Texas 2023 - 88th Regular

Texas House Bill HB3162 Compare Versions

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1	1	H.B. No. 3162
2	2
3	3
4	4	AN ACT
5	5	relating to advance directives, do-not-resuscitate orders, and
6	6	health care treatment decisions made by or on behalf of certain
7	7	patients, including a review of directives and decisions.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subchapter B, Chapter 166, Health and Safety
10	10	Code, is amended by adding Section 166.0445 to read as follows:
11	11	Sec. 166.0445. LIMITATION ON LIABILITY FOR PERFORMING
12	12	CERTAIN MEDICAL PROCEDURES. (a) A physician or a health care
13	13	professional acting under the direction of a physician is not
14	14	subject to civil liability for participating in a medical procedure
15	15	performed under Section 166.046(d-2).
16	16	(b) A physician or a health care professional acting under
17	17	the direction of a physician is not subject to criminal liability
18	18	for participating in a medical procedure performed under Section
19	19	166.046(d-2) unless:
20	20	(1) the physician or health care professional in
21	21	participating in the medical procedure acted with a specific
22	22	malicious intent to cause the death of the patient and that conduct
23	23	significantly hastened the patient's death; and
24	24	(2) the hastening of the patient's death is not
25	25	attributable to the risks associated with the medical procedure.
26	26	(c) A physician or a health care professional acting under
27	27	the direction of a physician has not engaged in unprofessional
28	28	conduct by participating in a medical procedure performed under
29	29	Section 166.046(d-2) unless the physician or health care
30	30	professional in participating in the medical procedure acted with a
31	31	specific malicious intent to harm the patient.
32	32	SECTION 2. The heading to Section 166.046, Health and
33	33	Safety Code, is amended to read as follows:
34	34	Sec. 166.046. PROCEDURE IF NOT EFFECTUATING [A] DIRECTIVE
35	35	OR TREATMENT DECISION FOR CERTAIN PATIENTS.
36	36	SECTION 3. Section 166.046, Health and Safety Code, is
37	37	amended by amending Subsections (a), (b), (c), (d), (e), and (g) and
38	38	adding Subsections (a-1), (a-2), (b-1), (b-2), (b-3), (d-1), (d-2),
39	39	(d-3), and (i) to read as follows:
40	40	(a) This section applies only to health care and treatment
41	41	for a patient who is determined to be incompetent or is otherwise
42	42	mentally or physically incapable of communication.
43	43	(a-1) If an attending physician refuses to honor an [a
44	44	patient's] advance directive of or [a] health care or treatment
45	45	decision made by or on behalf of a patient to whom this section
46	46	applies, the physician's refusal shall be reviewed by an ethics or
47	47	medical committee. The attending physician may not be a member of
48	48	that committee during the review. The patient shall be given
49	49	life-sustaining treatment during the review.
50	50	(a-2) An ethics or medical committee that reviews a
51	51	physician's refusal to honor an advance directive or health care or
52	52	treatment decision under Subsection (a-1) shall consider the
53	53	patient's well-being in conducting the review but may not make any
54	54	judgment on the patient's quality of life. For purposes of this
55	55	section, a decision by the committee based on any of the
56	56	considerations described by Subdivisions (1) through (5) is not a
57	57	judgment on the patient's quality of life. If the review requires
58	58	the committee to determine whether life-sustaining treatment
59	59	requested in the patient's advance directive or by the person
60	60	responsible for the patient's health care decisions is medically
61	61	inappropriate, the committee shall consider whether provision of
62	62	the life-sustaining treatment:
63	63	(1) will prolong the natural process of dying or
64	64	hasten the patient's death;
65	65	(2) will result in substantial, irremediable, and
66	66	objectively measurable physical pain that is not outweighed by the
67	67	benefit of providing the treatment;
68	68	(3) is medically contraindicated such that the
69	69	provision of the treatment seriously exacerbates life-threatening
70	70	medical problems not outweighed by the benefit of providing the
71	71	treatment;
72	72	(4) is consistent with the prevailing standard of
73	73	care; or
74	74	(5) is contrary to the patient's clearly documented
75	75	desires.
76	76	(b) The [patient or the] person responsible for the
77	77	patient's health care decisions [of the individual who has made the
78	78	decision regarding the directive or treatment decision]:
79	79	(1) [may be given a written description of the ethics
80	80	or medical committee review process and any other policies and
81	81	procedures related to this section adopted by the health care
82	82	facility;
83	83	[(2)] shall be informed in writing [of the committee
84	84	review process] not less than seven calendar days [48 hours] before
85	85	the meeting called to discuss the patient's directive, unless the
86	86	[time] period is waived by written mutual agreement, of:
87	87	(A) the ethics or medical committee review
88	88	process and any other related policies and procedures adopted by
89	89	the health care facility, including any policy described by
90	90	Subsection (b-1);
91	91	(B) the rights described in Subdivisions
92	92	(3)(A)-(D);
93	93	(C) the date, time, and location of the meeting;
94	94	(D) the work contact information of the
95	95	facility's personnel who, in the event of a disagreement, will be
96	96	responsible for overseeing the reasonable effort to transfer the
97	97	patient to another physician or facility willing to comply with the
98	98	directive;
99	99	(E) the factors the committee is required to
100	100	consider under Subsection (a-2); and
101	101	(F) the language in Section 166.0465;
102	102	(2) [(3)] at the time of being [so] informed under
103	103	Subdivision (1), shall be provided:
104	104	(A) a copy of the appropriate statement set forth
105	105	in Section 166.052; and
106	106	(B) a copy of the registry list of health care
107	107	providers and referral groups that have volunteered their readiness
108	108	to consider accepting transfer or to assist in locating a provider
109	109	willing to accept transfer that is posted on the website maintained
110	110	by the department under Section 166.053; and
111	111	(3) [(4)] is entitled to:
112	112	(A) attend and participate in the meeting as
113	113	scheduled by the committee;
114	114	(B) receive during the meeting a written
115	115	statement of the first name, first initial of the last name, and
116	116	title of each committee member who will participate in the meeting;
117	117	(C) subject to Subsection (b-1):
118	118	(i) be accompanied at the meeting by the
119	119	patient's spouse, parents, adult children, and not more than four
120	120	additional individuals, including legal counsel, a physician, a
121	121	health care professional, or a patient advocate, selected by the
122	122	person responsible for the patient's health care decisions; and
123	123	(ii) have an opportunity during the open
124	124	portion of the meeting to either directly or through another
125	125	individual attending the meeting:
126	126	(a) explain the justification for the
127	127	health care or treatment request made by or on behalf of the
128	128	patient;
129	129	(b) respond to information relating
130	130	to the patient that is submitted or presented during the open
131	131	portion of the meeting; and
132	132	(c) state any concerns of the person
133	133	responsible for the patient's health care decisions regarding
134	134	compliance with this section or Section 166.0465, including stating
135	135	an opinion that one or more of the patient's disabilities are not
136	136	relevant to the committee's determination of whether the medical or
137	137	surgical intervention is medically appropriate;
138	138	(D) receive a written notice [explanation] of:
139	139	(i) the decision reached during the review
140	140	process accompanied by an explanation of the decision, including,
141	141	if applicable, the committee's reasoning for affirming that
142	142	requested life-sustaining treatment is medically inappropriate;
143	143	(ii) the patient's major medical conditions
144	144	as identified by the committee, including any disability of the
145	145	patient considered by the committee in reaching the decision,
146	146	except the notice is not required to specify whether any medical
147	147	condition qualifies as a disability;
148	148	(iii) a statement that the committee has
149	149	complied with Subsection (a-2) and Section 166.0465; and
150	150	(iv) the health care facilities contacted
151	151	before the meeting as part of the transfer efforts under Subsection
152	152	(d) and, for each listed facility that denied the request to
153	153	transfer the patient and provided a reason for the denial, the
154	154	provided reason;
155	155	(E) [(C)] receive a copy of or electronic access
156	156	to the portion of the patient's medical record related to the
157	157	treatment received by the patient in the facility for [the lesser
158	158	of:
159	159	[(i)] the period of the patient's current
160	160	admission to the facility; [or
161	161	[(ii) the preceding 30 calendar days;] and
162	162	(F) [(D)] receive a copy of or electronic access
163	163	to all of the patient's reasonably available diagnostic results and
164	164	reports related to the medical record provided under Paragraph (E)
165	165	[(C)].
166	166	(b-1) A health care facility may adopt and implement a
167	167	written policy for meetings held under this section that is
168	168	reasonable and necessary to:
169	169	(1) facilitate information sharing and discussion of
170	170	the patient's medical status and treatment requirements, including
171	171	provisions related to attendance, confidentiality, and timing
172	172	regarding any agenda item; and
173	173	(2) preserve the effectiveness of the meeting,
174	174	including provisions disclosing that the meeting is not a legal
175	175	proceeding and the committee will enter into an executive session
176	176	for deliberations.
177	177	(b-2) Notwithstanding Subsection (b)(3), the following
178	178	individuals may not attend or participate in the executive session
179	179	of an ethics or medical committee under this section:
180	180	(1) the physicians or health care professionals
181	181	providing health care and treatment to the patient; or
182	182	(2) the person responsible for the patient's health
183	183	care decisions or any person attending the meeting under Subsection
184	184	(b)(3)(C)(i).
185	185	(b-3) If the health care facility or person responsible for
186	186	the patient's health care decisions intends to have legal counsel
187	187	attend the meeting of the ethics or medical committee, the facility
188	188	or person, as applicable, shall make a good faith effort to provide
189	189	written notice of that intention not less than 48 hours before the
190	190	meeting begins.
191	191	(c) The written notice [explanation] required by Subsection
192	192	(b)(3)(D)(i) [Subsection (b)(4)(B)] must be included in the
193	193	patient's medical record.
194	194	(d) After written notice is provided under Subsection
195	195	(b)(1), [If] the patient's attending physician [, the patient, or
196	196	the person responsible for the health care decisions of the
197	197	individual does not agree with the decision reached during the
198	198	review process under Subsection (b), the physician] shall make a
199	199	reasonable effort to transfer the patient to a physician who is
200	200	willing to comply with the directive. The health care [If the
201	201	patient is a patient in a health care facility, the] facility's
202	202	personnel shall assist the physician in arranging the patient's
203	203	transfer to:
204	204	(1) another physician;
205	205	(2) an alternative care setting within that facility;
206	206	or
207	207	(3) another facility.
208	208	(d-1) If another health care facility denies the patient's
209	209	transfer request, the personnel of the health care facility
210	210	assisting with the patient's transfer efforts under Subsection (d)
211	211	shall make a good faith effort to inquire whether the facility that
212	212	denied the patient's transfer request would be more likely to
213	213	approve the transfer request if a medical procedure, as that term is
214	214	defined in this section, is performed on the patient.
215	215	(d-2) If the patient's advance directive or the person
216	216	responsible for the patient's health care decisions is requesting
217	217	life-sustaining treatment that the attending physician has decided
218	218	and the ethics or medical committee has affirmed is medically
219	219	inappropriate:
220	220	(1) the attending physician or another physician
221	221	responsible for the care of the patient shall perform on the patient
222	222	each medical procedure that satisfies all of the following
223	223	conditions:
224	224	(A) in the attending physician's judgment, the
225	225	medical procedure is reasonable and necessary to help effect the
226	226	patient's transfer under Subsection (d);
227	227	(B) an authorized representative for another
228	228	health care facility with the ability to comply with the patient's
229	229	advance directive or the health care or treatment decision made by
230	230	or on behalf of the patient has expressed to the personnel described
231	231	by Subsection (b)(1)(D) or the attending physician that the
232	232	facility is more likely to accept the patient's transfer to the
233	233	other facility if the medical procedure is performed on the
234	234	patient;
235	235	(C) in the medical judgment of the physician who
236	236	would perform the medical procedure, performing the medical
237	237	procedure is:
238	238	(i) within the prevailing standard of
239	239	medical care; and
240	240	(ii) not medically contraindicated or
241	241	medically inappropriate under the circumstances;
242	242	(D) in the medical judgment of the physician who
243	243	would perform the medical procedure, the physician has the training
244	244	and experience to perform the medical procedure;
245	245	(E) the physician who would perform the medical
246	246	procedure has medical privileges at the facility where the patient
247	247	is receiving care authorizing the physician to perform the medical
248	248	procedure at the facility;
249	249	(F) the facility where the patient is receiving
250	250	care has determined the facility has the resources for the
251	251	performance of the medical procedure at the facility; and
252	252	(G) the person responsible for the patient's
253	253	health care decisions provides consent on behalf of the patient for
254	254	the medical procedure; and
255	255	(2) the person responsible for the patient's health
256	256	care decisions is entitled to receive:
257	257	(A) a delay notice:
258	258	(i) if, at the time the written decision is
259	259	provided as required by Subsection (b)(3)(D)(i), a medical
260	260	procedure satisfies all of the conditions described by Subdivision
261	261	(1); or
262	262	(ii) if:
263	263	(a) at the time the written decision
264	264	is provided as required by Subsection (b)(3)(D)(i), a medical
265	265	procedure satisfies all of the conditions described by Subdivision
266	266	(1) except Subdivision (1)(G); and
267	267	(b) the person responsible for the
268	268	patient's health care decisions provides to the attending physician
269	269	or another physician or health care professional providing direct
270	270	care to the patient consent on behalf of the patient for the medical
271	271	procedure within 24 hours of the request for consent;
272	272	(B) a start notice:
273	273	(i) if, at the time the written decision is
274	274	provided as required by Subsection (b)(3)(D)(i), no medical
275	275	procedure satisfies all of the conditions described by Subdivisions
276	276	(1)(A) through (F); or
277	277	(ii) if:
278	278	(a) at the time the written decision
279	279	is provided as required by Subsection (b)(3)(D)(i), a medical
280	280	procedure satisfies all of the conditions described by Subdivision
281	281	(1) except Subdivision (1)(G); and
282	282	(b) the person responsible for the
283	283	patient's health care decisions does not provide to the attending
284	284	physician or another physician or health care professional
285	285	providing direct care to the patient consent on behalf of the
286	286	patient for the medical procedure within 24 hours of the request for
287	287	consent; and
288	288	(C) a start notice accompanied by a statement
289	289	that one or more of the conditions described by Subdivisions (1)(A)
290	290	through (G) are no longer satisfied if, after a delay notice is
291	291	provided in accordance with Subdivision (2)(A) and before the
292	292	medical procedure on which the delay notice is based is performed on
293	293	the patient, one or more of those conditions are no longer
294	294	satisfied.
295	295	(d-3) After the 25-day period described by Subsection (e)
296	296	begins, the period may not be suspended or stopped for any reason.
297	297	This subsection does not limit or affect a court's ability to order
298	298	an extension of the period in accordance with Subsection (g).
299	299	Subsection (d-2) does not require a medical procedure to be
300	300	performed on the patient after the expiration of the 25-day period.
301	301	(e) If the patient's advance directive [patient] or the
302	302	person responsible for the patient's health care decisions [of the
303	303	patient] is requesting life-sustaining treatment that the
304	304	attending physician has decided and the ethics or medical committee
305	305	has affirmed is medically inappropriate treatment, the patient
306	306	shall be given available life-sustaining treatment pending
307	307	transfer under Subsection (d). This subsection does not authorize
308	308	withholding or withdrawing pain management medication, medical
309	309	interventions [procedures] necessary to provide comfort, or any
310	310	other health care provided to alleviate a patient's pain. The
311	311	patient is responsible for any costs incurred in transferring the
312	312	patient to another health care facility. The attending physician,
313	313	any other physician responsible for the care of the patient, and the
314	314	health care facility are not obligated to provide life-sustaining
315	315	treatment after the 25th calendar [10th] day after a start notice is
316	316	[both the written decision and the patient's medical record
317	317	required under Subsection (b) are] provided in accordance with
318	318	Subsection (d-2)(2)(B) or (C) to [the patient or] the person
319	319	responsible for the patient's health care decisions or a medical
320	320	procedure for which a delay notice was provided in accordance with
321	321	Subsection (d-2)(2)(A) is performed, whichever occurs first, [of
322	322	the patient] unless ordered to extend the 25-day period [do so]
323	323	under Subsection (g), except that artificially administered
324	324	nutrition and hydration must be provided unless, based on
325	325	reasonable medical judgment, providing artificially administered
326	326	nutrition and hydration would:
327	327	(1) hasten the patient's death;
328	328	(2) be medically contraindicated such that the
329	329	provision of the treatment seriously exacerbates life-threatening
330	330	medical problems not outweighed by the benefit of providing [the
331	331	provision of] the treatment;
332	332	(3) result in substantial, irremediable, and
333	333	objectively measurable physical pain not outweighed by the benefit
334	334	of providing [the provision of] the treatment;
335	335	(4) be medically ineffective in prolonging life; or
336	336	(5) be contrary to the patient's or surrogate's
337	337	clearly documented desire not to receive artificially administered
338	338	nutrition or hydration.
339	339	(g) At the request of [the patient or] the person
340	340	responsible for the patient's health care decisions [of the
341	341	patient], the appropriate district or county court shall extend the
342	342	[time] period provided under Subsection (e) only if the court
343	343	finds, by a preponderance of the evidence, that there is a
344	344	reasonable expectation that a physician or health care facility
345	345	that will honor the patient's directive will be found if the time
346	346	extension is granted.
347	347	(i) In this section:
348	348	(1) "Delay notice" means a written notice that the
349	349	first day of the 25-day period provided under Subsection (e), after
350	350	which life-sustaining treatment may be withheld or withdrawn unless
351	351	a court has granted an extension under Subsection (g), will be
352	352	delayed until the calendar day after a medical procedure required
353	353	by Subsection (d-2)(1) is performed unless, before the medical
354	354	procedure is performed, the person receives written notice of an
355	355	earlier first day because one or more conditions described by that
356	356	subdivision are no longer satisfied.
357	357	(2) "Medical procedure" means only a tracheostomy or a
358	358	percutaneous endoscopic gastrostomy.
359	359	(3) "Start notice" means a written notice that the
360	360	25-day period provided under Subsection (e), after which
361	361	life-sustaining treatment may be withheld or withdrawn unless a
362	362	court has granted an extension under Subsection (g), will begin on
363	363	the first calendar day after the date the notice is provided.
364	364	SECTION 4. Subchapter B, Chapter 166, Health and Safety
365	365	Code, is amended by adding Section 166.0465 to read as follows:
366	366	Sec. 166.0465. ETHICS OR MEDICAL COMMITTEE DECISION RELATED
367	367	TO PATIENT DISABILITY. (a) In this section, "disability" has the
368	368	meaning assigned by the Americans with Disabilities Act of 1990 in
369	369	42 U.S.C. Section 12102.
370	370	(b) During the review process under Section 166.046(b), the
371	371	ethics or medical committee may not consider a patient's disability
372	372	that existed before the patient's current admission unless the
373	373	disability is relevant in determining whether the medical or
374	374	surgical intervention is medically appropriate.
375	375	SECTION 5. Sections 166.052(a) and (b), Health and Safety
376	376	Code, are amended to read as follows:
377	377	(a) In cases in which the attending physician refuses to
378	378	honor an advance directive or health care or treatment decision
379	379	requesting the provision of life-sustaining treatment for a patient
380	380	who is determined to be incompetent or is otherwise mentally or
381	381	physically incapable of communication, the statement required by
382	382	Section 166.046(b)(2)(A) [166.046(b)(3)(A)] shall be in
383	383	substantially the following form:
384	384	When There Is A Disagreement About Medical Treatment: The
385	385	Physician Recommends Against Certain Life-Sustaining Treatment
386	386	That You Wish To Continue
387	387	You have been given this information because the patient has
388	388	requested through an advance directive or you have requested on
389	389	behalf of the patient that life-sustaining treatment* be provided
390	390	to [for yourself as the patient or on behalf of] the patient, [as
391	391	applicable,] which the attending physician believes is not
392	392	medically appropriate. This information is being provided to help
393	393	you understand state law, your rights, and the resources available
394	394	to you in such circumstances. It outlines the process for resolving
395	395	disagreements about treatment among patients, families, and
396	396	physicians. It is based upon Section 166.046 of the Texas Advance
397	397	Directives Act, codified in Chapter 166, Texas Health and Safety
398	398	Code.
399	399	When an attending physician refuses to comply with an advance
400	400	directive or other request for life-sustaining treatment for a
401	401	patient who is determined to be incompetent or is otherwise
402	402	mentally or physically incapable of communication because of the
403	403	physician's judgment that the treatment would be medically
404	404	inappropriate, the case will be reviewed by an ethics or medical
405	405	committee. Life-sustaining treatment will be provided through the
406	406	review.
407	407	You will receive notification of this review at least seven
408	408	calendar days [48 hours] before a meeting of the committee related
409	409	to your case. You are entitled to attend the meeting. With your
410	410	agreement, the meeting may be held sooner than seven calendar days
411	411	[48 hours], if possible.
412	412	You are entitled to receive a written explanation of the
413	413	decision reached during the review process.
414	414	If after this review process both the attending physician and
415	415	the ethics or medical committee conclude that life-sustaining
416	416	treatment is medically inappropriate and yet you continue to
417	417	request such treatment, then the following procedure will occur:
418	418	1. The physician, with the help of the health care facility,
419	419	will assist you in trying to find a physician and facility willing
420	420	to provide the requested treatment.
421	421	2. You are being given a list of health care providers,
422	422	licensed physicians, health care facilities, and referral groups
423	423	that have volunteered their readiness to consider accepting
424	424	transfer, or to assist in locating a provider willing to accept
425	425	transfer, maintained by the Department of State Health Services.
426	426	You may wish to contact providers, facilities, or referral groups
427	427	on the list or others of your choice to get help in arranging a
428	428	transfer.
429	429	3. The patient will continue to be given life-sustaining
430	430	treatment until the patient can be transferred to a willing
431	431	provider for up to 25 calendar [10] days from the time you were
432	432	given a written notice of the first day of the 25-day period or a
433	433	medical procedure is performed that delayed the 25-day period and
434	434	for which you received notice, whichever occurs first [both the
435	435	committee's written decision that life-sustaining treatment is not
436	436	appropriate and the patient's medical record]. The patient will
437	437	continue to be given after the 25-day [10-day] period treatment to
438	438	enhance pain management and reduce suffering, including
439	439	artificially administered nutrition and hydration, unless, based
440	440	on reasonable medical judgment, providing artificially
441	441	administered nutrition and hydration would hasten the patient's
442	442	death, be medically contraindicated such that the provision of the
443	443	treatment seriously exacerbates life-threatening medical problems
444	444	not outweighed by the benefit of the provision of the treatment,
445	445	result in substantial irremediable physical pain not outweighed by
446	446	the benefit of the provision of the treatment, be medically
447	447	ineffective in prolonging life, or be contrary to the patient's or
448	448	surrogate's clearly documented desires.
449	449	4. If a transfer can be arranged, the patient will be
450	450	responsible for the costs of the transfer.
451	451	5. If a provider cannot be found willing to give the
452	452	requested treatment within 25 calendar [10] days, life-sustaining
453	453	treatment may be withdrawn unless a court of law has granted an
454	454	extension.
455	455	6. You may ask the appropriate district or county court to
456	456	extend the 25-day [the 10-day] period if the court finds that there
457	457	is a reasonable expectation that you may find a physician or health
458	458	care facility willing to provide life-sustaining treatment if the
459	459	extension is granted. Patient medical records will be provided to
460	460	the patient or surrogate in accordance with Section 241.154, Texas
461	461	Health and Safety Code.
462	462	*"Life-sustaining treatment" means treatment that, based on
463	463	reasonable medical judgment, sustains the life of a patient and
464	464	without which the patient will die. The term includes both
465	465	life-sustaining medications and artificial life support, such as
466	466	mechanical breathing machines, kidney dialysis treatment, and
467	467	artificially administered nutrition and hydration. The term does
468	468	not include the administration of pain management medication or the
469	469	performance of a medical procedure considered to be necessary to
470	470	provide comfort care, or any other medical care provided to
471	471	alleviate a patient's pain.
472	472	(b) In cases in which the attending physician refuses to
473	473	comply with an advance directive or a health care or treatment
474	474	decision requesting the withholding or withdrawal of
475	475	life-sustaining treatment for a patient who is determined to be
476	476	incompetent or is otherwise mentally or physically incapable of
477	477	communication, the statement required by Section 166.046(b)(2)(A)
478	478	[166.046(b)(3)(A)] shall be in substantially the following form:
479	479	When There Is A Disagreement About Medical Treatment: The
480	480	Physician Recommends Life-Sustaining Treatment That You Wish To
481	481	Stop
482	482	You have been given this information because the patient has
483	483	requested through an advance directive or you have requested on
484	484	behalf of the patient that [the withdrawal or withholding of]
485	485	life-sustaining treatment* be withdrawn or withheld from [for
486	486	yourself as the patient or on behalf of] the patient, [as
487	487	applicable,] and the attending physician disagrees with and refuses
488	488	to comply with that request. The information is being provided to
489	489	help you understand state law, your rights, and the resources
490	490	available to you in such circumstances. It outlines the process for
491	491	resolving disagreements about treatment among patients, families,
492	492	and physicians. It is based upon Section 166.046 of the Texas
493	493	Advance Directives Act, codified in Chapter 166, Texas Health and
494	494	Safety Code.
495	495	When an attending physician refuses to comply with an advance
496	496	directive or other request for withdrawal or withholding of
497	497	life-sustaining treatment for any reason, the case will be reviewed
498	498	by an ethics or medical committee. Life-sustaining treatment will
499	499	be provided through the review.
500	500	You will receive notification of this review at least seven
501	501	calendar days [48 hours] before a meeting of the committee related
502	502	to your case. You are entitled to attend the meeting. With your
503	503	agreement, the meeting may be held sooner than seven calendar days
504	504	[48 hours], if possible.
505	505	You are entitled to receive a written explanation of the
506	506	decision reached during the review process.
507	507	If you or the attending physician do not agree with the
508	508	decision reached during the review process, and the attending
509	509	physician still refuses to comply with your request to withhold or
510	510	withdraw life-sustaining treatment, then the following procedure
511	511	will occur:
512	512	1. The physician, with the help of the health care facility,
513	513	will assist you in trying to find a physician and facility willing
514	514	to withdraw or withhold the life-sustaining treatment.
515	515	2. You are being given a list of health care providers,
516	516	licensed physicians, health care facilities, and referral groups
517	517	that have volunteered their readiness to consider accepting
518	518	transfer, or to assist in locating a provider willing to accept
519	519	transfer, maintained by the Department of State Health Services.
520	520	You may wish to contact providers, facilities, or referral groups
521	521	on the list or others of your choice to get help in arranging a
522	522	transfer.
523	523	*"Life-sustaining treatment" means treatment that, based on
524	524	reasonable medical judgment, sustains the life of a patient and
525	525	without which the patient will die. The term includes both
526	526	life-sustaining medications and artificial life support, such as
527	527	mechanical breathing machines, kidney dialysis treatment, and
528	528	artificially administered nutrition and hydration. The term does
529	529	not include the administration of pain management medication or the
530	530	performance of a medical procedure considered to be necessary to
531	531	provide comfort care, or any other medical care provided to
532	532	alleviate a patient's pain.
533	533	SECTION 6. Subchapter B, Chapter 166, Health and Safety
534	534	Code, is amended by adding Section 166.054 to read as follows:
535	535	Sec. 166.054. REPORTING REQUIREMENTS REGARDING ETHICS OR
536	536	MEDICAL COMMITTEE PROCESSES. (a) Not later than the 180th day
537	537	after the date written notice is provided under Section
538	538	166.046(b)(1), a health care facility shall prepare and submit to
539	539	the commission a report that contains the following information:
540	540	(1) the number of days that elapsed from the patient's
541	541	admission to the facility to the date notice was provided under
542	542	Section 166.046(b)(1);
543	543	(2) whether the ethics or medical committee met to
544	544	review the case under Section 166.046 and, if the committee did
545	545	meet, the number of days that elapsed from the date notice was
546	546	provided under Section 166.046(b)(1) to the date the meeting was
547	547	held;
548	548	(3) whether the patient was:
549	549	(A) transferred to a physician within the same
550	550	facility who was willing to comply with the patient's advance
551	551	directive or a health care or treatment decision made by or on
552	552	behalf of the patient;
553	553	(B) transferred to a different health care
554	554	facility; or
555	555	(C) discharged from the facility to a private
556	556	residence or other setting that is not a health care facility;
557	557	(4) whether the patient died while receiving
558	558	life-sustaining treatment at the facility;
559	559	(5) whether life-sustaining treatment was withheld or
560	560	withdrawn from the patient at the facility after expiration of the
561	561	time period described by Section 166.046(e) and, if so, the
562	562	disposition of the patient after the withholding or withdrawal of
563	563	life-sustaining treatment at the facility, as selected from the
564	564	following categories:
565	565	(A) the patient died at the facility;
566	566	(B) the patient is currently a patient at the
567	567	facility;
568	568	(C) the patient was transferred to a different
569	569	health care facility; or
570	570	(D) the patient was discharged from the facility
571	571	to a private residence or other setting that is not a health care
572	572	facility;
573	573	(6) the age group of the patient selected from the
574	574	following categories:
575	575	(A) 17 years of age or younger;
576	576	(B) 18 years of age or older and younger than 66
577	577	years of age; or
578	578	(C) 66 years of age or older;
579	579	(7) the health insurance coverage status of the
580	580	patient selected from the following categories:
581	581	(A) private health insurance coverage;
582	582	(B) public health plan coverage; or
583	583	(C) uninsured;
584	584	(8) the patient's sex;
585	585	(9) the patient's race;
586	586	(10) whether the facility was notified of and able to
587	587	reasonably verify any public disclosure of the contact information
588	588	for the facility's personnel, physicians or health care
589	589	professionals who provide care at the facility, or members of the
590	590	ethics or medical committee in connection with the patient's stay
591	591	at the facility; and
592	592	(11) whether the facility was notified of and able to
593	593	reasonably verify any public disclosure by facility personnel of
594	594	the contact information for the patient's immediate family members
595	595	or the person responsible for the patient's health care decisions
596	596	in connection with the patient's stay at the facility.
597	597	(b) The commission shall ensure information provided in
598	598	each report submitted by a health care facility under Subsection
599	599	(a) is kept confidential and not disclosed in any manner, except as
600	600	provided by this section.
601	601	(c) Not later than April 1 of each year, the commission
602	602	shall prepare and publish on the commission's Internet website a
603	603	report that contains:
604	604	(1) aggregate information compiled from the reports
605	605	submitted to the commission under Subsection (a) during the
606	606	preceding year on:
607	607	(A) the total number of written notices provided
608	608	under Section 166.046(b)(1);
609	609	(B) the average number of days described by
610	610	Subsection (a)(1);
611	611	(C) the total number of meetings held by ethics
612	612	or medical committees to review cases under Section 166.046;
613	613	(D) the average number of days described by
614	614	Subsection (a)(2);
615	615	(E) the total number of patients described by
616	616	Subsections (a)(3)(A), (B), and (C);
617	617	(F) the total number of patients described by
618	618	Subsection (a)(4);
619	619	(G) the total number of patients for whom
620	620	life-sustaining treatment was withheld or withdrawn after
621	621	expiration of the time period described by Section 166.046(e);
622	622	(H) the total number of cases for which the
623	623	facility was notified of and able to reasonably verify the public
624	624	disclosure of the contact information for the facility's personnel,
625	625	physicians or health care professionals who provide care at the
626	626	facility, or members of the ethics or medical committee in
627	627	connection with the patient's stay at the facility; and
628	628	(I) the total number of cases for which the
629	629	facility was notified of and able to reasonably verify the public
630	630	disclosure by facility personnel of contact information for the
631	631	patient's immediate family members or person responsible for the
632	632	patient's health care decisions in connection with the patient's
633	633	stay at the facility; and
634	634	(2) if the total number of reports submitted under
635	635	Subsection (a) for the preceding year is 10 or more, aggregate
636	636	information compiled from those reports on the total number of
637	637	patients categorized by:
638	638	(A) sex;
639	639	(B) race;
640	640	(C) age group, based on the categories described
641	641	by Subsection (a)(6);
642	642	(D) health insurance coverage status, based on
643	643	the categories described by Subsection (a)(7); and
644	644	(E) for patients for whom life-sustaining
645	645	treatment was withheld or withdrawn at the facility after
646	646	expiration of the period described by Section 166.046(e), the total
647	647	number of patients described by each of the following:
648	648	(i) Subsection (a)(5)(A);
649	649	(ii) Subsection (a)(5)(B);
650	650	(iii) Subsection (a)(5)(C); and
651	651	(iv) Subsection (a)(5)(D).
652	652	(d) If the commission receives fewer than 10 reports under
653	653	Subsection (a) for inclusion in an annual report required under
654	654	Subsection (c), the commission shall include in the next annual
655	655	report prepared after the commission receives 10 or more reports
656	656	the aggregate information for all years for which the information
657	657	was not included in a preceding annual report. The commission shall
658	658	include in the next annual report a statement that identifies each
659	659	year during which an underlying report was submitted to the
660	660	commission under Subsection (a).
661	661	(e) The annual report required by Subsection (c) or (d) may
662	662	not include any information that could be used alone or in
663	663	combination with other reasonably available information to
664	664	identify any individual, entity, or facility.
665	665	(f) The executive commissioner shall adopt rules to:
666	666	(1) establish a standard form for the reporting
667	667	requirements of this section; and
668	668	(2) protect and aggregate any information the
669	669	commission receives under this section.
670	670	(g) Information collected as required by this section or
671	671	submitted to the commission under this section:
672	672	(1) is not admissible in a civil or criminal
673	673	proceeding in which a physician, health care professional acting
674	674	under the direction of a physician, or health care facility is a
675	675	defendant;
676	676	(2) may not be used in relation to any disciplinary
677	677	action by a licensing or regulatory agency with oversight over a
678	678	physician, health care professional acting under the direction of a
679	679	physician, or health care facility; and
680	680	(3) is not public information or subject to disclosure
681	681	under Chapter 552, Government Code, except as permitted by Section
682	682	552.008, Government Code.
683	683	SECTION 7. Sections 166.203(a), (b), and (c), Health and
684	684	Safety Code, are amended to read as follows:
685	685	(a) A DNR order issued for a patient is valid only if [the
686	686	patient's attending physician issues the order,] the order is
687	687	dated[,] and [the order]:
688	688	(1) is issued by a physician providing direct care to
689	689	the patient in compliance with:
690	690	(A) the written and dated directions of a patient
691	691	who was competent at the time the patient wrote the directions;
692	692	(B) the oral directions of a competent patient
693	693	delivered to or observed by two competent adult witnesses, at least
694	694	one of whom must be a person not listed under Section 166.003(2)(E)
695	695	or (F);
696	696	(C) the directions in an advance directive
697	697	enforceable under Section 166.005 or executed in accordance with
698	698	Section 166.032, 166.034, [or] 166.035, 166.082, 166.084, or
699	699	166.085;
700	700	(D) the directions of a patient's:
701	701	(i) legal guardian;
702	702	(ii) [or] agent under a medical power of
703	703	attorney acting in accordance with Subchapter D; or
704	704	(iii) proxy as designated and authorized by
705	705	a directive executed in accordance with Subchapter B to make a
706	706	treatment decision for the patient if the patient becomes
707	707	incompetent or otherwise mentally or physically incapable of
708	708	communication; or
709	709	(E) a treatment decision made in accordance with
710	710	Section 166.039; [or]
711	711	(2) is issued by the patient's attending physician
712	712	and:
713	713	(A) the order is not contrary to the directions
714	714	of a patient who was competent at the time the patient conveyed the
715	715	directions; and
716	716	(B) [,] in the reasonable medical judgment of the
717	717	patient's attending physician:
718	718	(i) [(A)] the patient's death is imminent,
719	719	within minutes to hours, regardless of the provision of
720	720	cardiopulmonary resuscitation; and
721	721	(ii) [(B)] the DNR order is medically
722	722	appropriate; or
723	723	(3) is issued by the patient's attending physician:
724	724	(A) for a patient who is incompetent or otherwise
725	725	mentally or physically incapable of communication; and
726	726	(B) in compliance with a decision:
727	727	(i) agreed on by the attending physician
728	728	and the person responsible for the patient's health care decisions;
729	729	and
730	730	(ii) concurred in by another physician who
731	731	is not involved in the direct treatment of the patient or who is a
732	732	representative of an ethics or medical committee of the health care
733	733	facility in which the person is a patient.
734	734	(b) The DNR order takes effect at the time the order is
735	735	issued, provided the order is placed in the patient's medical
736	736	record as soon as practicable and may be issued and entered in a
737	737	format acceptable under the policies of the health care facility or
738	738	hospital.
739	739	(c) Unless notice is provided in accordance with Section
740	740	166.204(a), before [Before] placing in a patient's medical record a
741	741	DNR order issued under Subsection (a)(2), a [the] physician,
742	742	physician assistant, nurse, or other person acting on behalf of a
743	743	health care facility or hospital shall:
744	744	(1) inform the patient of the order's issuance; or
745	745	(2) if the patient is incompetent, make a reasonably
746	746	diligent effort to contact or cause to be contacted and inform of
747	747	the order's issuance:
748	748	(A) the patient's known agent under a medical
749	749	power of attorney or legal guardian; or
750	750	(B) for a patient who does not have a known agent
751	751	under a medical power of attorney or legal guardian, a person
752	752	described by Section 166.039(b)(1), (2), or (3).
753	753	SECTION 8. Section 166.204, Health and Safety Code, is
754	754	amended by amending Subsections (a), (b), and (c) and adding
755	755	Subsection (a-1) to read as follows:
756	756	(a) If an individual arrives at a health care facility or
757	757	hospital that is treating a patient for whom a DNR order is issued
758	758	under Section 166.203(a)(2) and the individual notifies a
759	759	physician, physician assistant, or nurse providing direct care to
760	760	the patient of the individual's arrival, the physician, physician
761	761	assistant, or nurse who has actual knowledge of the order shall,
762	762	unless notice has been provided in accordance with Section
763	763	166.203(c), disclose the order to the individual, provided the
764	764	individual is:
765	765	(1) the patient's known agent under a medical power of
766	766	attorney or legal guardian; or
767	767	(2) for a patient who does not have a known agent under
768	768	a medical power of attorney or legal guardian, a person described by
769	769	Section 166.039(b)(1), (2), or (3).
770	770	(a-1) For a patient who was incompetent at the time notice
771	771	otherwise would have been provided to the patient under Section
772	772	166.203(c)(1) and if a physician providing direct care to the
773	773	patient later determines that, based on the physician's reasonable
774	774	medical judgment, the patient has become competent, a physician,
775	775	physician assistant, or nurse providing direct care to the patient
776	776	shall disclose the order to the patient, provided that the
777	777	physician, physician assistant, or nurse has actual knowledge:
778	778	(1) of the order; and
779	779	(2) that a physician providing direct care to the
780	780	patient has determined that the patient has become competent.
781	781	(b) Failure to comply with Subsection (a) or (a-1) or
782	782	Section 166.203(c) does not affect the validity of a DNR order
783	783	issued under this subchapter.
784	784	(c) Any person, including a health care facility or
785	785	hospital, [who makes a good faith effort to comply with Subsection
786	786	(a) of this section or Section 166.203(c) and contemporaneously
787	787	records the person's effort to comply with Subsection (a) of this
788	788	section or Section 166.203(c) in the patient's medical record] is
789	789	not civilly or criminally liable or subject to disciplinary action
790	790	from the appropriate licensing authority for any act or omission
791	791	related to providing notice under Subsection (a) or (a-1) of this
792	792	section or Section 166.203(c) if the person:
793	793	(1) makes a good faith effort to comply with
794	794	Subsection (a) or (a-1) or Section 166.203(c) and contemporaneously
795	795	records in the patient's medical record the person's effort to
796	796	comply with those provisions; or
797	797	(2) makes a good faith determination that the
798	798	circumstances that would require the person to perform an act under
799	799	Subsection (a) or (a-1) or Section 166.203(c) are not met.
800	800	SECTION 9. Section 166.205, Health and Safety Code, is
801	801	amended by amending Subsections (a), (b), and (c) and adding
802	802	Subsection (c-1) to read as follows:
803	803	(a) A physician providing direct care to a patient for whom
804	804	a DNR order is issued shall revoke the patient's DNR order if [the
805	805	patient or, as applicable, the patient's agent under a medical
806	806	power of attorney or the patient's legal guardian if the patient is
807	807	incompetent]:
808	808	(1) an advance directive that serves as the basis of
809	809	the DNR order is properly revoked in accordance with this
810	810	chapter; [effectively revokes an advance directive, in accordance
811	811	with Section 166.042, for which a DNR order is issued under Section
812	812	166.203(a); or]
813	813	(2) the patient expresses to any person providing
814	814	direct care to the patient a revocation of consent to or intent to
815	815	revoke a DNR order issued under Section 166.203(a); or
816	816	(3) the DNR order was issued under Section
817	817	166.203(a)(1)(D) or (E) or Section 166.203(a)(3), and the person
818	818	responsible for the patient's health care decisions expresses to
819	819	any person providing direct care to the patient a revocation of
820	820	consent to or intent to revoke the DNR order.
821	821	(b) A person providing direct care to a patient under the
822	822	supervision of a physician shall notify the physician of the
823	823	request to revoke a DNR order or of the revocation of an advance
824	824	directive under Subsection (a).
825	825	(c) A patient's attending physician may at any time revoke a
826	826	DNR order issued under:
827	827	(1) Section 166.203(a)(1)(A), (B), or (C), provided
828	828	that:
829	829	(A) the order is for a patient who is incompetent
830	830	or otherwise mentally or physically incapable of communication; and
831	831	(B) the decision to revoke the order is:
832	832	(i) agreed on by the attending physician
833	833	and the person responsible for the patient's health care decisions;
834	834	and
835	835	(ii) concurred in by another physician who
836	836	is not involved in the direct treatment of the patient or who is a
837	837	representative of an ethics or medical committee of the health care
838	838	facility in which the person is a patient;
839	839	(2) Section 166.203(a)(1)(E), provided that the
840	840	order's issuance was based on a treatment decision made in
841	841	accordance with Section 166.039(e);
842	842	(3) Section 166.203(a)(2); or
843	843	(4) Section 166.203(a)(3).
844	844	(c-1) A patient's attending physician shall revoke a DNR
845	845	order issued for the patient under Section 166.203(a)(2) if, in the
846	846	attending physician's reasonable medical judgment, the condition
847	847	described by Section 166.203(a)(2)(B)(i) is no longer satisfied.
848	848	SECTION 10. Sections 166.206(a) and (b), Health and Safety
849	849	Code, are amended to read as follows:
850	850	(a) If a [an attending] physician, health care facility, or
851	851	hospital does not wish to execute or comply with a DNR order or the
852	852	patient's instructions concerning the provision of cardiopulmonary
853	853	resuscitation, the physician, facility, or hospital shall inform
854	854	the patient, the legal guardian or qualified relatives of the
855	855	patient, or the agent of the patient under a medical power of
856	856	attorney of the benefits and burdens of cardiopulmonary
857	857	resuscitation.
858	858	(b) If, after receiving notice under Subsection (a), the
859	859	patient or another person authorized to act on behalf of the patient
860	860	and the [attending] physician, health care facility, or hospital
861	861	remain in disagreement, the physician, facility, or hospital shall
862	862	make a reasonable effort to transfer the patient to another
863	863	physician, facility, or hospital willing to execute or comply with
864	864	a DNR order or the patient's instructions concerning the provision
865	865	of cardiopulmonary resuscitation.
866	866	SECTION 11. Section 166.209, Health and Safety Code, is
867	867	amended to read as follows:
868	868	Sec. 166.209. ENFORCEMENT. (a) Subject to Sections
869	869	166.205(d), 166.207, and 166.208 and Subsection (c), a [A]
870	870	physician, physician assistant, nurse, or other person commits an
871	871	offense if, with the specific intent to violate this subchapter,
872	872	the person intentionally:
873	873	(1) conceals, cancels, effectuates, or falsifies
874	874	another person's DNR order in violation of this subchapter; or
875	875	(2) [if the person intentionally] conceals or
876	876	withholds personal knowledge of another person's revocation of a
877	877	DNR order in violation of this subchapter.
878	878	(a-1) An offense under Subsection (a) [this subsection] is a
879	879	Class A misdemeanor. This section [subsection] does not preclude
880	880	prosecution for any other applicable offense.
881	881	(b) Subject to Sections 166.205(d), 166.207, and 166.208, a
882	882	[A] physician, health care professional, health care facility,
883	883	hospital, or entity is subject to review and disciplinary action by
884	884	the appropriate licensing authority for intentionally:
885	885	(1) failing to effectuate a DNR order in violation of
886	886	this subchapter; or
887	887	(2) issuing a DNR order in violation of this
888	888	subchapter.
889	889	(c) Subsection (a) does not apply to a person whose act or
890	890	omission was based on a reasonable belief that the act or omission
891	891	was in compliance with the wishes of the patient or the person
892	892	responsible for the patient's health care decisions.
893	893	SECTION 12. Section 313.004, Health and Safety Code, is
894	894	amended by amending Subsections (a) and (c) and adding Subsection
895	895	(a-1) to read as follows:
896	896	(a) If an adult patient of a home and community support
897	897	services agency or in a hospital or nursing home, or an adult inmate
898	898	of a county or municipal jail, is comatose, incapacitated, or
899	899	otherwise mentally or physically incapable of communication and
900	900	does not have a legal guardian or an agent under a medical power of
901	901	attorney who is reasonably available after a reasonably diligent
902	902	inquiry, an adult surrogate from the following list, in order of
903	903	priority, who has decision-making capacity, is reasonably
904	904	available after a reasonably diligent inquiry, and is willing to
905	905	consent to medical treatment on behalf of the patient may consent to
906	906	medical treatment on behalf of the patient:
907	907	(1) the patient's spouse;
908	908	(2) the patient's [an adult child of the patient who
909	909	has the waiver and consent of all other qualified] adult children
910	910	[of the patient to act as the sole decision-maker];
911	911	(3) [a majority of] the patient's parents [reasonably
912	912	available adult children]; or
913	913	(4) the patient's nearest living relative [parents; or
914	914	[(5) the individual clearly identified to act for the
915	915	patient by the patient before the patient became incapacitated, the
916	916	patient's nearest living relative, or a member of the clergy].
917	917	(a-1) If the patient does not have a legal guardian, an
918	918	agent under a medical power of attorney, or a person listed in
919	919	Subsection (a) who is reasonably available after a reasonably
920	920	diligent inquiry, another physician who is not involved in the
921	921	medical treatment of the patient may concur with the treatment.
922	922	(c) Any medical treatment consented to under Subsection (a)
923	923	or concurred with under Subsection (a-1) must be based on knowledge
924	924	of what the patient would desire, if known.
925	925	SECTION 13. Chapter 166, Health and Safety Code, as amended
926	926	by this Act, applies only to a review, consultation, disagreement,
927	927	or other action relating to a health care or treatment decision made
928	928	on or after the effective date of this Act. A review, consultation,
929	929	disagreement, or other action relating to a health care or
930	930	treatment decision made before the effective date of this Act is
931	931	governed by the law in effect immediately before the effective date
932	932	of this Act, and the former law is continued in effect for that
933	933	purpose.
934	934	SECTION 14. Section 166.209, Health and Safety Code, as
935	935	amended by this Act, applies only to conduct that occurs on or after
936	936	the effective date of this Act. Conduct that occurs before the
937	937	effective date of this Act is governed by the law in effect on the
938	938	date the conduct occurred, and the former law is continued in effect
939	939	for that purpose.
940	940	SECTION 15. This Act takes effect September 1, 2023.
941	941	______________________________ ______________________________
942	942	President of the Senate Speaker of the House
943	943	I certify that H.B. No. 3162 was passed by the House on May 8,
944	944	2023, by the following vote: Yeas 136, Nays 1, 1 present, not
945	945	voting.
946	946	______________________________
947	947	Chief Clerk of the House
948	948	I certify that H.B. No. 3162 was passed by the Senate on May
949	949	18, 2023, by the following vote: Yeas 31, Nays 0.
950	950	______________________________
951	951	Secretary of the Senate
952	952	APPROVED: _____________________
953	953	Date
954	954	_____________________
955	955	Governor