87R11767 SRA-F
By: Lucio, et al. S.B. No. 1944
A BILL TO BE ENTITLED
AN ACT
relating to end-of-life issues and hospice care.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 166, Health and Safety
Code, is amended by adding Section 166.012 to read as follows:
Sec. 166.012. PATIENT AND PROVIDER AUTONOMY. This chapter
does not:
(1) authorize a surrogate or patient's proxy to
supersede the patient's wishes or desires, if known by the patient's
physician, family member, or surrogate;
(2) subject to Section 166.046, require a health care
provider to continue treatment or care considered outside the
appropriate scope of care or in violation of the provider's ethical
duties; or
(3) prohibit a health care provider or facility from
performing any test or diagnostic necessary to determine the
patient's medical condition or related functions.
SECTION 2. Section 166.046, Health and Safety Code, is
amended by adding Subsections (a-1), (a-2), and (b-1) and amending
Subsections (b), (c), and (e) to read as follows:
(a-1) When an ethics or medical committee review is
initiated under this chapter, the ethics or medical committee
shall:
(1) inform the patient or surrogate that the patient
or surrogate may discontinue the process under this section by
providing written notice to the ethics or medical committee;
(2) appoint a patient liaison familiar with
end-of-life issues and hospice care options to assist the patient
or surrogate throughout the process described by this section; and
(3) advise the patient or surrogate that the patient's
attending physician may present medical facts at the meeting of the
ethics or medical committee.
(a-2) The patient's attending physician may attend and
present facts at an ethics or medical committee review meeting
initiated under this chapter but may not participate as a member of
the committee in the review of that case.
(b) When a meeting of the ethics or medical committee is
required under this section, not later than the seventh calendar
day before the date scheduled for that meeting, unless this period
is waived by mutual agreement, the committee shall provide to the
patient or surrogate [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) notice that the patient or surrogate is entitled
to receive the continued assistance of a patient liaison to assist
the patient or surrogate throughout the review process;
(3) notice that the patient or surrogate may:
(A) seek a second opinion at the patient's or
surrogate's expense from other medical professionals regarding the
patient's medical status and treatment requirements; and
(B) communicate the resulting information to the
members of the committee for consideration before the meeting;
(4) [shall be informed of the committee review process
not less than 48 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
(5) [(B)] a copy of the registry list of health care
providers, health care facilities, and referral groups that, in
compliance with any state laws prohibiting barratry, 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.
(b-1) The patient or surrogate[; and
[(4)] is entitled to:
(1) an invitation to [(A)] attend and participate in
the meeting of the ethics or medical committee, excluding the
committee's deliberations, if the patient or surrogate elects to
attend or participate;
(2) be accompanied at the meeting by as many as five
persons, or more persons at the committee's discretion, for
support, subject to the facility's reasonable written attendance
policy as necessary to:
(A) facilitate information sharing and
discussion of the patient's medical status and treatment
requirements; and
(B) preserve the order and decorum of the
meeting;
(3) receive a written explanation of the decision
reached during the review process;
(4) [(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:
(A) [(i)] the period of the patient's current
admission to the facility; or
(B) [(ii)] the preceding 30 calendar days; and
(5) [(D)] receive a copy of all of the patient's
reasonably available diagnostic results and reports related to the
medical record provided under Subdivision (4) [Paragraph (C)].
(c) The written explanation required by Subsection (b-1)(3)
[(b)(4)(B)] must be included in the patient's medical record.
(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 14th calendar [10th] day after both the written
decision and the patient's medical record required under Subsection
(b-1) [(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.
SECTION 3. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0465 to read as follows:
Sec. 166.0465. ETHICS OR MEDICAL COMMITTEE POLICIES;
CONFLICTS OF INTEREST AND DISCRIMINATION. Each health care
facility that provides review by an ethics or medical committee
under Section 166.046 shall adopt and implement a policy on:
(1) preventing financial and health care professional
conflicts of interest that may arise during a review under that
section;
(2) allowing participation on, and interaction with,
the committee by telephone, videoconference, or other secure
electronic means; and
(3) prohibiting consideration of a patient's permanent
physical or mental disability during the review unless the
disability is relevant in determining whether a medical or surgical
intervention is medically appropriate.
SECTION 4. 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)(4) [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
calendar days [48 hours] before a meeting of the committee related
to your case. You are entitled to attend the meeting. With your
agreement, the meeting may be held sooner than seven calendar days
[48 hours], if possible.
You are entitled to receive a written explanation of the
decision reached during the review process.
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 14 calendar [10] days from the time you were
given both the committee's written decision that life-sustaining
treatment is not appropriate and the patient's medical record. The
patient will continue to be given after the 14-calendar-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 14 calendar [10] days, life-sustaining
treatment may be withdrawn unless a court of law has granted an
extension.
6. You may ask the appropriate district or county court to
extend the 14-calendar-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.
*"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)(4) [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
calendar days [48 hours] before a meeting of the committee related
to your case. You are entitled to attend the meeting. With your
agreement, the meeting may be held sooner than seven calendar days
[48 hours], if possible.
You are entitled to receive a written explanation of the
decision reached during the review process.
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.
*"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 5. 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 PROCESSES. (a) On submission of a health care
facility's application to renew its license, a facility in which
one or more meetings of an ethics or medical committee are held
under this chapter shall file a report with the department that
contains aggregate information regarding the number of cases
initiated by an ethics or medical committee under Section 166.046
and the disposition of those cases by the facility.
(b) Aggregate data submitted to the department under this
section may include only the following:
(1) the total number of patients for whom a review by
the ethics or medical committee was initiated under Section
166.046(b);
(2) the number of patients under Subdivision (1) who
were transferred to:
(A) another physician within the same facility;
or
(B) a different facility;
(3) the number of patients under Subdivision (1) who
were discharged to home;
(4) the number of patients under Subdivision (1) for
whom treatment was withheld or withdrawn pursuant to surrogate
consent:
(A) before the decision was rendered following a
review under Section 166.046(b);
(B) after the decision was rendered following a
review under Section 166.046(b); or
(C) during or after the 14-calendar-day period
described by Section 166.046(e);
(5) the average length of stay before a review meeting
is held under Section 166.046(b); and
(6) the number of patients under Subdivision (1) who
died while still receiving life-sustaining treatment:
(A) before the review meeting under Section
166.046(b);
(B) during the 14-calendar-day period described
by Section 166.046(e); or
(C) during any extension of the 14-calendar-day
period described by Section 166.046(e).
(c) The report required by this section may not contain any
data specific to an individual patient or physician.
(d) The executive commissioner shall adopt rules to:
(1) establish a standard form for the reporting
requirements of this section; and
(2) post on the department's Internet website the data
submitted under Subsection (b) in the format provided by rule.
(e) Data collected as required by, or submitted to the
department under, this section:
(1) is not admissible in a civil or criminal
proceeding in which a physician, health care professional acting
under the direction of a physician, or health care facility is a
defendant; and
(2) may not be used in relation to any disciplinary
action by a licensing board or other body with professional or
administrative oversight over a physician, health care
professional acting under the direction of a physician, or health
care facility.
SECTION 6. Section 166.202(a), Health and Safety Code, is
amended to read as follows:
(a) This subchapter applies to a DNR order issued for a
patient who has been admitted to [in] a health care facility or
hospital.
SECTION 7. Sections 166.203(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) A DNR order issued for a patient is valid only if a
physician providing direct care to the patient [patient's attending
physician] issues the order, the order is dated, and the order:
(1) is issued in compliance with:
(A) the written and dated directions of a patient
who was competent at the time the patient wrote the directions;
(B) the oral directions of a competent patient
delivered to or observed by two competent adult witnesses, at least
one of whom must be a person not listed under Section 166.003(2)(E)
or (F);
(C) the directions in an advance directive
enforceable under Section 166.005 or executed in accordance with
Section 166.032, 166.034, [or] 166.035, 166.082, 166.084, or
166.085;
(D) the directions of:
(i) a patient's legal guardian;
(ii) a patient's [or] agent under a medical
power of attorney acting in accordance with Subchapter D; or
(iii) a patient's proxy as designated and
authorized by a directive executed or issued in accordance with
Subchapter B to make a treatment decision for the patient if the
patient becomes incompetent or otherwise mentally or physically
incapable of communication; or
(E) a treatment decision made in accordance with
Section 166.039; or
(2) is not contrary to the directions of a patient who
was competent at the time the patient conveyed the directions and,
in the reasonable medical judgment of the [patient's attending]
physician issuing the order:
(A) the patient's death is imminent, regardless
of the provision of cardiopulmonary resuscitation; and
(B) the DNR order is medically appropriate.
(b) The DNR order:
(1) may be issued and entered in any format acceptable
under the policies of the health care facility or hospital; and
(2) takes effect at the time the order is issued,
provided the order is placed in the patient's medical record as soon
as practicable.
(c) Unless notice has already been provided in accordance
with Section 166.204(a-1), before [Before] placing in a patient's
medical record a DNR order issued under Subsection (a)(2), a [the]
physician, a physician assistant, a nurse, or another [other]
person acting on behalf of a health care facility or hospital shall:
(1) inform the patient of the order's issuance; or
(2) if the patient is incompetent, make a reasonably
diligent effort to contact or cause to be contacted and inform of
the order's issuance:
(A) the patient's known agent under a medical
power of attorney or legal guardian; or
(B) for a patient who does not have a known agent
under a medical power of attorney or legal guardian, a person
described by Section 166.039(b)(1), (2), or (3).
SECTION 8. Section 166.204, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) If a physician issues a DNR order under Section
166.203(a)(2), a physician, a physician assistant, a nurse, or
another person acting on behalf of a health care facility or
hospital shall provide notice of the order to the appropriate
persons in accordance with Subsection (a-1) of this section or
Section 166.203(c).
(a-1) Unless notice has already been provided in accordance
with Section 166.203(c), if [If] an individual arrives at a health
care facility or hospital that is treating a patient for whom a DNR
order is issued under Section 166.203(a)(2) and the individual
notifies a physician, physician assistant, or nurse providing
direct care to the patient of the individual's arrival, the
physician, physician assistant, or nurse who has actual knowledge
of the order shall disclose the order to the individual, provided
the individual is:
(1) the patient's known agent under a medical power of
attorney or legal guardian; or
(2) for a patient who does not have a known agent under
a medical power of attorney or legal guardian, a person described by
Section 166.039(b)(1), (2), or (3).
SECTION 9. Sections 166.205(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) A physician providing direct care to a patient for whom
a DNR order is issued shall revoke the patient's DNR order if:
(1) the advance directive on which the DNR order is
based is properly revoked in accordance with applicable provisions
of this chapter; or
(2) the patient or the individual at whose direction
the DNR order was issued[, as applicable, the patient's agent under
a medical power of attorney or the patient's legal guardian if the
patient is incompetent:
[(1) effectively revokes an advance directive, in
accordance with Section 166.042, for which a DNR order is issued
under Section 166.203(a); or
[(2)] expresses to any person providing direct care to
the patient a revocation of consent to or intent to revoke a DNR
order issued under Section 166.203(a).
(b) A person providing direct care to a patient under the
supervision of a physician shall notify the physician of the
revocation of the advance directive or the request to revoke a DNR
order under Subsection (a).
(c) The [A patient's attending] physician who issued [may at
any time revoke] a DNR order issued under Section 166.203(a)(2), or
any other attending physician providing direct care to the patient
in accordance with applicable hospital policies, may at any time
revoke the DNR order.
SECTION 10. Sections 166.206(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) If a [an attending] physician, health care facility, or
hospital does not wish to execute or comply with a DNR order or the
patient's instructions concerning the provision of cardiopulmonary
resuscitation, the physician, facility, or hospital shall inform
the patient, the legal guardian or qualified relatives of the
patient, or the agent of the patient under a medical power of
attorney of the benefits and burdens of cardiopulmonary
resuscitation.
(b) If, after receiving notice under Subsection (a), the
patient or another person authorized to act on behalf of the patient
and the [attending] physician, health care facility, or hospital
remain in disagreement, the physician, facility, or hospital shall
make a reasonable effort to transfer the patient to another
physician, facility, or hospital willing to execute or comply with
a DNR order or the patient's instructions concerning the provision
of cardiopulmonary resuscitation.
SECTION 11. Section 166.209, Health and Safety Code, is
amended to read as follows:
Sec. 166.209. ENFORCEMENT. (a) Subject to Sections
166.205(d), 166.207, and 166.208, a [A] physician, physician
assistant, nurse, or other person commits an offense if, with the
specific intent to violate the requirements of this subchapter, the
person intentionally:
(1) conceals, cancels, effectuates, or falsifies
another person's DNR order; or
(2) [if the person intentionally] conceals or
withholds personal knowledge of another person's revocation of a
DNR order [in violation of this subchapter].
(a-1) An offense under Subsection (a) [this subsection] is a
Class A misdemeanor. This section [subsection] does not preclude
prosecution for any other applicable offense.
(b) Subject to Sections 166.205(d), 166.207, and 166.208, a
[A] physician, health care professional, health care facility,
hospital, or entity is subject to review and disciplinary action by
the appropriate licensing authority for intentionally:
(1) failing to effectuate a DNR order in violation of
this subchapter; or
(2) issuing a DNR order in violation of this
subchapter.
SECTION 12. Section 313.004(a), Health and Safety Code, is
amended to read as follows:
(a) If an adult patient of a home and community support
services agency or in a hospital or nursing home, or an adult inmate
of a county or municipal jail, is comatose, incapacitated, or
otherwise mentally or physically incapable of communication and
does not have a legal guardian or an agent under a medical power of
attorney who can concur with the patient's attending physician, an
adult surrogate from the following list, in order of priority, who
has decision-making capacity, is available after a reasonably
diligent inquiry, and is willing to consent to medical treatment on
behalf of the patient, may consent to medical treatment on behalf of
the patient in concurrence with the patient's attending physician:
(1) the patient's spouse;
(2) the patient's reasonably available adult children
[an adult child of the patient who has the waiver and consent of all
other qualified adult children of the patient to act as the sole
decision-maker];
(3) [a majority of] the patient's parents [reasonably
available adult children];
(4) the patient's nearest living relative [parents];
or
(5) if the patient does not have a legal guardian or an
agent under a medical power of attorney and a person listed in this
subsection is not available, another licensed physician who is not
involved in the direct treatment of the patient [the individual
clearly identified to act for the patient by the patient before the
patient became incapacitated, the patient's nearest living
relative, or a member of the clergy].
SECTION 13. Not later than March 1, 2022, the executive
commissioner of the Health and Human Services Commission shall
adopt the rules necessary to implement the changes in law made by
this Act to Chapter 166, Health and Safety Code.
SECTION 14. Chapter 166, Health and Safety Code, as amended
by this Act, applies only to a review, consultation, disagreement,
or other action relating to a health care or treatment decision made
on or after April 1, 2022. A review, consultation, disagreement, or
other action relating to a health care or treatment decision made
before April 1, 2022, is governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose.
SECTION 15. Chapter 166, Health and Safety Code, as amended
by this Act, applies only to a do-not-resuscitate order issued on or
after the effective date of this Act. A do-not-resuscitate order
issued before the effective date of this Act is governed by the law
in effect on the date the order was issued, and that law is
continued in effect for that purpose.
SECTION 16. (a) A health care facility shall adopt the
policy required by Section 166.0465, Health and Safety Code, as
added by this Act, not later than April 1, 2022.
(b) A policy adopted under Section 166.0465, Health and
Safety Code, as added by this Act, applies only to an ethics or
medical committee review conducted on or after April 1, 2022.
SECTION 17. This Act takes effect September 1, 2021.