Bill Text: TX HB3099 | 2021-2022 | 87th Legislature | Introduced

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Bill Title: Relating to advance directives in Texas.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2021-03-19 - Referred to Public Health [HB3099 Detail]

Download: Texas-2021-HB3099-Introduced.html

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By: Coleman H.B. No. 3099

A BILL TO BE ENTITLED
AN ACT
relating to advance directives in Texas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 166, Health and Safety
Code, is amended by adding Section 166.012 to read as follows:
Sec. 166.012. PATIENT AND PROVIDER AUTONOMY. Nothing in
this chapter shall:
(a) permit a surrogate or patient's proxy to supersede the
patient's wishes or desires, if known by the patient's physician,
family member, or surrogate;
(b) subject to the provisions under Sec. 166.046, require a
health care provider to continue treatment or care deemed outside
the appropriate scope of care or in violation of the provider's
ethical duties; or
(c) prevent a health care provider or facility from
undertaking any test or diagnostic necessary to determine the
patient's medical condition or related functions.
SECTION 2. Section 166.046, Health and Safety Code, is
amended by amending Subsections (b), (c), and (e), and adding
Subsections (a-1), (a-2), and (b-1) to read as follows:
(a-1) When an ethics or medical committee review has been
convened under this chapter, the ethics or medical committee shall:
(1) inform the patient or surrogate that the patient
or surrogate may discontinue the process under this section by
providing written notice to the ethics or medical committee;
(2) appoint a patient liaison familiar with
end-of-life issues and hospice care options to assist the patient
or surrogate throughout the process described by this section; and
(3) advise the patient or surrogate that the patient's
attending physician may present medical facts at the meeting.
(a-2) The patient's attending physician may attend and
present facts at an ethics or medical committee review convened
under this chapter but may not participate as a member of the
committee in the case being evaluated.
(b) When a meeting of the ethics or medical committee is
required under this section [The patient or the person responsible
for the health care decisions of the individual who has made the
decision regarding the directive or treatment decision]:
(1) not later than the seventh calendar day before the
scheduled date of the meeting required under this section, unless
this period is waived by mutual agreement, the committee shall
provide to the patient or surrogate:
(A) [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;
(B) notice that the patient or surrogate is
entitled to receive the continued assistance of a patient liaison
to assist the patient or surrogate throughout the process described
in this section;
(C) notice that the patient or surrogate may:
(i) seek a second opinion at the patient's
or surrogate's expense from other medical professionals regarding
the patient's medical status and treatment requirements; and
(ii) communicate the resulting information
to the members of the committee for consideration before the
meeting;
(D) [(2) shall be informed of the committee
review process not less than 48 hours before the meeting called to
discuss the patient's directive, unless the time period is waived
by mutual agreement;
(3) at the time of being so informed, shall be provided:
(A)] a copy of the appropriate statement set forth in
Section 166.052; and
(E) [(B)] a copy of the registry list of health
care providers, health care facilities, and referral groups that,
in compliance with any state laws prohibiting barratry, have
volunteered their readiness to consider accepting transfer or to
assist in locating a provider willing to accept transfer that is
posted on the website maintained by the department under Section
166.053[; and].
(b-1) The patient or surrogate
[(4)] is entitled to:
(1) [(A)] an invitation to attend and participate in,
should they elect to do so, the meeting of the ethics or medical
committee, excluding the committee's deliberations;
(2) be accompanied at the meeting by up to five
persons, or more persons at the committee's discretion, for
support, subject to the facility's reasonable written attendance
policy as necessary to:
(A) facilitate information sharing and
discussion of the patient's medical status and treatment
requirements; and
(B) preserve the order and decorum of the
meeting;
(3) [(B)] receive a written explanation of the
decision reached during the review process;
(4) [(C)] receive a copy of the portion of the
patient's medical record related to the treatment received by the
patient in the facility for the lesser of:
(A) [(i)] the period of the patient's current
admission to the facility; or
(B) [(ii)] the preceding 30 calendar days; and
(5) [(D)] receive a copy of all of the patient's
reasonably available diagnostic results and reports related to the
medical record provided under [Paragraph] Subdivision (4).
(c) The written explanation required by Subsection (b-1)(3)
[(b)(4)(B)] must be included in the patient's medical record.
(e) If the patient or the person responsible for the health
care decisions of the patient is requesting life-sustaining
treatment that the attending physician has decided and the ethics
or medical committee has affirmed is medically inappropriate
treatment, the patient shall be given available life-sustaining
treatment pending transfer under Subsection (d). This subsection
does not authorize withholding or withdrawing pain management
medication, medical procedures necessary to provide comfort, or any
other health care provided to alleviate a patient's pain. The
patient is responsible for any costs incurred in transferring the
patient to another facility. The attending physician, any other
physician responsible for the care of the patient, and the health
care facility are not obligated to provide life-sustaining
treatment after the 14[0]th calendar day after both the written
decision and the patient's medical record required under Subsection
(b) are provided to the patient or the person responsible for the
health care decisions of the patient unless ordered to do so under
Subsection (g), except that artificially administered nutrition
and hydration must be provided unless, based on reasonable medical
judgment, providing artificially administered nutrition and
hydration would:
(1) hasten the patient's death;
(2) be medically contraindicated such that the
provision of the treatment seriously exacerbates life-threatening
medical problems not outweighed by the benefit of the provision of
the treatment;
(3) result in substantial irremediable physical pain
not outweighed by the benefit of the provision of the treatment;
(4) be medically ineffective in prolonging life; or
(5) be contrary to the patient's or surrogate's
clearly documented desire not to receive artificially administered
nutrition or hydration.
SECTION 3. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.0465 to read as follows:
Sec. 166.0465. ETHICS OR MEDICAL COMMITTEE POLICIES;
CONFLICTS OF INTEREST AND DISCRIMINATION. Each health care facility
that provides review by an ethics or medical committee under
Section 166.046 shall adopt and implement polices to:
(1) prevent financial and health care professional
conflicts of interest that may arise during a review under that
section;
(2) permit participation on, and interaction with, the
committee via secure telephonic and teleconference means; and
(3) prohibit consideration of a patient's permanent
physical or mental disability during a review under that section
unless the disability is relevant in determining whether a medical
or surgical intervention is medically appropriate.
SECTION 4. Sections 166.052 (a) and (b), Health and Safety
Code, are amended to read as follows:
(a) In cases in which the attending physician refuses to
honor an advance directive or health care or treatment decision
requesting the provision of life-sustaining treatment, the
statement required by Section 166.046(b)(3)(A) shall be in
substantially the following form:
When There Is A Disagreement About Medical Treatment: The
Physician Recommends Against Certain Life-Sustaining Treatment
That You Wish To Continue
You have been given this information because you have
requested life-sustaining treatment* for yourself as the patient or
on behalf of the patient, as applicable, which the attending
physician believes is not medically appropriate. This information
is being provided to help you understand state law, your rights, and
the resources available to you in such circumstances. It outlines
the process for resolving disagreements about treatment among
patients, families, and physicians. It is based upon Section
166.046 of the Texas Advance Directives Act, codified in Chapter
166, Texas Health and Safety Code.
When an attending physician refuses to comply with an advance
directive or other request for life-sustaining treatment because of
the physician's judgment that the treatment would be medically
inappropriate, the case will be reviewed by an ethics or medical
committee. Life-sustaining treatment will be provided through the
review.
You will receive notification of this review at least 7
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 7 calendar days [48
hours], if possible.
You are entitled to receive a written explanation of the
decision reached during the review process.
If after this review process both the attending physician and
the ethics or medical committee conclude that life-sustaining
treatment is medically inappropriate and yet you continue to
request such treatment, then the following procedure will occur:
1. The physician, with the help of the health care facility,
will assist you in trying to find a physician and facility willing
to provide the requested treatment.
2. You are being given a list of health care providers,
licensed physicians, health care facilities, and referral groups
that have volunteered their readiness to consider accepting
transfer, or to assist in locating a provider willing to accept
transfer, maintained by the Department of State Health Services.
You may wish to contact providers, facilities, or referral groups
on the list or others of your choice to get help in arranging a
transfer.
3. The patient will continue to be given life-sustaining
treatment until the patient can be transferred to a willing
provider for up to 14[0] calendar days from the time you were given
both the committee's written decision that life-sustaining
treatment is not appropriate and the patient's medical record. The
patient will continue to be given after the 14[0]-calendar day
period treatment to enhance pain management and reduce suffering,
including artificially administered nutrition and hydration,
unless, based on reasonable medical judgment, providing
artificially administered nutrition and hydration would hasten the
patient's death, be medically contraindicated such that the
provision of the treatment seriously exacerbates life-threatening
medical problems not outweighed by the benefit of the provision of
the treatment, result in substantial irremediable physical pain not
outweighed by the benefit of the provision of the treatment, be
medically ineffective in prolonging life, or be contrary to the
patient's or surrogate's clearly documented desires.
4. If a transfer can be arranged, the patient will be
responsible for the costs of the transfer.
5. If a provider cannot be found willing to give the
requested treatment within 14[0] calendar days, life-sustaining
treatment may be withdrawn unless a court of law has granted an
extension.
6. You may ask the appropriate district or county court to
extend the 14[0]-calendar day period if the court finds that there
is a reasonable expectation that you may find a physician or health
care facility willing to provide life-sustaining treatment if the
extension is granted. Patient medical records will be provided to
the patient or surrogate in accordance with Section 241.154, Texas
Health and Safety Code.
*"Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and
without which the patient will die. The term includes both
life-sustaining medications and artificial life support, such as
mechanical breathing machines, kidney dialysis treatment, and
artificially administered nutrition and hydration. The term does
not include the administration of pain management medication or the
performance of a medical procedure considered to be necessary to
provide comfort care, or any other medical care provided to
alleviate a patient's pain.
(b) In cases in which the attending physician refuses to
comply with an advance directive or treatment decision requesting
the withholding or withdrawal of life-sustaining treatment, the
statement required by Section 166.046(b)(3)(A) shall be in
substantially the following form:
When There Is A Disagreement About Medical Treatment: The
Physician Recommends Life-Sustaining Treatment That You Wish To
Stop
You have been given this information because you have
requested the withdrawal or withholding of life-sustaining
treatment* for yourself as the patient or on behalf of the patient,
as applicable, and the attending physician disagrees with and
refuses to comply with that request. The information is being
provided to help you understand state law, your rights, and the
resources available to you in such circumstances. It outlines the
process for resolving disagreements about treatment among
patients, families, and physicians. It is based upon Section
166.046 of the Texas Advance Directives Act, codified in Chapter
166, Texas Health and Safety Code.
When an attending physician refuses to comply with an advance
directive or other request for withdrawal or withholding of
life-sustaining treatment for any reason, the case will be reviewed
by an ethics or medical committee. Life-sustaining treatment will
be provided through the review.
You will receive notification of this review at least 7
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 7 calendar days [48
hours], if possible.
You are entitled to receive a written explanation of the
decision reached during the review process.
If you or the attending physician do not agree with the
decision reached during the review process, and the attending
physician still refuses to comply with your request to withhold or
withdraw life-sustaining treatment, then the following procedure
will occur:
1. The physician, with the help of the health care facility,
will assist you in trying to find a physician and facility willing
to withdraw or withhold the life-sustaining treatment.
2. You are being given a list of health care providers,
licensed physicians, health care facilities, and referral groups
that have volunteered their readiness to consider accepting
transfer, or to assist in locating a provider willing to accept
transfer, maintained by the Department of State Health Services.
You may wish to contact providers, facilities, or referral groups
on the list or others of your choice to get help in arranging a
transfer.
*"Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and
without which the patient will die. The term includes both
life-sustaining medications and artificial life support, such as
mechanical breathing machines, kidney dialysis treatment, and
artificially administered nutrition and hydration. The term does
not include the administration of pain management medication or the
performance of a medical procedure considered to be necessary to
provide comfort care, or any other medical care provided to
alleviate a patient's pain.
SECTION 5. Subchapter B, Chapter 166, Health and Safety
Code, is amended by adding Section 166.054 to read as follows:
Sec. 166.054. REPORTING REQUIREMENTS REGARDING ETHICS OR
MEDICAL COMMITTEE PROCESSES. (a) On submission of a health care
facility's application to renew its license, a facility in which
one or more meetings of an ethics or medical committee are held
under this chapter shall file a report with the department that
contains aggregate information regarding the number of cases
initiated by an ethics or medical committee under Section 166.046
and the disposition of those cases by the facility.
(b) Aggregate data submitted to the department under this
section may include only the following:
(1) the total number of patients for whom a review by
the ethics or medical committee was initiated under Section
166.046(b);
(2) the number of patients under Subdivision (1) who
were transferred to:
(A) another physician within the same facility;
or
(B) a different facility;
(3) the number of patients under Subdivision (1) who
were discharged to home;
(4) the number of patients under Subdivision (1) for
whom treatment was withheld or withdrawn pursuant to surrogate
consent:
(A) before the decision was rendered following a
review under Section 166.046(b);
(B) after the decision was rendered following a
review under Section 166.046(b); or
(C) during or after the 14-calendar day period
described by Section 166.046(e);
(5) the average length of stay before a review meeting
is held under Section 166.046(b); and
(6) the number of patients under Subdivision (1) who
died while still receiving life-sustaining treatment:
(A) before the review meeting under Section
166.046(b);
(B) during the 14-calendar day period described
by Section 166.046(e); or
(C) during any extension of the 14-caledndar day
period described by Section 166.046(e).
(c) The report required by this section may not contain any
data specific to an individual patient or physician.
(d) The department shall adopt rules to:
(1) establish a standard form for the reporting
requirements of this section; and
(2) post on the department's Internet website the data
submitted under Subsection (b) in the format provided by rule.
(e) Data collected as required by, or submitted to the
department under, this section:
(1) is not admissible in a civil or criminal
proceeding in which a physician, health care professional acting
under the direction of a physician, or health care facility is a
defendant; and
(2) may not be used in relation to any disciplinary
action by a licensing board or other body with professional or
administrative oversight of a physician, health care professional
acting under the direction of a physician, or health care facility.
SECTION 6. Section 166.202(a), Health and Safety Code, is
amended to read as follows:
(a) This subchapter applies to a DNR order issued for a
patient who has been admitted to [in] a health care facility or
hospital.
SECTION 7. Sections 166.203(a), (b), and (c), Health and
Safety Code, is amended to read as follows:
(a) A DNR order issued for a patient is valid only if a
physician providing direct care to the patient [patient's attending
physician] issues the order, the order is dated, and the order:
(1) is issued in compliance with:
(A) the written and dated directions of a patient
who was competent at the time the patient wrote the directions;
(B) the oral directions of a competent patient
delivered to or observed by two competent adult witnesses, at least
one of whom must be a person not listed under Section 166.003(2)(E)
or (F);
(C) the directions in an advance directive
enforceable under Section 166.005 or executed in accordance with
Section 166.032, 166.034, [or] 166.035, 166.082, 166.084, or
166.085;
(D) the directions of a patient's legal guardian
[or], a patient's agent under a medical power of attorney acting in
accordance with Subchapter D, or a patient's proxy as designated
and authorized by a directive executed or issued in accordance with
Subchapter B to make a treatment decision for the patient in the
event the patient becomes incompetent or otherwise mentally or
physically incapable of communication; or
(E) a treatment decision made in accordance with
Section 166.039; or
(2) is not contrary to the directions of a patient who
was competent at the time the patient conveyed the directions and,
in the reasonable medical judgment of the physician issuing the
order [the patient's attending physician]:
(A) the patient's death is imminent, regardless
of the provision of cardiopulmonary resuscitation; and
(B) the DNR order is medically appropriate.
(b) The DNR order:
(1) 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
(2) may be issued and entered in any format acceptable
under the policies of the hospital or health care facility.
(c) Unless notice is provided in accordance with Section
166.204(a-1), before [Before] placing in a patient's medical record
a DNR order issued under Subsection (a)(2), a [the] physician,
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 Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) If a physician issues a DNR order under Section
166.203(a)(2), notice of the order shall be provided to the
appropriate persons in accordance with either Section 166.203(c) or
Subsection (a-1).
(a-1) Unless notice is provided in accordance with Section
166.203(c), if [If] an individual arrives at a health care facility
or hospital that is treating a patient for whom a DNR order is
issued under Section 166.203(a)(2) and the individual notifies a
physician, physician assistant, or nurse providing direct care to
the patient of the individual's arrival, the physician, physician
assistant, or nurse who has actual knowledge of the order shall
disclose the order to the individual, provided the individual is:
(1) the patient's known agent under a medical power of
attorney or legal guardian; or
(2) for a patient who does not have a known agent under
a medical power of attorney or legal guardian, a person described by
Section 166.039(b)(1), (2), or (3).
SECTION 9. Sections 166.205(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) A physician providing direct care to a patient for whom
a DNR order is issued shall revoke the patient's DNR order if:
(1) the advance directive on which the DNR order is
based is properly revoked in accordance with the applicable
provisions of this chapter; or
(2) the patient or the individual at whose direction
the DNR order was issued [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) effectively revokes an advance directive, in
accordance with Section 166.042, for which a DNR order is issued
under Section 166.203(a); or
[(2)] expresses to any person providing direct care to
the patient a revocation of consent to or intent to revoke a DNR
order issued under Section 166.203(a).
(b) A person providing direct care to a patient under the
supervision of a physician shall notify the physician of revocation
of the advance directive or the request to revoke a DNR order under
Subsection (a).
(c) A physician who issued [patient's attending physician
may at any time revoke] a DNR order [issued] under Section
166.203(a)(2) , or any other attending physician providing direct
care to the patient in accordance with applicable hospital bylaws,
may at any time revoke the DNR order.
SECTION 10. Sections 166.206(a) and (b), Health and Safety
Code, are amended to read as follows:
(a) If a [an attending] physician, health care facility, or
hospital does not wish to execute or comply with a DNR order or the
patient's instructions concerning the provision of cardiopulmonary
resuscitation, the physician, facility, or hospital shall inform
the patient, the legal guardian or qualified relatives of the
patient, or the agent of the patient under a medical power of
attorney of the benefits and burdens of cardiopulmonary
resuscitation.
(b) If, after receiving notice under Subsection (a), the
patient or another person authorized to act on behalf of the patient
and the [attending] physician, health care facility, or hospital
remain in disagreement, the physician, facility, or hospital shall
make a reasonable effort to transfer the patient to another
physician, facility, or hospital willing to execute or comply with
a DNR order or the patient's instructions concerning the provision
of cardiopulmonary resuscitation.
SECTION 11. Section 166.209, Health and Safety Code, is
amended to read as follows:
Sec. 166.209. ENFORCEMENT. (a) Subject to Sections
166.205(d), 166.207, and 166.208, a [A] physician, physician
assistant, nurse, or other person commits an offense if, with the
specific intent to violate the requirements of this subchapter, the
person intentionally:
(1) conceals, cancels, effectuates, or falsifies
another person's DNR order; or
(2) [if the person intentionally] conceals or
withholds personal knowledge of another person's revocation of a
DNR order [in violation of this subchapter].
(a-1) An offense under Subsection (a) [this subsection] is a
Class A misdemeanor. This subsection does not preclude prosecution
for any other applicable offense.
(b) Subject to Sections 166.205(d), 166.207, and 166.208, a
[A] physician, health care professional, health care facility,
hospital, or entity is subject to review and disciplinary action by
the appropriate licensing authority for intentionally:
(1) failing to effectuate a DNR order in violation of
this subchapter; or
(2) issuing a DNR order in violation of this
subchapter.
SECTION 12. Section 313.004(a), Health and Safety Code, is
amended to read as follows:
Sec. 313.004. CONSENT FOR MEDICAL TREATMENT. (a) If an
adult patient of a home and community support services agency or in
a hospital or nursing home, or an adult inmate of a county or
municipal jail, is comatose, incapacitated, or otherwise mentally
or physically incapable of communication, and does not have a legal
guardian or an agent under a medical power of attorney who can
concur with the patient's attending physician, an adult surrogate
from the following list, in order of priority, who has
decision-making capacity, is available after a reasonably diligent
inquiry, and is willing to consent to medical treatment on behalf of
the patient, may consent to medical treatment on behalf of the
patient in concurrence with the patient's attending physician:
(1) the patient's spouse;
(2) the patient's reasonably available adult children
an adult child of the patient who has the waiver and consent of all
other qualified adult children of the patient to act as the sole
decision-maker;
(3) a majority of the patient's parentsreasonably
available adult children;
(4) the patient's nearest living relativeparents; or
(5) if the patient does not have a legal guardian or an
agent under a medical power of attorney, and a person listed in this
Subsection is not available, a treatment decision made under this
Subsection must be concurred in by the patient's attending
physician and another licensed physician who is not involved in the
direct treatment of the patient the individual clearly identified
to act for the patient by the patient before the patient became
incapacitated, the patient's nearest living relative, or a member
of the clergy.
SECTION 13. This Act takes effect September 1, 2022.