HBA-MPM S.B. 1260 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1260 By: Moncrief Public Health 5/2/1999 Engrossed BACKGROUND AND PURPOSE Currently, a person may execute an out-of-hospital do not resuscitate (DNR) order, or advance directive. The regulations governing the execution of a DNR order are spread across Chapters 672 and 674, Health and Safety Code, and Chapter 135, Civil Practice and Remedies Code. Although these three chapters use the same terminology and have repetitive provisions, they maintain inconsistences that confuse individuals who want to develop advance directives and confuse providers who must carry out the directives. Consolidating the chapters would reduce the confusion while setting forth uniform provisions governing the execution of an advance directive. S.B. 1260 amends law regarding an advance directive for medical treatment and provides for administrative penalties. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS ARTICLE I. ADVANCE DIRECTIVES SECTION 1.01. Amends Subtitle H, Title 2, Health and Safety Code, by adding a chapter heading for Chapter 166, as follows: CHAPTER 166. ADVANCE DIRECTIVES SECTION 1.02. Amends Subtitle H, Title 2, Health and Safety Code, by adding Subchapter A, Chapter 166, as follows: SUBCHAPTER A. GENERAL PROVISIONS Sec. 166.001. SHORT TITLE. Cites this chapter as the Advance Directives Act. Sec. 166.002. DEFINITIONS. Defines for the purpose of this chapter the following terms: "advance directive," "artificial nutrition and hydration," "attending physician," "competent," "declarant," "ethics or medical committee," "incompetent," "irreversible condition," "lifesustaining treatment," "medical power of attorney," "physician," "terminal condition," and "witness." Sec. 166.003. WITNESSES. Provides that in any circumstances in which this chapter requires the execution of an advance directive or the issuance of a nonwritten advance directive to be witnessed, each witness must be a competent adult and at least one of the witnesses must be a person who falls within certain categories with respect to the person's relationship to the declarant. Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE. (a) Sets for the definition of "health care provider" (provider) for purposes of this section. (b) Requires a provider to maintain written policies regarding the implementation of advance directives. Provides that the policies must include a clear and precise statement of any procedure the provider is unwilling or unable to withhold in accordance with an advance directive. (c) Requires the provider to provide written notice to an individual of the provider's written policies, except as provided by Subsection (g). Provides that the notice must be provided before certain deadlines. (d) Requires the provider to provide the required written notice, if at the time notice is to be provided under Subsection (c), the individual is incompetent or otherwise incapacitated and unable to receive notice as required by this section, to certain individuals. Sets forth the list of individuals in the order of preference. (e) Provides that if Subsection (d) applies and except as provided by Subsection (f), if a provider is unable, after diligent search, to locate an individual listed by Subsection (d), the provider is not required to provide the notice. (f) Requires the provider to provide the written notice at the time an individual becomes able to receive it, if the individual who was incompetent or otherwise incapacitated and unable to receive the notice at the time it was to be provided under Subsection (c) later becomes able to receive the notice. (g) Makes this section inapplicable to outpatient hospital services, including emergency services. Sec. 166.005. ENFORCEABILITY OF ADVANCE DIRECTIVES EXECUTED IN ANOTHER JURISDICTION. Requires an advance directive or similar instrument validly executed in another state or jurisdiction to be given the same effect as an advance directive validly executed under the laws of this state. Provides that this section does not authorize the administration, withholding, or withdrawal of health care otherwise prohibited by the laws of this state. Sec. 166.006. EFFECT OF ADVANCE DIRECTIVE ON INSURANCE POLICY AND PREMIUMS. (a) Provides that the fact that a person has executed or issued an advance directive does not restrict, inhibit, or impair in any manner the sale, procurement, or issuance of a life insurance policy to that person or modify the terms of an existing life insurance policy. (b) Provides that the fact that life-sustaining treatment is withheld or withdrawn from an insured qualified patient under this chapter does not legally impair or invalidate that person's life insurance policy, notwithstanding the terms of any life insurance policy, and prohibits this fact from being a factor for the purpose of determining, under the life insurance policy, whether benefits are payable or the cause of death. (c) Prohibits the fact that a person has executed or issued or failed to execute or issue an advance directive from being considered in any way in establishing insurance premiums. Sec. 166.007. EXECUTION OF ADVANCE DIRECTIVE MAY NOT BE REQUIRED. Prohibits a physician, health facility, provider, insurer, or health care service plan from requiring a person to execute or issue an advance directive as a condition for obtaining insurance for or receiving health care services. Sec. 166.008. CONFLICT BETWEEN ADVANCE DIRECTIVES. Provides that to the extent that a treatment decision or advance directive validly executed or issued under this chapter conflicts with another treatment decision or advance directive executed or issued, the treatment decision made or instrument executed later in time controls. Sec. 166.009. CERTAIN LIFE-SUSTAINING TREATMENT NOT REQUIRED. Prohibits this chapter from being construed to require the provision of life-sustaining treatment that cannot be provided to a patient without denying the same treatment to another patient. SECTION 1.03. Transfers Chapter 672, Health and Safety Code, to Subtitle H, Title 2, Health and Safety Code and redesignates it as Subchapter B, Chapter 166, Health and Safety Code, as follows: SUBCHAPTER B. DIRECTIVE TO PHYSICIANS. Deletes old title: "CHAPTER 672. NATURAL DEATH ACT" Deletes existing title and text of Section 672.001, referring to this chapter as the Natural Death Act. Sec. 166.031. DEFINITIONS. Redesignated from Sec. 672.002, Health and Safety Code. Redefines "directive" as an instruction made under Sections 166.032, 166.034, or 166.035, Health and Safety Code, rather than Sections 672.003, 672.005, or 672.006, Health and Safety Code, to administer, in addition to withhold, or withdraw life-sustaining treatment, rather than procedures, in the event of a terminal or irreversible condition. Redefines "qualified patient" as a patient with a terminal or irreversible condition diagnosed and certified in writing by the attending physician. Deletes the provision that one other physician who has personally examined the patient must diagnose and certify the patient's condition. Makes conforming and nonsubstantive changes. Sec. 166.032. WRITTEN DIRECTIVE BY COMPETENT ADULT; NOTICE TO PHYSICIAN. Redesignated from Section 672.003, Health and Safety Code. Provides that the declarant must sign the directive in the presence of at least two witnesses, at least one of whom must be a witness who qualifies under Section 166.003, Health and Safety Code. Deletes text authorizing another person to notify the attending physician of the existence of the written directive in the event the declarant is comatose. Redesignates existing Subsections (d), and (e) to Subsections (c) and (d). Makes conforming and nonsubstantive changes. Sec. 166.033. FORM OF WRITTEN DIRECTIVE. Redesignated from Section 672.004, Health and Safety Code. Sets forth the language of the Directive to Physicians and Family or Surrogates. Deletes the former Directive to Physicians set forth in this section. Sec. 166.034. ISSUANCE OF NONWRITTEN DIRECTIVE BY COMPETENT ADULT QUALIFIED PATIENT. Redesignated from Section 672.005, Health and Safety Code. Stipulates that a declarant must issue the nonwritten directive in the presence of the attending physician, at least one of whom must fall within certain categories with respect to the person's relationship to the declarant as set forth in Section 166.003. Deletes the requirement that the witnesses must possess the same qualifications as those required by Section 672.003(c). Requires the names of the witnesses to the nonwritten directive to be entered in the declarant's medical record, rather than requiring the witnesses to sign the entry. Sec. 166.035. EXECUTION OF DIRECTIVE ON BEHALF OF PATIENT YOUNGER THAN 18 YEARS OF AGE. Redesignated from Section 672.006, Health and Safety Code. Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT OF SPECIFIC FORM PROHIBITED. (a) Provides that a written directive executed under Section 166.033 or 166.035, Health and Safety Code, is effective without regard to whether the document has been notarized. (b) Prohibits a physician, health care facility, or health care professional from requiring that the directive be notarized or that a person use a form provided by the physician, facility, or professional. Sec. 166.037. PATIENT DESIRE SUPERSEDES DIRECTIVE. Redesignated from Section 672.007, Health and Safety Code. Sec. 166.038. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. Redesignated from Section 672.008, Health and Safety Code. Deletes the applicability of this section when a patient is comatose. Provides that the treatment decision under this section made by the attending physician and a person authorized to make such a decision by Section 166.032 may be made in accordance with the declarant's directions. Makes conforming changes. Sec. 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. Redesignated from Section 672.009, Health and Safety Code. Adds an agent under a medical power of attorney to a list of those persons authorized to make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from an adult patient who has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable or communication. Provides that if the patient does not have a legal guardian or such an agent, the attending physician and one person, rather than two people, from one of certain categories may make the treatment decision, if that person is available. Includes the patient's reasonably available adult children, rather than a majority of the patient's adult children, under this provision. Specifies that if the patient does not have a legal guardian and a person among those listed is unavailable, a treatment decision must be concurred in, rather than witnessed, by another physician not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient. Provides that a person listed among those authorized to make a decision regarding the patient's treatment who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Section 875 (Temporary Guardian--Procedure), Texas Probate Code. Authorizes the court to waive applicable fees in that proceeding. Makes conforming changes. Sec. 166.040. PATIENT CERTIFICATION AND PREREQUISITES FOR COMPLYING WITH DIRECTIVE. Redesignated from Section 672.010, Health and Safety Code. Requires an attending physician who has been notified of the existence of a directive to provide for the declarant's certification as a qualified patient on diagnosis of an irreversible, as well as terminal, condition. Deletes the requirements that an attending physician, before withholding or withdrawing life-sustaining procedures from a qualified patient under this subchapter, must determine that the patient's death is imminent or will result within a relatively short time without application of life-sustaining procedures and note that determination in the patient's medical records. Makes conforming changes. Sec. 166.041. DURATION OF DIRECTIVE. Redesignated from Section 672.011, Health and Safety Code. Makes a conforming change. Sec. 166.042. REVOCATION OF DIRECTIVE. Redesignated from Section 672.012, Health and Safety Code. Makes a conforming change. Sec. 166.043. REEXECUTION OF DIRECTIVE. Redesignated from Section 672.013, Health and Safety Code. Makes conforming changes. Deletes existing Section 672.014 (Effect of Directive on Insurance Policy and Premiums), Health and Safety Code, to make conforming changes. Sec. 166.044. LIMITATION OF LIABILITY FOR WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. Redesignated from Section 672.015, Health and Safety Code. Provides that a physician or facility that causes life-sustaining treatment to be withheld or withdrawn from a qualified patient in accordance with this subchapter is not civilly liable for that action unless the physician or facility fails to exercise reasonable care when applying the patient's advance directive, rather than unless the physician or facility are negligent. Requires the standard of care that a physician, facility or health care professional exercises under this chapter to be a degree of care that these individuals or entities, as applicable, of ordinary prudence and skill would have exercised under the same or similar circumstances in the same or a similar community. Makes conforming and nonsubstantive changes. Sec. 166.045. LIABILITY FOR FAILURE TO EFFECTUATE DIRECTIVE. Redesignated from Section 672.016, Health and Safety Code. Provides that a physician or health care professional acting under the direction of a physician is subject to review and disciplinary action by the appropriate licensing board, rather than is not civilly or criminally liable, for failing to effectuate a qualified patient's directive in violation of this subchapter or other laws of this state. Provides that this subsection does not limit remedies available under other state laws. Requires life-sustaining treatment to be provided to the patient, if an attending physician refuses to comply with a directive or treatment decision and does not wish to follow the procedure established under Section 166.046, but only until a reasonable opportunity has been afforded for the patient's transfer to another physician or health care facility willing to comply with the directive or treatment decision. Provides that a physician, health professional acting under a physician's direction, or health care facility is not civilly or criminally liable or subject to review or disciplinary action by the person's appropriate licensing board if the person has complied with the procedures outlined in Section 166.046, Health and Safety Code. Makes a conforming change. Sec. 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE. (a) Requires that, if an attending physician refuses to honor a patient's advance directive or treatment decision under Section 166.039, Health and Safety Code, this refusal be reviewed by an ethics or medical committee. Prohibits the attending physician from being a member of the committee. Requires the patient to be given life-sustaining treatment during the review. (b) Requires that the patient or person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision be informed of the committee review process within a certain time frame, unless waived by mutual agreement and entitles these individuals to attend to meeting and receive a written explanation of the decision reached during the review process. (c) Provides that the written explanation required by Subsection (b) must be included in the patient's medical record. (d) Requires an attending physician, if that physician, the patient, or person responsible for health care decisions of the patient does not agree with the decision reached during the review process, to make reasonable effort to transfer the patient to a physician willing to comply with the directive. Requires the facility's personnel, if the patient is a patient in the health care facility, to assist the physician in arranging the patient's transfer to another physician, an alternative care setting within that facility, or another facility. (e) Requires the patient, if requesting life-sustaining treatment that the attending physician and the review process have decided is inappropriate, to be given available lifesustaining treatment pending transfer under Subsection (d). Provides that the patient is responsible for any costs incurred in transferring to another facility. Provides that the physician and health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g). (f) Prohibits life-sustaining treatment under this section from being entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired. (g) Requires the appropriate district or county court, at the request of the participant or person responsible for the patient's health care decisions, to extend the time period required under Subsection (e) only if the court finds reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted. (h) Provides that this section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 (Home and Community Support Services), Health and Safety Code, or similar organization that is beyond the scope of the services or resources of the facility or agency. Makes this section inapplicable to hospice services provided by a home or community support services agency licensed under Chapter 142, Health and Safety Code. Sec. 166.047. HONORING DIRECTIVE DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. Redesignated from Section 672.017, Health and Safety Code. Makes conforming changes. Sec. 166.048. CRIMINAL PENALTY; PROSECUTION. Redesignated from Section 672.018, Health and Safety Code. Makes conforming changes. Sec. 166.049. PREGNANT PATIENTS. Redesignated from Section 672.019, Health and Safety Code. Makes conforming changes. Sec. 166.050. MERCY KILLING NOT CONDONED. Redesignated from Section 672.020, Health and Safety Code. Makes conforming changes. Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. Redesignated from Section 672.021, Health and Safety Code. Includes the provision under this section that if an attending physician or health care facility is unwilling to honor a patient's advance directive or a treatment decision to provide life-sustaining treatment, the treatment is required to be provided the patient, but only until a reasonable opportunity has been afforded for transfer of the patient to another physician or health care facility willing to comply with the advance directive or treatment decision. Makes conforming changes. SECTION 1.04. Transfers Chapter 674, Health and Safety Code, to Subtitle H, Title 2, Health and Safety Code, and redesignates it as Subchapter C, Chapter 166, Health and Safety Code, as follows: New title: SUBCHAPTER C. OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDERS. Redesignated from Chapter 674, Health and Safety Code. Sec. 166.081. DEFINITIONS. Redesignated from Section 674.001, Health and Safety Code. Redefines "cardiopulmonary resuscitation," and "out-of-hospial setting." Deletes the definitions of "attending physician," "board," "competent," "declarant," "department," "durable power of attorney for health care," "incompetent," "life-sustaining procedure," "physician," and "terminal condition" for purposes of this subchapter. Redefines "out-ofhospital DNR order" (DNR order) as a legally-binding out-of-hospital do-not-resuscitate order, in the form specified by the board under Section 166.083, Health and Safety Code, and signed by the attending physician of a person, rather than a person who has been diagnosed as having a terminal condition. Deletes endotrachacheal intubation, but not advanced airway management, as one of the life-sustaining procedures which a person or the person's legally authorized representative may direct a health care professional in an out-of-hospital setting not to initiate. Deletes the administration of cardiac resuscitation medications from the list of these life-sustaining procedures. Makes conforming changes. Sec. 166.082. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE TO PHYSICIANS. Redesignated from Section 674.002, Health and Safety Code. Deletes the requirement that a witness must have the same qualifications as those provided by Section 672.003(c), Health and Safety Code. Authorizes the agent designated by a person to make any decisions the person required as to an out-of-hospital DNR, if the person if incompetent, but previously executed or issued a medical power of attorney, rather than a durable power of attorney for health care. Makes conforming changes. Sec. 166.083. FORM OF OUT-OF-HOSPITAL DNR ORDER. Redesignated from Section 674.003, Health and Safety Code. Includes a hospital emergency department among those out-of-hospital settings applicable to this section. Provides that the standard form of a DNR order specified by the board must include a separate section for execution of the document by at least one qualified relative, rather than two. Authorizes a photocopy or other complete facsimile of the original written DNR order executed under this subchapter to be used for any purpose for which the original written order may be used under this subchapter. Makes conforming and nonsubstantive changes. Sec. 166.084. ISSUANCE OF OUT-OF-HOSPITAL DNR ORDER BY NONWRITTEN COMMUNICATION. Redesignated from Section 674.004, Health and Safety Code. Makes conforming changes. Sec. 166.085. EXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON BEHALF OF A MINOR. Redesignated from Section 674.005, Health and Safety Code. Sec. 166.086. DESIRE OF PERSON SUPERSEDES OUT-OF-HOSPITAL DNR ORDER. Redesignated from Section 674.006, Health and Safety Code. Makes a conforming change. Sec. 166.087. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. Redesignated from Section 674.007, Health and Safety Code. Makes conforming changes. Sec. 166.088. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED OUTOF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. Redesignated from Section 674.008, Health and Safety Code. Authorizes a physician and at least one qualified relative, rather than two, from a category listed by Section 166.039(b), subject to the priority established under that subsection, to execute a DNR order in the same manner as a treatment decision made under Section 166.039(b), rather than Section 672.009(b), Health and Safety Code, if the person does not have a legal guardian, proxy, or agent under a medical power of attorney. Provides that a DNR order must be made in the presence of at least two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under certain categories of that section with respect to the witness' relationship to the patient. Provides that if there is not a qualified relative available to act for the person, an out-of-hospital DNR order must be concurred in by another physician not involved in the patient's treatment or who is a representative of the ethics or medical committee of the health care facility in which the person is a patient. Provides that a person listed in Section 166.039(b), Health and Safety Code, who wishes to challenge a decision under this section is required to apply for temporary guardianship under Section 875 (Temporary Guardian--Procedure), Texas Probate Court. Authorizes the court to waive the applicable fees in that proceeding. Makes conforming changes. Sec. 166.089. COMPLIANCE WITH OUT-OF-HOSPITAL DNR ORDER. Redesignated from Section 674.009, Health and Safety Code. Provides that a DNR order form or a copy of the form, when available, must accompany a person during transport. Makes conforming changes. Sec. 166.090. DNR IDENTIFICATION DEVICE. Redesignated from Section 674.010, Health and Safety Code. Makes conforming changes. Sec. 166.091. DURATION OF OUT-OF-HOSPITAL DNR ORDER. Redesignated from Section 674.011, Health and Safety Code. Makes a conforming change. Sec. 166.092. REVOCATION OF OUT-OF-HOSPITAL DNR ORDER. Redesignated from Section 674.012, Health and Safety Code. Makes conforming changes. Sec. 166.093. REEXECUTION OF OUT-OF-HOSPITAL DNR ORDER. Redesignated from Section 674.013, Health and Safety Code. Deletes existing Section 674.014 (Conflict with Natural Death Act or Durable Power of Attorney for Health Care) and text stating that to the extend that a DNR order conflicts with a directive or treatment decision executed or issued under Chapter 672 (Natural Death Act), Health and Safety Code, or a durable power of attorney for health care executed or issued in accordance with Chapter 135 (Durable Power of Attorney for Health Care), Civil Practice and Remedies Code, the instrument executed later in time controls. Deletes existing Section 674.015 (Effect of Out-of-Hospital DNR Order on Insurance Policy and Premiums) and text regarding the effects of a DNR order on a person's insurance policy and premiums and providing certain prohibitions. Makes conforming changes. Sec. 166.094. LIMITATION ON LIABILITY FOR WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER LIFE-SUSTAINING PROCEDURES. Redesignated from Section 674.016, Health and Safety Code. Makes conforming changes. Sec. 166.095. LIMITATION ON LIABILITY FOR FAILURE TO EFFECTUATE OUTOF-HOSPITAL DNR ORDER. Redesignated from Section 674.017, Health and Safety Code. Provides that a health care professional or health care facility or entity is subject to review and disciplinary action by the appropriate licensing board, rather than not civilly or criminally liable, for failing to effectuate a DNR order. Provides that this subsection does not limit remedies available under other laws of this state. Makes a conforming change. Sec. 166.096. HONORING OUT-OF-HOSPITAL DNR ORDER DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. Redesignated from Section 674.018, Health and Safety Code. Makes conforming changes. Sec. 166.097. CRIMINAL PENALTY; PROSECUTION. Redesignated from Section 674.019, Health and Safety Code. Makes conforming changes. Sec. 166.098. PREGNANT PERSONS. Redesignated from Section 674.020, Health and Safety Code. Makes conforming changes. Sec. 166.099. MERCY KILLING NOT CONDONED. Redesignated from Section 674.021, Health and Safety Code. Makes conforming changes. Sec. 166.100. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. Redesignated from Section 674.022, Health and Safety Code. Makes conforming changes. Sec. 166.101. DUTIES OF DEPARTMENT AND BOARD. Redesignated from Section 674.023, Health and Safety Code. Deletes existing Section 674.024 (Recognition of Out-ofHospital DNR Executed or Issued in Other State). Deletes text stating that a DNR order executed, issued, or authorized in another state or a territory or possession of the United States in compliance with the law of that jurisdiction is effective for purposes of this chapter. Makes conforming changes. SECTION 1.05. Transfers Chapter 135, Civil Practice and Remedies Code, to Subtitle H, Title 2, Health and Safety Code, and redesignates it as Subchapter D, Chapter 166, Health and Safety Code, as follows: SUBCHAPTER D. MEDICAL POWER OF ATTORNEY Deletes old title: CHAPTER 135. DURABLE POWER OF ATTORNEY FOR HEALTH CARE Sec. 166.151. DEFINITIONS. Redesignated from Section 135.001, Civil Practice and Remedies Code. Deletes from the definitions listed for purposes of this chapter the following terms: "attending physician," "capacity to make health care decisions," "durable power of attorney for health care," "health care decision," and "physician." Makes conforming changes. Sec. 166.152. SCOPE AND DURATION OF AUTHORITY. Redesignated from Section 135.002, Civil Practices and Remedies Code. Authorizes an agent contained in the medical power of attorney to make any health care decision on a principal's behalf that the principal could make if the principal were competent, rather than but for the principal's lack of capacity to make health care decisions, subject to this subchapter or any express limitation on the authority of the agent. Makes conforming and nonsubstantive changes. Sec. 166.153. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT. Redesignated from Section 135.003, Civil Practices and Remedies Code. Sec. 166.154. EXECUTION AND WITNESSES. Redesignated from Section 135.004, Civil Practices and Remedies Code. Provides that the medical power of attorney must be signed by the principal in the presence of two, rather than at least two or more, witnesses, rather than subscribing witnesses, who qualify under Section 166.003, Health and Safety Code, at least one of whom must fall into a certain category set forth in that section with respect to the witness' relationship to the patient. Provides that the witnesses must sign the document. Deletes text prohibiting a witness, at the time of the execution, from falling into certain categories of persons. Deletes text requiring the witnesses to affirm that, at the time the durable power of attorney for health care was signed, the principal appeared to be of sound mind to make a health care decision, stated in the witness's presence that the principal was aware of the nature of the durable power of attorney and that the principal was signing the document voluntarily and free from duress; and requested that the witness serve as a witness to the principal's execution of the document. Redesignates Subsection (d) to Subsection (b). Makes conforming changes. Sec. 166.155. REVOCATION. Redesignated from Section 135.005, Civil Practices and Remedies Code. Provides that a medical power of attorney is revoked by oral or written notification at any time by the principal to the agent or a licensed or certified health or residential care provider or by any other act evidencing a specific intent to revoke the power, without regard to whether the principal is competent or the principal's mental state, rather that the principal's competency, or capacity to make health care decisions. Additionally provides that the medical power of attorney is revoked by the divorce of the principal and spouse, if the spouse is the principal's agent, unless the medical power of attorney provides otherwise. Makes conforming changes. Sec. 166.156. APPOINTMENT OF GUARDIAN. Redesignated from Section 135.006, Civil Practices and Remedies Code. Makes conforming changes. Sec. 166.157. DISCLOSURE OF MEDICAL INFORMATION. Redesignated from Section 135.007, Civil Practices and Remedies Code. Makes conforming changes. Sec. 166.158. DUTY OF HEALTH OR RESIDENTIAL CARE PROVIDER. Redesignated from Section 135.008, Civil Practices and Remedies Code. Makes the procedures established under Sections 166.045 and 166.046, Health and Safety Code, applicable if the agent's directive concerns providing, withholding, or withdrawing life-sustaining treatment. Makes conforming changes. Sec. 166.159. New title: DISCRIMINATION RELATING TO EXECUTION OF MEDICAL POWER OF ATTORNEY. Redesignated from Section 135.009, Civil Practices and Remedies Code. Makes conforming changes. Sec. 166.160. LIMITATION ON LIABILITY. Redesignated from Section 135.010, Civil Practices and Remedies Code. Provides that an attending physician, health or residential care provider, or a person acting as an agent for or under the physician's or provider's control is not subject to criminal or civil liability and has not engaged in unprofessional conduct for an act or omission if the act or omission does not constitute a failure to exercise reasonable, rather than due, care in the provision of health care services. Provides that the standard of care that the physician, provider, or agent is required to exercise under this section is that degree of care that the physician, provider, or agent, as applicable, of ordinary prudence and skill would have exercised under the same or similar circumstance in the same or similar community. Redesignates Subsection (c) to Subsection (d). Makes conforming changes. Sec. 166.161. LIABILITY FOR HEALTH CARE COSTS. Redesignated from Section135.011, Civil Practices and Remedies Code. Deletes existing Section 135.012 (Natural Death Act). Deletes existing text stating that to the extent that a durable power of attorney for health care conflicts with a directive or treatment decision executed under the Natural Death Act (Chapter 672, Health and Safety Code), the instrument executed later in time controls. Further states that a physician who withholds or withdraws life-sustaining procedures from a principal with a terminal condition as required by an agent's directive is not required to comply with this Act. Deletes existing Section 135.013 (Enforceability of Durable Power of Attorney Executed in Another Jurisdiction). Deletes text stating that this chapter does not limit the enforceability of a durable power of a attorney for health care or similar instrument executed in another state or jurisdiction if the instrument complies with the law of the state or jurisdiction. Sec. 166.162. DISCLOSURE STATEMENT. Redesignated from Section 135.014, Civil Practices and Remedies Code. Makes conforming changes. Sec. 166.163. FORM OF DISCLOSURE STATEMENT. Redesignated from Section 135.015, Civil Practices and Remedies Code. Modifies the title of a disclosure statement to reflect conforming changes and modifies substantive language in a disclosure statement to delete the following persons prohibited from acting as potential qualified witnesses: _a principal's health or residential health care provider or an employee of the provider; _a principal's spouse; _a principal's lawful heirs or beneficiaries named in the principal's will or a deed; or _creditors or persons who have a claim against the principal. Modifies substantive language in a disclosure form to add to a list of persons prohibited from being potential qualified witnesses: _a person related to the principal by blood or marriage; _a person entitled to any part of the principal's estate after the principal's death under a will executed by the principal or by operation of law; _the principal's attending physician or an employee of the principal's attending physician; _an employee of a health care facility in which the principal is a patient, or if the employee is providing direct patient care to the principal or is an officer, director, partner, or business office employee of the facility or of any parent organization of the facility; or _a person, who at the time the power of attorney is executed, has a claim against any part of the principal's estate after death. Makes other conforming changes. Sec. 166.164. New title: FORM OF MEDICAL POWER OF ATTORNEY. Redesignated from Section 135.016, Civil Practices and Remedies Code. Sets forth the substantive form of the durable power of attorney and makes conforming changes within. Sec. 166.165. CIVIL ACTION. Redesignated from Section 135.017, Civil Practices and Remedies Code. Makes conforming changes. Sec. 166.166. OTHER RIGHTS OR RESPONSIBILITIES NOT AFFECTED. Redesignated from Section 135.018, Civil Practices and Remedies Code. Provides that if an attending physician or health care facility is unwilling to honor a patient's advance directive or treatment decision to provide life-sustaining treatment, that treatment is required to be provided to the patient until a reasonable opportunity has been afforded for the patient's transfer to another physician or health care facility willing to comply with the directive or decision. Makes a conforming change. ARTICLE 2. CONFORMING AMENDMENTS SECTION 2.01. Amends Subsection (a), Section 313.003, Health and Safety Code, to make conforming changes. SECTION 2.02. Amends Subchapter A, Chapter 142, Health and Safety Code, by adding Section 142.0145, as follows: Sec. 142.0145. VIOLATION OF LAWS RELATING TO ADVANCE DIRECTIVES. (a) Requires the Texas Department of Health (department) to assess an administrative penalty of $500 against a home and community support services agency that violates Section 166.004, Health and Safety Code. Requires the penalty to be assessed according to department rules. Requires the rules to provide for notice an opportunity for hearing. SECTION 2.03. Amends Subsections (a) and (c), Section 241.059, Health and Safety Code, to require the commissioner of public health (commissioner) to assess an administrative penalty against a hospital that violates Section 166.004, Health and Safety Code. Prohibits the penalty from exceeding $1,000 for each violation, except that a penalty for a violation of Section 166.004, Health and Safety Code, is required to be $500. Authorizes each day of a continuing violation, other than a violation under Section 166.004, Health and Safety Code, to be considered a separate violation. SECTION 2.04. Amends Subchapter C, Chapter 242, Health and Safety Code, by adding Section 242.0663, as follows: Sec. 242.0663. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) Requires the department to assess an administrative penalty under this subchapter against an institution that violates Section 166.004, Health and Safety Code. Provides that notwithstanding Sections 244.066(b) and (c), a penalty assessed in accordance with this section is required to be $500 and prohibits a separate penalty from being assessed for a separate day of a continuing violation. Makes Section 242.0665, Health and Safety Code, inapplicable to a penalty assessed according to this section. SECTION 2.05. Amends Subchapter C, Chapter 247, Health and Safety Code, by adding Section 247.0445, as follows: Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) Requires the department to assess an administrative penalty of $500 against a personal care facility that violates Section 166.004, Health and Safety Code. Requires the penalty to be assessed according to department rules. Requires the rules to provide for notice and an opportunity for a hearing. SECTION 2.06. Amends Subchapter C, Chapter 248, Health and Safety Code, by adding Section 248.0545, Health and Safety Code, as follows: Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE DIRECTIVES. (a) Requires the department to assess an administrative penalty of $500 against a special care facility that violates Section 166.004, Health and Safety Code. Requires the penalty to be assessed according to department rules. Requires the rules to provide for notice and an opportunity for a hearing. ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE SECTION 3.01. Effective date: September 1, 1999. SECTION 3.02. (a) Makes the change in law made by this Act prospective with respect to the validity of a document executed under Chapter 672 or 674, Health and Safety Code, or Chapter 135, Civil Practice and Remedies Code. (b) Provides that a reference in a law to a "durable power of attorney for health care" means a medical power of attorney, as defined by Section 166.002, Health and Safety Code, as added by this Act. SECTION 3.03. Makes the change in law made by this Act prospective with respect to the punishment for an offense. SECTION 3.04. Makes the change in law made by this Act to Sections 166.045(b) and 166.095(b), Health and Safety Code, as redesignated by this Act, prospective to conduct occurring on or after January 1, 2000. SECTION 3.05 Emergency clause.