By: Klick, et al. (Senate Sponsor - Springer) H.B. No. 3162
(In the Senate - Received from the House May 9, 2023;
May 11, 2023, read first time and referred to Committee on Health &
Human Services; May 17, 2023, reported favorably by the following
vote: Yeas 9, Nays 0; May 17, 2023, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to advance directives, do-not-resuscitate orders, and
health care treatment decisions made by or on behalf of certain
patients, including a review of directives and decisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0445 to read as follows:
Sec. 166.0445. LIMITATION ON LIABILITY FOR PERFORMING
CERTAIN MEDICAL PROCEDURES. (a) A physician or a health care
professional acting under the direction of a physician is not
subject to civil liability for participating in a medical procedure
performed under Section 166.046(d-2).
(b) A physician or a health care professional acting under
the direction of a physician is not subject to criminal liability
for participating in a medical procedure performed under Section
166.046(d-2) unless:
(1) the physician or health care professional in
participating in the medical procedure acted with a specific
malicious intent to cause the death of the patient and that conduct
significantly hastened the patient's death; and
(2) the hastening of the patient's death is not
attributable to the risks associated with the medical procedure.
(c) A physician or a health care professional acting under
the direction of a physician has not engaged in unprofessional
conduct by participating in a medical procedure performed under
Section 166.046(d-2) unless the physician or health care
professional in participating in the medical procedure acted with a
specific malicious intent to harm the patient.
SECTION 2. The heading to Section 166.046, Health and
Safety Code, is amended to read as follows:
Sec. 166.046. PROCEDURE IF NOT EFFECTUATING [A] DIRECTIVE
OR TREATMENT DECISION FOR CERTAIN PATIENTS.
SECTION 3. 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), (b-1), (b-2), (b-3), (d-1), (d-2),
(d-3), and (i) to read as follows:
(a) This section applies only to health care and treatment
for a patient who is determined to be incompetent or is otherwise
mentally or physically incapable of communication.
(a-1) If an attending physician refuses to honor an [a
patient's] advance directive of or [a] health care or treatment
decision made by or on behalf of a patient to whom this section
applies, the physician's refusal shall be reviewed by an ethics or
medical committee. The attending physician may not be a member of
that committee during the review. The patient shall be given
life-sustaining treatment during the review.
(a-2) An ethics or medical committee that reviews a
physician's refusal to honor an advance directive or health care or
treatment decision under Subsection (a-1) shall consider the
patient's well-being in conducting the review but may not make any
judgment on the patient's quality of life. For purposes of this
section, a decision by the committee based on any of the
considerations described by Subdivisions (1) through (5) is not a
judgment on the patient's quality of life. If the review requires
the committee to determine whether life-sustaining treatment
requested in the patient's advance directive or by the person
responsible for the patient's health care decisions is medically
inappropriate, the committee shall consider whether provision of
the life-sustaining treatment:
(1) will prolong the natural process of dying or
hasten the patient's death;
(2) will result in substantial, irremediable, and
objectively measurable physical pain that is not outweighed by the
benefit of providing the treatment;
(3) is medically contraindicated such that the
provision of the treatment seriously exacerbates life-threatening
medical problems not outweighed by the benefit of providing the
treatment;
(4) is consistent with the prevailing standard of
care; or
(5) is contrary to the patient's clearly documented
desires.
(b) The [patient or the] person responsible for the
patient's 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)] shall be informed in writing [of the committee
review process] not less than seven calendar days [48 hours] before
the meeting called to discuss the patient's directive, unless the
[time] period is waived by written mutual agreement, of:
(A) the ethics or medical committee review
process and any other related policies and procedures adopted by
the health care facility, including any policy described by
Subsection (b-1);
(B) the rights described in Subdivisions
(3)(A)-(D);
(C) the date, time, and location of the meeting;
(D) the work contact information of the
facility's personnel who, in the event of a disagreement, will be
responsible for overseeing the reasonable effort to transfer the
patient to another physician or facility willing to comply with the
directive;
(E) the factors the committee is required to
consider under Subsection (a-2); and
(F) the language in Section 166.0465;
(2) [(3)] at the time of being [so] informed under
Subdivision (1), 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
(3) [(4)] is entitled to:
(A) attend and participate in the meeting as
scheduled by the committee;
(B) receive during the meeting a written
statement of the first name, first initial of the last name, and
title of each committee member who will participate in the meeting;
(C) subject to Subsection (b-1):
(i) be accompanied at the meeting by the
patient's spouse, parents, adult children, and not more than four
additional individuals, including legal counsel, a physician, a
health care professional, or a patient advocate, selected by the
person responsible for the patient's health care decisions; and
(ii) have an opportunity during the open
portion of the meeting to either directly or through another
individual attending the meeting:
(a) explain the justification for the
health care or treatment request made by or on behalf of the
patient;
(b) respond to information relating
to the patient that is submitted or presented during the open
portion of the meeting; and
(c) state any concerns of the person
responsible for the patient's health care decisions regarding
compliance with this section or Section 166.0465, including stating
an opinion that one or more of the patient's disabilities are not
relevant to the committee's determination of whether the medical or
surgical intervention is medically appropriate;
(D) receive a written notice [explanation] of:
(i) the decision reached during the review
process accompanied by an explanation of the decision, including,
if applicable, the committee's reasoning for affirming that
requested life-sustaining treatment is medically inappropriate;
(ii) the patient's major medical conditions
as identified by the committee, including any disability of the
patient considered by the committee in reaching the decision,
except the notice is not required to specify whether any medical
condition qualifies as a disability;
(iii) a statement that the committee has
complied with Subsection (a-2) and Section 166.0465; and
(iv) the health care facilities contacted
before the meeting as part of the transfer efforts under Subsection
(d) and, for each listed facility that denied the request to
transfer the patient and provided a reason for the denial, the
provided reason;
(E) [(C)] receive a copy of or electronic access
to 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
(F) [(D)] receive a copy of or electronic access
to all of the patient's reasonably available diagnostic results and
reports related to the medical record provided under Paragraph (E)
[(C)].
(b-1) A health care facility may adopt and implement a
written policy for meetings held under this section that is
reasonable and necessary to:
(1) facilitate information sharing and discussion of
the patient's medical status and treatment requirements, including
provisions related to attendance, confidentiality, and timing
regarding any agenda item; and
(2) preserve the effectiveness of the meeting,
including provisions disclosing that the meeting is not a legal
proceeding and the committee will enter into an executive session
for deliberations.
(b-2) Notwithstanding Subsection (b)(3), the following
individuals may not attend or participate in the executive session
of an ethics or medical committee under this section:
(1) the physicians or health care professionals
providing health care and treatment to the patient; or
(2) the person responsible for the patient's health
care decisions or any person attending the meeting under Subsection
(b)(3)(C)(i).
(b-3) If the health care facility or person responsible for
the patient's health care decisions intends to have legal counsel
attend the meeting of the ethics or medical committee, the facility
or person, as applicable, shall make a good faith effort to provide
written notice of that intention not less than 48 hours before the
meeting begins.
(c) The written notice [explanation] required by Subsection
(b)(3)(D)(i) [Subsection (b)(4)(B)] must be included in the
patient's medical record.
(d) After written notice is provided under Subsection
(b)(1), [If] the patient's 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 to transfer the patient to a physician who is
willing to comply with the directive. The health care [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.
(d-1) If another health care facility denies the patient's
transfer request, the personnel of the health care facility
assisting with the patient's transfer efforts under Subsection (d)
shall make a good faith effort to inquire whether the facility that
denied the patient's transfer request would be more likely to
approve the transfer request if a medical procedure, as that term is
defined in this section, is performed on the patient.
(d-2) If the patient's advance directive or the person
responsible for the patient's health care decisions is requesting
life-sustaining treatment that the attending physician has decided
and the ethics or medical committee has affirmed is medically
inappropriate:
(1) the attending physician or another physician
responsible for the care of the patient shall perform on the patient
each medical procedure that satisfies all of the following
conditions:
(A) in the attending physician's judgment, the
medical procedure is reasonable and necessary to help effect the
patient's transfer under Subsection (d);
(B) an authorized representative for another
health care facility with the ability to comply with the patient's
advance directive or the health care or treatment decision made by
or on behalf of the patient has expressed to the personnel described
by Subsection (b)(1)(D) or the attending physician that the
facility is more likely to accept the patient's transfer to the
other facility if the medical procedure is performed on the
patient;
(C) in the medical judgment of the physician who
would perform the medical procedure, performing the medical
procedure is:
(i) within the prevailing standard of
medical care; and
(ii) not medically contraindicated or
medically inappropriate under the circumstances;
(D) in the medical judgment of the physician who
would perform the medical procedure, the physician has the training
and experience to perform the medical procedure;
(E) the physician who would perform the medical
procedure has medical privileges at the facility where the patient
is receiving care authorizing the physician to perform the medical
procedure at the facility;
(F) the facility where the patient is receiving
care has determined the facility has the resources for the
performance of the medical procedure at the facility; and
(G) the person responsible for the patient's
health care decisions provides consent on behalf of the patient for
the medical procedure; and
(2) the person responsible for the patient's health
care decisions is entitled to receive:
(A) a delay notice:
(i) if, at the time the written decision is
provided as required by Subsection (b)(3)(D)(i), a medical
procedure satisfies all of the conditions described by Subdivision
(1); or
(ii) if:
(a) at the time the written decision
is provided as required by Subsection (b)(3)(D)(i), a medical
procedure satisfies all of the conditions described by Subdivision
(1) except Subdivision (1)(G); and
(b) the person responsible for the
patient's health care decisions provides to the attending physician
or another physician or health care professional providing direct
care to the patient consent on behalf of the patient for the medical
procedure within 24 hours of the request for consent;
(B) a start notice:
(i) if, at the time the written decision is
provided as required by Subsection (b)(3)(D)(i), no medical
procedure satisfies all of the conditions described by Subdivisions
(1)(A) through (F); or
(ii) if:
(a) at the time the written decision
is provided as required by Subsection (b)(3)(D)(i), a medical
procedure satisfies all of the conditions described by Subdivision
(1) except Subdivision (1)(G); and
(b) the person responsible for the
patient's health care decisions does not provide to the attending
physician or another physician or health care professional
providing direct care to the patient consent on behalf of the
patient for the medical procedure within 24 hours of the request for
consent; and
(C) a start notice accompanied by a statement
that one or more of the conditions described by Subdivisions (1)(A)
through (G) are no longer satisfied if, after a delay notice is
provided in accordance with Subdivision (2)(A) and before the
medical procedure on which the delay notice is based is performed on
the patient, one or more of those conditions are no longer
satisfied.
(d-3) After the 25-day period described by Subsection (e)
begins, the period may not be suspended or stopped for any reason.
This subsection does not limit or affect a court's ability to order
an extension of the period in accordance with Subsection (g).
Subsection (d-2) does not require a medical procedure to be
performed on the patient after the expiration of the 25-day period.
(e) If the patient's advance directive [patient] or the
person responsible for the patient's 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
interventions [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 health care 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 25th calendar [10th] day after a start notice is
[both the written decision and the patient's medical record
required under Subsection (b) are] provided in accordance with
Subsection (d-2)(2)(B) or (C) to [the patient or] the person
responsible for the patient's health care decisions or a medical
procedure for which a delay notice was provided in accordance with
Subsection (d-2)(2)(A) is performed, whichever occurs first, [of
the patient] unless ordered to extend the 25-day period [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 providing [the
provision of] the treatment;
(3) result in substantial, irremediable, and
objectively measurable physical pain not outweighed by the benefit
of providing [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 patient's 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.
(i) In this section:
(1) "Delay notice" means a written notice that the
first day of the 25-day period provided under Subsection (e), after
which life-sustaining treatment may be withheld or withdrawn unless
a court has granted an extension under Subsection (g), will be
delayed until the calendar day after a medical procedure required
by Subsection (d-2)(1) is performed unless, before the medical
procedure is performed, the person receives written notice of an
earlier first day because one or more conditions described by that
subdivision are no longer satisfied.
(2) "Medical procedure" means only a tracheostomy or a
percutaneous endoscopic gastrostomy.
(3) "Start notice" means a written notice that the
25-day period provided under Subsection (e), after which
life-sustaining treatment may be withheld or withdrawn unless a
court has granted an extension under Subsection (g), will begin on
the first calendar day after the date the notice is provided.
SECTION 4. 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 DECISION RELATED
TO PATIENT DISABILITY. (a) In this section, "disability" has the
meaning assigned by the Americans with Disabilities Act of 1990 in
42 U.S.C. Section 12102.
(b) During the review process under Section 166.046(b), the
ethics or medical committee may not consider a patient's disability
that existed before the patient's current admission unless the
disability is relevant in determining whether the medical or
surgical intervention is medically appropriate.
SECTION 5. 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 for a patient
who is determined to be incompetent or is otherwise mentally or
physically incapable of communication, the statement required by
Section 166.046(b)(2)(A) [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 the patient has
requested through an advance directive or you have requested on
behalf of the patient that life-sustaining treatment* be provided
to [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 for a
patient who is determined to be incompetent or is otherwise
mentally or physically incapable of communication 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 25 calendar [10] days from the time you were
given a written notice of the first day of the 25-day period or a
medical procedure is performed that delayed the 25-day period and
for which you received notice, whichever occurs first [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 25-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 25 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 25-day [the 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 a health care or treatment
decision requesting the withholding or withdrawal of
life-sustaining treatment for a patient who is determined to be
incompetent or is otherwise mentally or physically incapable of
communication, the statement required by Section 166.046(b)(2)(A)
[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 the patient has
requested through an advance directive or you have requested on
behalf of the patient that [the withdrawal or withholding of]
life-sustaining treatment* be withdrawn or withheld from [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 6. 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) Not later than the 180th day
after the date written notice is provided under Section
166.046(b)(1), a health care facility shall prepare and submit to
the commission a report that contains the following information:
(1) the number of days that elapsed from the patient's
admission to the facility to the date notice was provided under
Section 166.046(b)(1);
(2) whether the ethics or medical committee met to
review the case under Section 166.046 and, if the committee did
meet, the number of days that elapsed from the date notice was
provided under Section 166.046(b)(1) to the date the meeting was
held;
(3) whether the patient was:
(A) transferred to a physician within the same
facility who was willing to comply with the patient's advance
directive or a health care or treatment decision made by or on
behalf of the patient;
(B) transferred to a different health care
facility; or
(C) discharged from the facility to a private
residence or other setting that is not a health care facility;
(4) whether the patient died while receiving
life-sustaining treatment at the facility;
(5) whether life-sustaining treatment was withheld or
withdrawn from the patient at the facility after expiration of the
time period described by Section 166.046(e) and, if so, the
disposition of the patient after the withholding or withdrawal of
life-sustaining treatment at the facility, as selected from the
following categories:
(A) the patient died at the facility;
(B) the patient is currently a patient at the
facility;
(C) the patient was transferred to a different
health care facility; or
(D) the patient was discharged from the facility
to a private residence or other setting that is not a health care
facility;
(6) the age group of the patient selected from the
following categories:
(A) 17 years of age or younger;
(B) 18 years of age or older and younger than 66
years of age; or
(C) 66 years of age or older;
(7) the health insurance coverage status of the
patient selected from the following categories:
(A) private health insurance coverage;
(B) public health plan coverage; or
(C) uninsured;
(8) the patient's sex;
(9) the patient's race;
(10) whether the facility was notified of and able to
reasonably verify any public disclosure of the contact information
for the facility's personnel, physicians or health care
professionals who provide care at the facility, or members of the
ethics or medical committee in connection with the patient's stay
at the facility; and
(11) whether the facility was notified of and able to
reasonably verify any public disclosure by facility personnel of
the contact information for the patient's immediate family members
or the person responsible for the patient's health care decisions
in connection with the patient's stay at the facility.
(b) The commission shall ensure information provided in
each report submitted by a health care facility under Subsection
(a) is kept confidential and not disclosed in any manner, except as
provided by this section.
(c) Not later than April 1 of each year, the commission
shall prepare and publish on the commission's Internet website a
report that contains:
(1) aggregate information compiled from the reports
submitted to the commission under Subsection (a) during the
preceding year on:
(A) the total number of written notices provided
under Section 166.046(b)(1);
(B) the average number of days described by
Subsection (a)(1);
(C) the total number of meetings held by ethics
or medical committees to review cases under Section 166.046;
(D) the average number of days described by
Subsection (a)(2);
(E) the total number of patients described by
Subsections (a)(3)(A), (B), and (C);
(F) the total number of patients described by
Subsection (a)(4);
(G) the total number of patients for whom
life-sustaining treatment was withheld or withdrawn after
expiration of the time period described by Section 166.046(e);
(H) the total number of cases for which the
facility was notified of and able to reasonably verify the public
disclosure of the contact information for the facility's personnel,
physicians or health care professionals who provide care at the
facility, or members of the ethics or medical committee in
connection with the patient's stay at the facility; and
(I) the total number of cases for which the
facility was notified of and able to reasonably verify the public
disclosure by facility personnel of contact information for the
patient's immediate family members or person responsible for the
patient's health care decisions in connection with the patient's
stay at the facility; and
(2) if the total number of reports submitted under
Subsection (a) for the preceding year is 10 or more, aggregate
information compiled from those reports on the total number of
patients categorized by:
(A) sex;
(B) race;
(C) age group, based on the categories described
by Subsection (a)(6);
(D) health insurance coverage status, based on
the categories described by Subsection (a)(7); and
(E) for patients for whom life-sustaining
treatment was withheld or withdrawn at the facility after
expiration of the period described by Section 166.046(e), the total
number of patients described by each of the following:
(i) Subsection (a)(5)(A);
(ii) Subsection (a)(5)(B);
(iii) Subsection (a)(5)(C); and
(iv) Subsection (a)(5)(D).
(d) If the commission receives fewer than 10 reports under
Subsection (a) for inclusion in an annual report required under
Subsection (c), the commission shall include in the next annual
report prepared after the commission receives 10 or more reports
the aggregate information for all years for which the information
was not included in a preceding annual report. The commission shall
include in the next annual report a statement that identifies each
year during which an underlying report was submitted to the
commission under Subsection (a).
(e) The annual report required by Subsection (c) or (d) may
not include any information that could be used alone or in
combination with other reasonably available information to
identify any individual, entity, or facility.
(f) The executive commissioner shall adopt rules to:
(1) establish a standard form for the reporting
requirements of this section; and
(2) protect and aggregate any information the
commission receives under this section.
(g) Information collected as required by this section or
submitted to the commission 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;
(2) may not be used in relation to any disciplinary
action by a licensing or regulatory agency with oversight over a
physician, health care professional acting under the direction of a
physician, or health care facility; and
(3) is not public information or subject to disclosure
under Chapter 552, Government Code, except as permitted by Section
552.008, Government Code.
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 [the
patient's attending physician issues the order,] the order is
dated[,] and [the order]:
(1) is issued by a physician providing direct care to
the patient 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 a patient's:
(i) legal guardian;
(ii) [or] agent under a medical power of
attorney acting in accordance with Subchapter D; or
(iii) proxy as designated and authorized by
a directive executed 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 issued by the patient's attending physician
and:
(A) the order is not contrary to the directions
of a patient who was competent at the time the patient conveyed the
directions; and
(B) [,] in the reasonable medical judgment of the
patient's attending physician:
(i) [(A)] the patient's death is imminent,
within minutes to hours, regardless of the provision of
cardiopulmonary resuscitation; and
(ii) [(B)] the DNR order is medically
appropriate; or
(3) is issued by the patient's attending physician:
(A) for a patient who is incompetent or otherwise
mentally or physically incapable of communication; and
(B) in compliance with a decision:
(i) agreed on by the attending physician
and the person responsible for the patient's health care decisions;
and
(ii) concurred in by another physician who
is not involved in the direct treatment of the patient or who is a
representative of an ethics or medical committee of the health care
facility in which the person is a patient.
(b) The DNR order takes effect at the time the order is
issued, provided the order is placed in the patient's medical
record as soon as practicable and may be issued and entered in a
format acceptable under the policies of the health care facility or
hospital.
(c) Unless notice is provided in accordance with Section
166.204(a), before [Before] placing in a patient's medical record a
DNR order issued under Subsection (a)(2), a [the] physician,
physician assistant, nurse, or 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 Subsections (a), (b), and (c) and adding
Subsection (a-1) to read as follows:
(a) 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,
unless notice has been provided in accordance with Section
166.203(c), 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).
(a-1) For a patient who was incompetent at the time notice
otherwise would have been provided to the patient under Section
166.203(c)(1) and if a physician providing direct care to the
patient later determines that, based on the physician's reasonable
medical judgment, the patient has become competent, a physician,
physician assistant, or nurse providing direct care to the patient
shall disclose the order to the patient, provided that the
physician, physician assistant, or nurse has actual knowledge:
(1) of the order; and
(2) that a physician providing direct care to the
patient has determined that the patient has become competent.
(b) Failure to comply with Subsection (a) or (a-1) or
Section 166.203(c) does not affect the validity of a DNR order
issued under this subchapter.
(c) Any person, including a health care facility or
hospital, [who makes a good faith effort to comply with Subsection
(a) of this section or Section 166.203(c) and contemporaneously
records the person's effort to comply with Subsection (a) of this
section or Section 166.203(c) in the patient's medical record] is
not civilly or criminally liable or subject to disciplinary action
from the appropriate licensing authority for any act or omission
related to providing notice under Subsection (a) or (a-1) of this
section or Section 166.203(c) if the person:
(1) makes a good faith effort to comply with
Subsection (a) or (a-1) or Section 166.203(c) and contemporaneously
records in the patient's medical record the person's effort to
comply with those provisions; or
(2) makes a good faith determination that the
circumstances that would require the person to perform an act under
Subsection (a) or (a-1) or Section 166.203(c) are not met.
SECTION 9. Section 166.205, Health and Safety Code, is
amended by amending Subsections (a), (b), and (c) and adding
Subsection (c-1) 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 [the
patient or, as applicable, the patient's agent under a medical
power of attorney or the patient's legal guardian if the patient is
incompetent]:
(1) an advance directive that serves as the basis of
the DNR order is properly revoked in accordance with this
chapter; [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) the patient 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); or
(3) the DNR order was issued under Section
166.203(a)(1)(D) or (E) or Section 166.203(a)(3), and the person
responsible for the patient's health care decisions expresses to
any person providing direct care to the patient a revocation of
consent to or intent to revoke the DNR order.
(b) A person providing direct care to a patient under the
supervision of a physician shall notify the physician of the
request to revoke a DNR order or of the revocation of an advance
directive under Subsection (a).
(c) A patient's attending physician may at any time revoke a
DNR order issued under:
(1) Section 166.203(a)(1)(A), (B), or (C), provided
that:
(A) the order is for a patient who is incompetent
or otherwise mentally or physically incapable of communication; and
(B) the decision to revoke the order is:
(i) agreed on by the attending physician
and the person responsible for the patient's health care decisions;
and
(ii) concurred in by another physician who
is not involved in the direct treatment of the patient or who is a
representative of an ethics or medical committee of the health care
facility in which the person is a patient;
(2) Section 166.203(a)(1)(E), provided that the
order's issuance was based on a treatment decision made in
accordance with Section 166.039(e);
(3) Section 166.203(a)(2); or
(4) Section 166.203(a)(3).
(c-1) A patient's attending physician shall revoke a DNR
order issued for the patient under Section 166.203(a)(2) if, in the
attending physician's reasonable medical judgment, the condition
described by Section 166.203(a)(2)(B)(i) is no longer satisfied.
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 and Subsection (c), a [A]
physician, physician assistant, nurse, or other person commits an
offense if, with the specific intent to violate this subchapter,
the person intentionally:
(1) conceals, cancels, effectuates, or falsifies
another person's DNR order in violation of this subchapter; 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.
(c) Subsection (a) does not apply to a person whose act or
omission was based on a reasonable belief that the act or omission
was in compliance with the wishes of the patient or the person
responsible for the patient's health care decisions.
SECTION 12. Section 313.004, Health and Safety Code, is
amended by amending Subsections (a) and (c) and adding Subsection
(a-1) 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 is reasonably available after a reasonably diligent
inquiry, an adult surrogate from the following list, in order of
priority, who has decision-making capacity, is reasonably
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:
(1) the patient's spouse;
(2) the patient's [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]; or
(4) the patient's nearest living relative [parents; or
[(5) 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].
(a-1) If the patient does not have a legal guardian, an
agent under a medical power of attorney, or a person listed in
Subsection (a) who is reasonably available after a reasonably
diligent inquiry, another physician who is not involved in the
medical treatment of the patient may concur with the treatment.
(c) Any medical treatment consented to under Subsection (a)
or concurred with under Subsection (a-1) must be based on knowledge
of what the patient would desire, if known.
SECTION 13. 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 the effective date of this Act. A review, consultation,
disagreement, or other action relating to a health care or
treatment decision made before the effective date of this Act 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 14. Section 166.209, Health and Safety Code, as
amended by this Act, applies only to conduct that occurs on or after
the effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurred, and the former law is continued in effect
for that purpose.
SECTION 15. This Act takes effect September 1, 2023.
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