HBA-RBT, NMO C.S.H.B. 1270 76(R)BILL ANALYSIS
Office of House Bill AnalysisC.S.H.B. 1270
By: Lewis, Glenn
Public Health
4/19/1999
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Currently, if an adult patient fails to designate someone to make health
care decisions for the patient in the case of incapacity, the law provides
a prioritized list of surrogate decision makers. Problems may occur when
no family member is able or willing to make health care decisions, no other
person is clearly identified prior to incapacitation to act for the
patient, and the last priority, a member of the clergy, is not willing to
make health care decisions.
C.S.H.B. 1270 adds to the prioritized list of health care decision-making
surrogates, before a member of the clergy, an adult who the attending
physician determines has had substantial past contact with the patient
sufficient to warrant decision-making; and, after a member of the clergy, a
surrogate decision-making committee established by a hospital or nursing
home. This bill further authorizes a hospital or nursing home to establish
such a committee, and requires the Texas Board of Human Services to adopt
rules governing the appointment of such a committee.
RULEMAKING AUTHORITY
It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Board of Human Services in
SECTION 1 and 3 (Sections 313.004 and 313.062, Health and Safety Code,
respectively) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 313.004, Health and Safety Code, by amending
Subsections (a) and (d) and adding Subsections (e) and (f), as follows:
(a) Adds to the prioritized list of persons who are authorized to consent
to medical treatment on behalf of an incapacitated adult patient in a
hospital or nursing home, as long as the patient does not have a guardian
of the person or an advance directive made under law that authorizes
another person to make medical treatment decisions on behalf of the adult
patient, before the last priority member of the clergy, another adult who
the attending physician determines has had substantial past contact with
the patient sufficient to warrant standing to such consent; and, after a
member of the clergy, the surrogate decision-making committee established
by the hospital or nursing home under Subchapter B.
(d) Prohibits a surrogate from consenting to experimental research,
abortion, sterilization, or acts relating to the management of client
funds.
(e) Authorizes a surrogate decision-maker or surrogate decision-making
committee to consent to the release of records related to the adult
patient's condition or treatment to facilitate treatment to which the
decision-maker or committee has consented. Authorizes a patient's
authorized decision maker, unless another decision-making mechanism is
provided for by law, to consent to a decision that involves risks to the
patient and other rights not specifically reserved to a surrogate
decision-maker or surrogate decision-making committee.
(f) Requires the Texas Board of Human Services, in consultation with the
Texas Board of Health, to adopt rules that govern the circumstances in
which an adult with substantial past contact with the patient or a member
of the clergy who has established a relationship with the patient may act
as a surrogate decision-maker. Sets forth criteria for the rules.
SECTION 2. Amends Section 313.007(a), Health and Safety Code, to make a
conforming change.
SECTION 3. Amends Chapter 313, Health and Safety Code, by adding
Subchapter B, as follows:
SUBCHAPTER B. SURROGATE DECISION-MAKING COMMITTEES
Sec. 313.051. COMPOSITION OF SURROGATE DECISION-MAKING COMMITTEE. (a)
Requires the Texas Board of Human Services, in consultation with the Texas
Board of Health, to establish and maintain a list of persons who are
qualified to serve on a surrogate decision-making committee established by
a hospital or a nursing home under this subchapter and serve as the
presiding officer of a committee.
(b) Provides that a surrogate decision-making committee must be composed of
at least three but not more than five members. Authorizes the committee to
act only on the consensus of all members.
(c) Sets forth a list of circumstances which disqualify a person from
serving on a decisionmaking committee.
(d) Sets forth a list of qualified persons from which the committee members
that are drawn must be included.
(e) Provides that at least one member of any surrogate decision-making
committee must be a person described by Subsection (d).
(f) Requires a member of a surrogate decision-making committee to
participate in education and training as required by rules adopted under
Section 313.062.
Sec. 313.052. APPOINTMENT OF SURROGATE DECISION-MAKING COMMITTEE;
APPLICATION. Requires a hospital or nursing home to appoint a surrogate
decisionmaking committee if the hospital or nursing home makes certain
determinations. Requires, on appointment of a surrogate decision-making
committee, the hospital or nursing home to file an application for a
medical treatment decision with the committee. Requires the applicant to
submit copies of the application to specified agencies. Prescribes the
form and necessary contents of the application.
Sec. 313.053. NOTICE OF REVIEW OF APPLICATION. Requires the surrogate
decisionmaking committee to schedule a review of the application. Requires
the hospital or nursing home to provide notice of the review to specified
persons. Sets forth the contents of the notice.
Sec. 313.054. PRELIMINARY REVIEW OF APPLICATION. Requires the presiding
officer of the surrogate decision-making committee to review the
application to determine whether additional information may be necessary to
assist the committee in determining the adult patient's best interests
under the circumstances. Authorizes a committee member to consult with a
person who may be able to assist in the determination of the best interest
of the adult patient or to obtain information about the personal opinions,
beliefs, and values of the patient. Requires the committee to consult with
a health care professional licensed or registered in this state, if there
is not one on the committee, to assist the committee in determining the
best interests if the adult patient of the medical treatment decision that
is subject to the review is related to the provision of psychoactive
medication.
Sec. 313.055. REVIEW OF APPLICATION. ( a) Requires a surrogate
decision-making committee to review an application under this subchapter at
the time, place, and date stated in the notice provided under Section
313.053.
(b) Provides that a person who is required to be notified under Section
313.053 is entitled to be present during the proceedings of the surrogate
decision-making committee and to present evidence personally or through a
representative.
(c) Authorizes the surrogate decision-making committee to take testimony or
review evidence from any person who may be able to assist the committee in
determining the best interest of the adult patient.
(d) Provides that formal rules of evidence do not apply to proceedings of a
surrogate decision-making committee.
(e) Requires the surrogate decision-making committee to interview and
observe the adult patient before making a determination of the patient's
best interest, if practicable. Provides that if the patient is not
interviewed, the reason that the patient was not interviewed must be
documented.
(f) Authorizes the presiding officer of the committee to suspend the review
of the application, at any time before the surrogate decision-making
committee makes a determination of the client's best interest, for a period
not to exceed five days, if a person applies for appointment as the
client's guardian of the person in accordance with the Texas Probate Code.
Sec. 313.056. DETERMINATION OF BEST INTEREST; CONSENT TO TREATMENT. (a)
Requires a surrogate decision-making committee to determine, based on clear
and convincing evidence, whether the proposed treatment promotes the adult
patient's best interest.
(b) Requires the surrogate decision-making committee to fully consider the
preference of the patient, as articulated by the patient when making a
decision under Subsection (a).
(c) Requires the surrogate decision-making committee to consent or decline
to consent to the treatment on the adult patient's behalf, according to the
best interest of the patient as determined by the committee.
(d) Requires the surrogate decision-making committee to determine the date
on which the consent becomes effective and the date on which the consent
expires.
(e) Requires the surrogate decision-making committee, if the proceedings of
the committee have been suspended under Section 313.055(f), to also
determine whether, if a person has not been appointed as the guardian of
the adult patient's person before the sixth day after the date of the
suspension, there is a medical necessity, based on clear and convincing
evidence, that the determination to be made under Subsection (a) occur
before the guardianship proceedings are completed.
Sec. 313.057. WRITTEN OPINION; NOTICE OF DETERMINATION. Requires a
surrogate decision-making committee to issue a written opinion that states
each of the committee's determinations and that separately states the
committee's findings of fact. Requires the hospital or nursing home to send
a copy of the committee's opinion to each person required to be notified
under Section 313.053. Requires a hospital to send a copy of the opinion
to the Texas Department of Health and a nursing home to send a copy of the
opinion to the Texas Department of Human Services.
Sec. 313.058. APPEAL OF DETERMINATION. (a) Authorizes a person required
to be notified under Section 313.053 to appeal the decision of a surrogate
decision-making committee by filing a petition not later than the 15th day
after the effective date of the committee's determination in the court
having probate jurisdiction in the county in which the adult patient
resides.
(b) Authorizes the person filing the appeal to request that the proceeding
be transferred to a court with a judge who is licenced to practice law in
this state, if the hearing is to be held in a court in which the judge is
not a licensed attorney.
(c) Provides that a copy of the petition must be served on all parties of
record in the proceedings before the surrogate decision-making committee.
(d) Authorizes the court, after considering the nature of the condition of
the patient, the proposed treatment, and the need for timely medical
treatment, to issue a temporary order restraining the use of the proposed
treatment to facilitate the appeal. Requires the court to expedite the
trial if the order is granted.
Sec. 313.059. EFFECT OF SUBCHAPTER. Provides that this subchapter does
not limit the availability under law of other means of obtaining consent
for medical treatment for an adult patient.
Sec. 313.060. CONFIDENTIAL INFORMATION. Requires a person licensed in
this state to provide health care to provide to a surrogate decision-making
committee appointed under this subchapter any information that the
committee requests that is relevant to an adult patient's need for a
proposed treatment.
Sec. 313.061. CERTAIN LAW INAPPLICABLE. Provides that a decision-making
committee is not subject to Chapters 551, 552, or 2001, Government Code.
Sec. 313.062. RULES AND PROCEDURES. Requires the Texas Board of Human
Services, in consultation with the Texas Board of Health, to adopt rules
governing a surrogate decision-making committee appointed under this
subchapter, including rules governing the procedures used by a committee.
SECTION 4. Redesignates Sections 313.001-313.007, Health and Safety Code,
as Subchapter A, Chapter 313, Health and Safety Code, with a new subchapter
heading as follows:
SUBCHAPTER A. GENERAL PROVISIONS; SURROGATE DECISION-MAKERS
SECTION 5. Effective date: September 1, 1999.
Makes application of this Act prospective to January 1, 2000.
SECTION 6. Requires the Texas Board of Human Services to adopt rules as
required by this Act not later than December 15, 1999.
SECTION 7. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute differs from the original in SECTION 1 by adding a new
provision to Section 313.004(a), Health and Safety Code, to specify that
this section does not apply to a person that has a guardian of the person
or an advance directive made under law that authorizes another person to
make medical treatment decisions on behalf of the adult patient. Makes a
conforming change.
The substitute differs from the original in SECTION 1 by amending Section
313.004, Health and Safety Code, to add experimental research, abortion,
sterilization, and acts relating to the management of client funds, to the
list of acts to which a surrogate decision-making committee may not
consent.
The substitute differs from the original in SECTION 1 by adding Subsection
(e) to Section 313.004, Health and Safety Code, which relates to release of
records.
The substitute differs from the original in SECTION 1 by adding Subsection
(f) to Section 313.004, Health and Safety Code, which relates to rulemaking
by the Texas Board of Human Services.
The substitute differs from the original in SECTION 3 by adding Subchapter
B to Chapter 313, Health and Safety Code, relating to surrogate
decision-making committees, rather than adding proposed Section 313.008,
Health and Safety Code, relating to surrogate decision-making committees,
as in the original. For a complete analysis of new Subchapter B, please
see the Sectionby-Section analysis portion of this document.
The substitute differs from the original in SECTION 4 by redesignating
Sections 313.001-313.007, Health and Safety Code, to Subchapter A, Chapter
313, Health and Safety Code.
The substitute differs from the original by redesignating SECTIONS 4, 5,
and 6, of the original, as SECTIONS 5, 6, and 7, of the substitute.