Texas 2023 - 88th Regular

Texas House Bill HB3009 Compare Versions

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1	1	H.B. No. 3009
2	2
3	3
4	4	AN ACT
5	5	relating to the health care providers authorized to examine a
6	6	person to determine whether the person is incapacitated for
7	7	purposes of certain guardianship proceedings.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subchapter C, Chapter 1101, Estates Code, is
10	10	amended by adding Sections 1101.100 and 1101.1011 to read as
11	11	follows:
12	12	Sec. 1101.100. DEFINITIONS. In this subchapter:
13	13	(1) "Advanced practice registered nurse" has the
14	14	meaning assigned by Section 301.152, Occupations Code.
15	15	(2) "Physician" means an individual licensed by the
16	16	Texas Medical Board to practice medicine in this state.
17	17	Sec. 1101.1011. LIMITATION ON ACTS BY ADVANCED PRACTICE
18	18	REGISTERED NURSE. An advanced practice registered nurse may act
19	19	under this subchapter only if the advanced practice registered
20	20	nurse is acting under a physician's delegation authority and
21	21	supervision in accordance with Chapter 157, Occupations Code.
22	22	SECTION 2. Section 1101.103, Estates Code, is amended to
23	23	read as follows:
24	24	Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN
25	25	ADULTS: HEALTH CARE PROVIDER [PHYSICIAN] EXAMINATION. (a) Except
26	26	as provided by Section 1101.104, the court may not grant an
27	27	application to create a guardianship for an incapacitated person,
28	28	other than a minor or person for whom it is necessary to have a
29	29	guardian appointed only to receive funds from a governmental
30	30	source, unless the applicant presents to the court a written letter
31	31	or certificate from a physician or advanced practice registered
32	32	nurse [licensed in this state] that is:
33	33	(1) dated not earlier than the 120th day before the
34	34	date the application is filed; and
35	35	(2) based on an examination the physician or advanced
36	36	practice registered nurse performed not earlier than the 120th day
37	37	before the date the application is filed.
38	38	(a-1) For purposes of Subsection (a), a letter or
39	39	certificate based on an examination by an advanced practice
40	40	registered nurse must be signed by the supervising physician.
41	41	(b) The letter or certificate must:
42	42	(1) describe the nature, degree, and severity of the
43	43	proposed ward's incapacity, including any functional deficits
44	44	regarding the proposed ward's ability to:
45	45	(A) handle business and managerial matters;
46	46	(B) manage financial matters;
47	47	(C) operate a motor vehicle;
48	48	(D) make personal decisions regarding residence,
49	49	voting, and marriage; and
50	50	(E) consent to medical, dental, psychological,
51	51	or psychiatric treatment;
52	52	(2) in providing a description under Subdivision (1)
53	53	regarding the proposed ward's ability to operate a motor vehicle
54	54	and make personal decisions regarding voting, state whether in the
55	55	physician's opinion the proposed ward:
56	56	(A) has the mental capacity to vote in a public
57	57	election; and
58	58	(B) has the ability to safely operate a motor
59	59	vehicle;
60	60	(3) provide an evaluation of the proposed ward's
61	61	physical condition and mental functioning and summarize the
62	62	proposed ward's medical history if reasonably available;
63	63	(3-a) in providing an evaluation under Subdivision (3),
64	64	state whether improvement in the proposed ward's physical condition
65	65	and mental functioning is possible and, if so, state the period
66	66	after which the proposed ward should be reevaluated to determine
67	67	whether a guardianship continues to be necessary;
68	68	(4) state how or in what manner the proposed ward's
69	69	ability to make or communicate responsible decisions concerning
70	70	himself or herself is affected by the proposed ward's physical or
71	71	mental health, including the proposed ward's ability to:
72	72	(A) understand or communicate;
73	73	(B) recognize familiar objects and individuals;
74	74	(C) solve problems;
75	75	(D) reason logically; and
76	76	(E) administer to daily life activities with and
77	77	without supports and services;
78	78	(5) state whether any current medication affects the
79	79	proposed ward's demeanor or the proposed ward's ability to
80	80	participate fully in a court proceeding;
81	81	(6) describe the precise physical and mental
82	82	conditions underlying a diagnosis of a mental disability, and state
83	83	whether the proposed ward would benefit from supports and services
84	84	that would allow the individual to live in the least restrictive
85	85	setting;
86	86	(6-a) state whether a guardianship is necessary for the
87	87	proposed ward and, if so, whether specific powers or duties of the
88	88	guardian should be limited if the proposed ward receives supports
89	89	and services; and
90	90	(7) include any other information required by the
91	91	court.
92	92	(b-1) For purposes of Subsection (b)(2), the opinion of an
93	93	advanced practice registered nurse that is based on an examination
94	94	of a proposed ward conducted by the advanced practice registered
95	95	nurse under delegation from and supervision by a physician and is
96	96	signed by the supervising physician is considered the supervising
97	97	physician's opinion.
98	98	(c) If the court determines it is necessary, the court may
99	99	appoint the necessary physicians or advanced practice registered
100	100	nurses to examine the proposed ward. The court must make its
101	101	determination with respect to the necessity for a physician's or
102	102	advanced practice registered nurse's examination of the proposed
103	103	ward at a hearing held for that purpose. Not later than the fourth
104	104	day before the date of the hearing, the applicant shall give to the
105	105	proposed ward and the proposed ward's attorney ad litem written
106	106	notice specifying the purpose and the date and time of the hearing.
107	107	(d) A physician or advanced practice registered nurse who
108	108	examines the proposed ward, other than a physician, advanced
109	109	practice registered nurse, or psychologist who examines the
110	110	proposed ward under Section 1101.104(2), shall make available for
111	111	inspection by the attorney ad litem appointed to represent the
112	112	proposed ward a written letter or certificate from the physician or
113	113	advanced practice registered nurse that complies with the
114	114	requirements of Subsections (a) and (b).
115	115	SECTION 3. Section 1101.104, Estates Code, is amended to
116	116	read as follows:
117	117	Sec. 1101.104. EXAMINATIONS AND DOCUMENTATION REGARDING
118	118	INTELLECTUAL DISABILITY. (a) If an intellectual disability is the
119	119	basis of the proposed ward's alleged incapacity, the court may not
120	120	grant an application to create a guardianship for the proposed ward
121	121	unless the applicant presents to the court a written letter or
122	122	certificate that:
123	123	(1) complies with Sections 1101.103(a) and (b); or
124	124	(2) shows that not earlier than 24 months before the
125	125	hearing date:
126	126	(A) the proposed ward has been examined by a
127	127	physician or advanced practice registered nurse or by a
128	128	psychologist licensed in this state or certified by the Health and
129	129	Human [Department of Aging and Disability] Services Commission to
130	130	perform the examination, in accordance with rules of the executive
131	131	commissioner of the commission [Health and Human Services
132	132	Commission] governing examinations of that kind, and the
133	133	[physician's or psychologist's] written findings and
134	134	recommendations include a determination of an intellectual
135	135	disability; or
136	136	(B) a physician or advanced practice registered
137	137	nurse or a psychologist licensed in this state or certified by the
138	138	Health and Human [Department of Aging and Disability] Services
139	139	Commission to perform examinations described by Paragraph (A)
140	140	updated or endorsed in writing a prior determination of an
141	141	intellectual disability for the proposed ward made by a physician
142	142	or by a psychologist licensed in this state or certified by the
143	143	commission [department].
144	144	(a-1) For purposes of Subsection (a), a letter or
145	145	certificate based on an examination by an advanced practice
146	146	registered nurse must be signed by the supervising physician.
147	147	(b) For purposes of Subsection (a)(2)(B), the determination
148	148	of an advanced practice registered nurse that is based on an
149	149	examination of a proposed ward conducted by the advanced practice
150	150	registered nurse under delegation from and supervision by a
151	151	physician and is signed by the supervising physician is considered
152	152	the supervising physician's determination.
153	153	SECTION 4. Section 1102.002, Estates Code, is amended to
154	154	read as follows:
155	155	Sec. 1102.002. ESTABLISHMENT OF PROBABLE CAUSE FOR
156	156	INVESTIGATION. (a) In this section:
157	157	(1) "Advanced practice registered nurse" has the
158	158	meaning assigned by Section 301.152, Occupations Code.
159	159	(2) "Physician" has the meaning assigned by Section
160	160	1101.100.
161	161	(b) An advanced practice registered nurse may act under this
162	162	section only if the advanced practice registered nurse is acting
163	163	under a physician's delegation authority and supervision in
164	164	accordance with Chapter 157, Occupations Code.
165	165	(c) To establish probable cause under Section 1102.001, the
166	166	court may require:
167	167	(1) an information letter about the person believed to
168	168	be incapacitated that is submitted by an interested person and
169	169	satisfies the requirements of Section 1102.003; or
170	170	(2) a written letter or certificate from a physician
171	171	or advanced practice registered nurse who has examined the person
172	172	believed to be incapacitated that satisfies the requirements of
173	173	Section 1101.103, except that the letter must be:
174	174	(A) dated not earlier than the 120th day before
175	175	the date of the appointment of a guardian ad litem or court
176	176	investigator under Section 1102.001; and
177	177	(B) based on an examination the physician or
178	178	advanced practice registered nurse performed not earlier than the
179	179	120th day before that date.
180	180	(d) For purposes of Subsection (c)(2), a letter or
181	181	certificate based on an examination by an advanced practice
182	182	registered nurse must be signed by the supervising physician. The
183	183	opinion of an advanced practice registered nurse that is based on an
184	184	examination of a proposed ward conducted by the advanced practice
185	185	registered nurse under delegation from and supervision by a
186	186	physician and signed by the supervising physician is considered the
187	187	supervising physician's opinion.
188	188	SECTION 5. Section 1202.054(b-1), Estates Code, is amended
189	189	to read as follows:
190	190	(b-1) A written letter or certificate from a physician or
191	191	advanced practice registered nurse as described by Section 1202.152
192	192	is not required before the appointment of the court investigator or
193	193	a guardian ad litem under Subsection (b).
194	194	SECTION 6. Section 1202.152, Estates Code, is amended to
195	195	read as follows:
196	196	Sec. 1202.152. HEALTH CARE PROVIDER'S [PHYSICIAN'S] LETTER
197	197	OR CERTIFICATE REQUIRED. (a) In this section:
198	198	(1) "Advanced practice registered nurse" has the
199	199	meaning assigned by Section 301.152, Occupations Code.
200	200	(2) "Physician" has the meaning assigned by Section
201	201	1101.100.
202	202	(b) An advanced practice registered nurse may act under this
203	203	section only if the advanced practice registered nurse is acting
204	204	under a physician's delegation authority and supervision in
205	205	accordance with Chapter 157, Occupations Code.
206	206	(c) The court may not grant an order completely restoring a
207	207	ward's capacity or modifying a ward's guardianship under an
208	208	application filed under Section 1202.051 unless the applicant
209	209	presents to the court a written letter or certificate from a
210	210	physician or advanced practice registered nurse licensed in this
211	211	state that is dated:
212	212	(1) not earlier than the 120th day before the date the
213	213	application was filed; or
214	214	(2) after the date the application was filed but
215	215	before the date of the hearing.
216	216	(c-1) For purposes of Subsection (c), a letter or
217	217	certificate based on an examination by an advanced practice
218	218	registered nurse must be signed by the supervising physician.
219	219	(d) [(b)] A letter or certificate presented under
220	220	Subsection (c) [(a)] must:
221	221	(1) describe the nature and degree of incapacity,
222	222	including the medical history if reasonably available, or state
223	223	that, in the physician's opinion, the ward has the capacity, or
224	224	sufficient capacity with supports and services, to:
225	225	(A) provide food, clothing, and shelter for
226	226	himself or herself;
227	227	(B) care for the ward's own physical health; and
228	228	(C) manage the ward's financial affairs;
229	229	(2) provide a medical prognosis specifying the
230	230	estimated severity of any incapacity;
231	231	(3) state how or in what manner the ward's ability to
232	232	make or communicate responsible decisions concerning himself or
233	233	herself is affected by the ward's physical or mental health;
234	234	(4) state whether any current medication affects the
235	235	ward's demeanor or the ward's ability to participate fully in a
236	236	court proceeding;
237	237	(5) describe the precise physical and mental
238	238	conditions underlying a diagnosis of senility, if applicable; and
239	239	(6) include any other information required by the
240	240	court.
241	241	(e) For purposes of Subsection (d), the opinion of an
242	242	advanced practice registered nurse that is based on an examination
243	243	of a ward conducted by the advanced practice registered nurse under
244	244	delegation from and supervision by a physician and is signed by the
245	245	supervising physician is considered the supervising physician's
246	246	opinion.
247	247	(f) [(c)] If the court determines it is necessary, the court
248	248	may appoint the necessary physicians or advanced practice
249	249	registered nurses to examine the ward in the same manner and to the
250	250	same extent as a ward is examined by a physician or advanced
251	251	practice registered nurse under Section 1101.103 or 1101.104.
252	252	SECTION 7. The changes in law made by this Act apply only to
253	253	an application for the appointment of a guardian, for the complete
254	254	restoration of a ward's capacity, or for the modification of a
255	255	guardianship that is filed on or after the effective date of this
256	256	Act. An application filed before the effective date of this Act is
257	257	governed by the law in effect on the date the application was filed,
258	258	and the former law is continued in effect for that purpose.
259	259	SECTION 8. This Act takes effect September 1, 2023.
260	260	______________________________ ______________________________
261	261	President of the Senate Speaker of the House
262	262	I certify that H.B. No. 3009 was passed by the House on May
263	263	11, 2023, by the following vote: Yeas 142, Nays 2, 1 present, not
264	264	voting; and that the House concurred in Senate amendments to H.B.
265	265	No. 3009 on May 25, 2023, by the following vote: Yeas 142, Nays 0,
266	266	1 present, not voting.
267	267	______________________________
268	268	Chief Clerk of the House
269	269	I certify that H.B. No. 3009 was passed by the Senate, with
270	270	amendments, on May 23, 2023, by the following vote: Yeas 31, Nays
271	271	0.
272	272	______________________________
273	273	Secretary of the Senate
274	274	APPROVED: __________________
275	275	Date
276	276	__________________
277	277	Governor