) receive a recording of the committee
review meeting.
(c) The written explanation required by Subsections
[Subsection] (b)(4)(B) and (F) must be included in the patient's
medical record.
(c-1) The ethics or medical committee shall not approve
withdrawing or withholding life-sustaining treatment if the ethics
or medical committee determines during the review described by
Subsection (a) that the physician refused to honor a patient's
advance directive or a health care or treatment decision made by or
on behalf of the patient for a reason prohibited by Section
166.0455.
(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, in
accordance with rules adopted by the executive commissioner, 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 ethics
or medical committee has affirmed is medically inappropriate
treatment, the patient shall be given available life-sustaining
treatment pending transfer under Subsection (d). This subsection
does not authorize withholding or withdrawing pain management
medication, medical procedures necessary to provide comfort, or any
other health care provided to alleviate a patient's pain. The
patient is responsible for any costs incurred in transferring the
patient to another facility. The attending physician, any other
physician responsible for the care of the patient, and the health
care facility are not obligated to provide life-sustaining
treatment after the 45th [10th] day after both the written decision
and the patient's medical record required under Subsection (b) are
provided to the patient or the person responsible for the health
care decisions of the patient unless ordered to do so under
Subsection (g), except that artificially administered nutrition
and hydration must be provided unless, based on reasonable medical
judgment, providing artificially administered nutrition and
hydration would:
(1) hasten the patient's death;
(2) be medically contraindicated such that the
provision of the treatment seriously exacerbates life-threatening
medical problems not outweighed by the benefit of the provision of
the treatment;
(3) result in substantial irremediable physical pain
not outweighed by the benefit of the provision of the treatment;
(4) be medically ineffective in prolonging life; or
(5) be contrary to the patient's or surrogate's
clearly documented desire not to receive artificially administered
nutrition or hydration.
(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.
SECTION 5. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Sections 166.0463 and 166.0465 to read as
follows:
Sec. 166.0463. ETHICS OR MEDICAL COMMITTEE MEMBERS. (a) An
individual may not be a member of an ethics or medical committee of
a health care facility if the individual or individual's spouse:
(1) is employed by or participates in the management
of the facility or another affiliated facility;
(2) owns or controls, directly or indirectly, an
interest in the facility or another affiliated facility; or
(3) uses or receives a substantial amount of tangible
goods, services, or money from the facility or another affiliated
facility.
(b) An ethics or medical committee must include as members:
(1) if the patient is an adherent or member of a
recognized religious organization, a chaplain, spiritual advisor,
or spiritual care professional of that religious organization;
(2) an individual with experience as an advocate for
patients and patients' family caregivers; and
(3) a representative of an established patient
advocacy organization.
Sec. 166.0465. COURT PROCEEDINGS; APPEAL; FILING FEE AND
COURT COSTS. (a) A patient, the person responsible for the
patient's health care decisions, or the person who has made the
decision regarding the advance directive or treatment decision may
file a motion for injunctive relief in any county court at law,
court having probate jurisdiction, or district court, including a
family district court, based on:
(1) a request for extension of time to effect a patient
transfer for relief under Section 166.046(g); or
(2) an allegation that a physician or other health
care professional, health care facility, or ethics or medical
committee is violating or threatening to violate this chapter.
(b) The person filing a motion under Subsection (a) shall
immediately serve a copy of the motion on the defendant.
(c) The court shall promptly set a time for a hearing on a
motion filed under Subsection (a) and shall keep a record of all
testimony and other oral proceedings in the action. The court shall
rule on the motion and issue written findings of fact and
conclusions of law not later than the fifth business day after the
date the motion is filed with the court.
(d) The time for the hearing and the date by which the court
must rule on the motion under Subsection (c) may be extended, for
good cause shown, by the court.
(e) Any party may appeal the decision of the court under
Subsection (c) to the court of appeals having jurisdiction over
civil matters in the county in which the motion was filed by filing
a notice of appeal with the clerk of the court that ruled on the
motion not later than the first business day after the date the
decision of the court was issued.
(f) On receipt of a notice of appeal under Subsection (e),
the clerk of the court that ruled on the motion shall deliver a copy
of the notice of appeal and record on appeal to the clerk of the
court of appeals. On receipt of the notice and record, the clerk of
the court of appeals shall place the appeal on the docket of the
court, and the court of appeals shall promptly issue an expedited
briefing schedule and set a time for a hearing.
(g) The court of appeals shall rule on an appeal under
Subsection (f) not later than the fifth business day after the date
the notice of appeal is filed with the court that ruled on the
motion.
(h) The times for the filing of briefs, the hearing, and the
date by which the court of appeals must rule on the appeal under
Subsection (g) may be extended, for good cause shown, by the court
of appeals.
(i) Any party may file a petition for review of the decision
of the court of appeals under Subsection (g) with the clerk of the
supreme court not later than the third business day after the date
the decision of the court of appeals was issued. Other parties may
file responses not later than the third business day after the date
the petition for review was filed. The supreme court shall grant,
deny, refuse, or dismiss the petition, without regard to whether a
reply to any response has been filed, not later than the third
business day after the date the response was due. If the supreme
court grants the petition for review, the court shall exercise the
court's sound discretion in determining how expeditiously to hear
and decide the case.
(j) If a motion is filed under Subsection (a) and the
dispute concerns whether life-sustaining treatment should be
provided to the patient, life-sustaining treatment must be provided
through midnight of the day by which a notice of appeal must be
filed unless the court directs that the life-sustaining treatment
be provided for a longer period. If a notice of appeal under
Subsection (e) is filed, life-sustaining treatment must be provided
through midnight of the day by which a petition for review to the
supreme court must be filed, unless the court of appeals directs
that the life-sustaining treatment be provided for a longer period.
If a petition for review to the supreme court is filed under
Subsection (i), life-sustaining treatment must be provided through
midnight of the day on which the supreme court denies, refuses, or
dismisses the petition or issues a ruling on the merits, unless the
supreme court directs that the life-sustaining treatment be
provided for a longer period.
(k) A filing fee or court cost may not be assessed for any
proceeding in a trial or appellate court under this section.
SECTION 6. Section 166.051, Health and Safety Code, is
amended to read as follows:
Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED.
This subchapter does not impair or supersede any legal right or
responsibility a person may have to effect the withholding or
withdrawal of life-sustaining treatment in a lawful manner,
provided that if an attending physician or health care facility is
unwilling to honor and comply with a patient's advance directive or
a treatment decision to provide life-sustaining treatment for a
reason permitted by Section 166.046(a-1) and not prohibited by
Section 166.0455, life-sustaining treatment is required to be
provided the patient, but only until a reasonable opportunity has
been afforded for transfer of the patient to another physician or
health care facility willing to comply with the advance directive
or treatment decision.
SECTION 7. Sections 166.052(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) In cases in which the attending physician refuses to
honor an advance directive or health care or treatment decision
requesting the provision of life-sustaining treatment, the
statement required by Section 166.046(b)(3)(A) shall be in
substantially the following form:
When There Is A Disagreement About Medical Treatment: The
Physician Recommends Against Certain Life-Sustaining Treatment
That You Wish To Continue
You have been given this information because you have
requested life-sustaining treatment* for yourself as the patient or
on behalf of the patient, as applicable, which the attending
physician believes is not medically appropriate. This information
is being provided to help you understand state law, your rights, and
the resources available to you in such circumstances. It outlines
the process for resolving disagreements about treatment among
patients, families, and physicians. It is based upon Section
166.046 of the Texas Advance Directives Act, codified in Chapter
166, Texas Health and Safety Code.
When an attending physician refuses to comply with an advance
directive or other request for life-sustaining treatment because of
the physician's judgment that the treatment would be medically
inappropriate, the case will be reviewed by an ethics or medical
committee. Life-sustaining treatment will be provided through the
review.
You will receive notification of this review at least seven
days [48 hours] before a meeting of the committee related to your
case. You are entitled to attend and participate in the entire
meeting with an attorney and patient advocate. With your
agreement, the meeting may be held sooner than 48 hours, if
possible.
A physician or other health care professional, a health care
facility, or an ethics or medical committee may not deny a patient
life-sustaining treatment based on:
1. the lesser value the physician or professional,
facility, or committee places on sustaining the life of an elderly,
disabled, or terminally ill patient compared to the value of
sustaining the life of a patient who is younger, not disabled, or
not terminally ill;
2. a disagreement between the physician or professional,
facility, or committee and the patient, or the person authorized to
make a treatment decision for the patient under Section 166.039,
over the greater weight the patient or person places on sustaining
the patient's life than the risk of disability; or
3. the patient's financial condition.
Life-sustaining treatment may be denied if the treatment is:
1. futile because the treatment is physiologically
ineffective in achieving the specific intended benefit to the
patient as intended by or on behalf of the patient; or
2. medically inappropriate because providing the treatment
to the patient would clearly create a substantially greater risk of
causing or hastening the death of the patient than would
withholding or withdrawing it.
You are entitled to receive a written explanation of the
decision reached during the review process and the medical judgment
and reason leading to the decision.
If after this review process both the attending physician and
the ethics or medical committee conclude that life-sustaining
treatment is medically inappropriate and yet you continue to
request such treatment, then the following procedure will occur:
1. The physician, with the help of the health care facility,
will assist you in trying to find a physician and facility willing
to provide the requested treatment.
2. You are being given a list of health care providers,
licensed physicians, health care facilities, and referral groups
that have volunteered their readiness to consider accepting
transfer, or to assist in locating a provider willing to accept
transfer, maintained by the Department of State Health Services.
You may wish to contact providers, facilities, or referral groups
on the list or others of your choice to get help in arranging a
transfer.
3. The patient will continue to be given life-sustaining
treatment until the patient can be transferred to a willing
provider for up to 45 [10] days from the time you were given both the
committee's written decision and explanation that life-sustaining
treatment is not appropriate and the patient's medical record. The
patient will continue to be given after the 45-day [10-day] period
treatment to enhance pain management and reduce suffering,
including artificially administered nutrition and hydration,
unless, based on reasonable medical judgment, providing
artificially administered nutrition and hydration would hasten the
patient's death, be medically contraindicated such that the
provision of the treatment seriously exacerbates life-threatening
medical problems not outweighed by the benefit of the provision of
the treatment, result in substantial irremediable physical pain not
outweighed by the benefit of the provision of the treatment, be
medically ineffective in prolonging life, or be contrary to the
patient's or surrogate's clearly documented desires.
4. If a transfer can be arranged, the patient will be
responsible for the costs of the transfer.
5. If a provider cannot be found willing to give the
requested treatment within 45 [10] days, life-sustaining treatment
may be withdrawn unless a court of law has ruled otherwise [granted
an extension].
6. You may ask the [appropriate district or county] court to
extend the 45-day [10-day] period if the court finds that there is a
reasonable expectation that you may find a physician or health care
facility willing to provide life-sustaining treatment if the
extension is granted. Patient medical records will be provided to
the patient or surrogate in accordance with Section 241.154, Texas
Health and Safety Code.
7. The law gives you the right to seek a court order to
require a physician or other health care professional, health care
facility, or ethics or medical committee to comply with your rights
under the Texas Advance Directives Act if the physician or
professional, facility, or committee is violating or threatening to
violate a provision of that Act. You may wish to talk to legal
counsel for further information about your right to seek a court
order.
*"Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and
without which the patient will die. The term includes both
life-sustaining medications and artificial life support, such as
mechanical breathing machines, kidney dialysis treatment, and
artificially administered nutrition and hydration. The term does
not include the administration of pain management medication or the
performance of a medical procedure considered to be necessary to
provide comfort care, or any other medical care provided to
alleviate a patient's pain.
(b) In cases in which the attending physician refuses to
comply with an advance directive or treatment decision requesting
the withholding or withdrawal of life-sustaining treatment, the
statement required by Section 166.046(b)(3)(A) shall be in
substantially the following form:
When There Is A Disagreement About Medical Treatment: The
Physician Recommends Life-Sustaining Treatment That You Wish To
Stop
You have been given this information because you have
requested the withdrawal or withholding of life-sustaining
treatment* for yourself as the patient or on behalf of the patient,
as applicable, and the attending physician disagrees with and
refuses to comply with that request. The information is being
provided to help you understand state law, your rights, and the
resources available to you in such circumstances. It outlines the
process for resolving disagreements about treatment among
patients, families, and physicians. It is based upon Section
166.046 of the Texas Advance Directives Act, codified in Chapter
166, Texas Health and Safety Code.
When an attending physician refuses to comply with an advance
directive or other request for withdrawal or withholding of
life-sustaining treatment for any reason, the case will be reviewed
by an ethics or medical committee. Life-sustaining treatment will
be provided through the review.
You will receive notification of this review at least seven
days [48 hours] before a meeting of the committee related to your
case. You are entitled to attend and participate in the entire
meeting with an attorney and patient advocate. With your
agreement, the meeting may be held sooner than 48 hours, if
possible.
You are entitled to receive a written explanation of the
decision reached during the review process and the medical judgment
and reason leading to the decision.
If you or the attending physician do not agree with the
decision reached during the review process, and the attending
physician still refuses to comply with your request to withhold or
withdraw life-sustaining treatment, then the following procedure
will occur:
1. The physician, with the help of the health care facility,
will assist you in trying to find a physician and facility willing
to withdraw or withhold the life-sustaining treatment.
2. You are being given a list of health care providers,
licensed physicians, health care facilities, and referral groups
that have volunteered their readiness to consider accepting
transfer, or to assist in locating a provider willing to accept
transfer, maintained by the Department of State Health
Services. You may wish to contact providers, facilities, or
referral groups on the list or others of your choice to get help in
arranging a transfer.
3. The law gives you a right to seek a court order to require
a physician or other health care professional, health care
facility, or ethics or medical committee to comply with your rights
under the Texas Advance Directives Act if the physician, facility,
or committee is violating or threatening to violate a provision of
that Act. You may wish to talk to legal counsel for further
information about your right to seek a court order.
*"Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and
without which the patient will die. The term includes both
life-sustaining medications and artificial life support, such as
mechanical breathing machines, kidney dialysis treatment, and
artificially administered nutrition and hydration. The term does
not include the administration of pain management medication or the
performance of a medical procedure considered to be necessary to
provide comfort care, or any other medical care provided to
alleviate a patient's pain.
SECTION 8. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.054 to read as follows:
Sec. 166.054. REPORTING REQUIREMENTS REGARDING ETHICS OR
MEDICAL COMMITTEE. (a) A health care facility shall submit an
annual report to the commission, in the form and manner prescribed
by commission rule, of all meetings of an ethics or medical
committee held under Section 166.046 during the preceding year.
(b) The report required by Subsection (a) must include:
(1) whether the health care facility held any ethics
or medical committee meetings during the preceding year; and
(2) for each meeting held during the preceding year:
(A) whether treatment was withheld or withdrawn
without the consent of the patient or person authorized to make
treatment decisions on behalf of the patient after the meeting; and
(B) whether the patient died while receiving
life-sustaining treatment at the facility.
SECTION 9. Section 166.158(c), Health and Safety Code, is
amended to read as follows:
(c) A principal's health or residential care provider who
finds it impossible to follow a directive by the agent because of a
conflict with this subchapter or the medical power of attorney
shall inform the agent as soon as is reasonably possible. The agent
may select another attending physician. The procedures and
limitations established under Sections 166.045, 166.0455, and
166.046 apply if the agent's directive concerns providing,
withholding, or withdrawing life-sustaining treatment.
SECTION 10. Section 166.166, Health and Safety Code, is
amended to read as follows:
Sec. 166.166. OTHER RIGHTS OR RESPONSIBILITIES NOT
AFFECTED. This subchapter does not limit or impair any legal right
or responsibility that any person, including a physician or health
or residential care provider, may have to make or implement health
care decisions on behalf of a person, provided that if an attending
physician or health care facility is unwilling to honor and comply
with a patient's advance directive or a treatment decision to
provide life-sustaining treatment for a reason permitted by Section
166.046(a-1) and not prohibited by Section 166.0455,
life-sustaining treatment is required to be provided the patient,
but only until a reasonable opportunity has been afforded for
transfer of the patient to another physician or health care
facility willing to comply with the advance directive or treatment
decision.
SECTION 11. Not later than December 1, 2019, the executive
commissioner of the Health and Human Services Commission shall
adopt rules for the transfer of a patient as provided by Section
166.046(d), Health and Safety Code, as amended by this Act.
SECTION 12. Not later than December 1, 2019, the Supreme
Court of Texas shall issue the rules and prescribe the forms
necessary for the process established by Section 166.0465, Health
and Safety Code, as added by this Act. The rules shall prescribe
the method of service of the application under Section 166.0465,
Health and Safety Code, and may require filing and service of
notices, petitions, and briefs electronically to the extent the
Supreme Court of Texas considers appropriate.
SECTION 13. The changes in law made by this Act apply only
to a health care or treatment decision made on or after the
effective date of this Act.
SECTION 14. 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, 2019.