By Moncrief S.B. No. 1260
76R6188 CMR-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain advance directives for medical treatment;
1-3 providing administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. ADVANCE DIRECTIVES
1-6 SECTION 1.01. Subtitle H, Title 2, Health and Safety Code,
1-7 is amended by adding a chapter heading for Chapter 166 to read as
1-8 follows:
1-9 CHAPTER 166. ADVANCE DIRECTIVES
1-10 SECTION 1.02. Subtitle H, Title 2, Health and Safety Code,
1-11 is amended by adding Subchapter A, Chapter 166, to read as follows:
1-12 SUBCHAPTER A. GENERAL PROVISIONS
1-13 Sec. 166.001. SHORT TITLE. This chapter may be cited as the
1-14 Advance Directives Act.
1-15 Sec. 166.002. DEFINITIONS. In this chapter:
1-16 (1) "Advance directive" means:
1-17 (A) a directive, as that term is defined by
1-18 Section 166.031;
1-19 (B) an out-of-hospital DNR order, as that term
1-20 is defined by Section 166.081; or
1-21 (C) a durable power of attorney for health care.
1-22 (2) "Attending physician" means a physician selected
1-23 by or assigned to a patient who has primary responsibility for a
1-24 patient's treatment and care.
2-1 (3) "Competent" means possessing the ability, based on
2-2 reasonable medical judgment, to understand and appreciate the
2-3 nature and consequences of a treatment decision, including the
2-4 significant benefits and harms of and reasonable alternatives to a
2-5 proposed treatment decision.
2-6 (4) "Declarant" means a person who has executed or
2-7 issued a directive under this chapter.
2-8 (5) "Durable power of attorney for health care" means
2-9 a document delegating to an agent authority to make health care
2-10 decisions executed or issued under Subchapter D.
2-11 (6) "Incompetent" means lacking the ability, based on
2-12 reasonable medical judgment, to understand and appreciate the
2-13 nature and consequences of a treatment decision, including the
2-14 significant benefits and harms of and reasonable alternatives to a
2-15 proposed treatment decision.
2-16 (7) "Life-sustaining procedure" means a medical
2-17 procedure, treatment, or intervention that uses mechanical or other
2-18 artificial means to sustain, restore, or supplant a vital function
2-19 and, when applied to a person in a terminal condition, serves only
2-20 to prolong the process of dying. The term does not include the
2-21 administration of medication or the performance of a medical
2-22 procedure considered to be necessary to provide comfort or care or
2-23 to alleviate pain.
2-24 (8) "Physician" means:
2-25 (A) a physician licensed by the Texas State
2-26 Board of Medical Examiners; or
2-27 (B) a properly credentialed physician who holds
3-1 a commission in the uniformed services of the United States and who
3-2 is serving on active duty in this state.
3-3 (9) "Terminal condition" means an incurable or
3-4 irreversible condition caused by injury, disease, or illness that
3-5 would produce death without the application of life-sustaining
3-6 procedures, according to reasonable medical judgment, and in which
3-7 the application of life-sustaining procedures serves only to
3-8 postpone the moment of the patient's death. A patient who has been
3-9 admitted to a program under which the person receives hospice
3-10 services provided by a home and community support services agency
3-11 licensed under Chapter 142 is presumed to have a terminal condition
3-12 for purposes of this chapter.
3-13 Sec. 166.003. WITNESSES. In any circumstance in which this
3-14 chapter requires the execution of an advance directive or the
3-15 issuance of a nonwritten advance directive to be witnessed, at
3-16 least one of the witnesses must be a person who is not:
3-17 (1) a person designated by the declarant to make a
3-18 treatment decision;
3-19 (2) a person related to the declarant by blood or
3-20 marriage;
3-21 (3) a person entitled to any part of the declarant's
3-22 estate after the declarant's death under a will or codicil executed
3-23 by the declarant or by operation of law;
3-24 (4) the attending physician;
3-25 (5) an employee of the attending physician;
3-26 (6) an employee of a health care facility in which the
3-27 declarant is a patient if the employee is providing direct patient
4-1 care to the declarant or is an officer, director, partner, or
4-2 business office employee of the health care facility or of any
4-3 parent organization of the health care facility; or
4-4 (7) a person who, at the time the written directive is
4-5 executed or at the time the nonwritten directive is issued, has a
4-6 claim against any part of the declarant's estate after the
4-7 declarant's death.
4-8 Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE. (a)
4-9 In this section, "health care provider" means:
4-10 (1) a hospital;
4-11 (2) an institution licensed under Chapter 242,
4-12 including a skilled nursing facility;
4-13 (3) a home and community support services agency;
4-14 (4) a personal care facility; and
4-15 (5) a special care facility.
4-16 (b) A health care provider shall maintain written policies
4-17 regarding the implementation of advance directives. The policies
4-18 must include a clear and precise statement of any procedure the
4-19 health care provider is unwilling or unable to withhold in
4-20 accordance with an advance directive.
4-21 (c) Except as provided by Subsection (g), the health care
4-22 provider shall provide written notice to an individual of the
4-23 written policies described by Subsection (b). The notice must be
4-24 provided at the earlier of:
4-25 (1) the time the individual is admitted to receive
4-26 services from the health care provider; or
4-27 (2) the time the health care provider begins providing
5-1 care to the individual.
5-2 (d) If, at the time notice is to be provided under
5-3 Subsection (c), the individual is incompetent or otherwise
5-4 incapacitated and unable to receive the notice required by this
5-5 section, the provider shall provide the required written notice, in
5-6 the following order of preference, to:
5-7 (1) the individual's legal guardian;
5-8 (2) the individual's spouse;
5-9 (3) the individual's adult child;
5-10 (4) the individual's parent;
5-11 (5) the person admitting the individual; or
5-12 (6) another person responsible for the health care
5-13 decisions of the individual.
5-14 (e) If Subsection (d) applies and except as provided by
5-15 Subsection (f), if a health care provider is unable, after diligent
5-16 search, to locate an individual listed by Subsection (d), the
5-17 health care provider is not required to provide the notice.
5-18 (f) If an individual who was incompetent or otherwise
5-19 incapacitated and unable to receive the required notice at the time
5-20 notice was to be provided under Subsection (c) later becomes able
5-21 to receive the notice, the health care provider shall provide the
5-22 written notice at the time the individual becomes able to receive
5-23 the notice.
5-24 (g) This section does not apply to outpatient hospital
5-25 services, including emergency services.
5-26 Sec. 166.005. ENFORCEABILITY OF ADVANCE DIRECTIVES EXECUTED
5-27 IN ANOTHER JURISDICTION. An advance directive or similar
6-1 instrument validly executed in another state or jurisdiction shall
6-2 be given the same effect as an advance directive validly executed
6-3 under the law of this state. This section does not authorize the
6-4 administration, withholding, or withdrawal of health care otherwise
6-5 prohibited by the laws of this state.
6-6 Sec. 166.006. EFFECT OF ADVANCE DIRECTIVE ON INSURANCE
6-7 POLICY AND PREMIUMS. (a) The fact that a person has executed or
6-8 issued an advance directive does not:
6-9 (1) restrict, inhibit, or impair in any manner the
6-10 sale, procurement, or issuance of a life insurance policy to that
6-11 person; or
6-12 (2) modify the terms of an existing life insurance
6-13 policy.
6-14 (b) Notwithstanding the terms of any life insurance policy,
6-15 the fact that life-sustaining procedures are withheld or withdrawn
6-16 from an insured qualified patient under this chapter does not
6-17 legally impair or invalidate that person's life insurance policy.
6-18 (c) The fact that a person has executed or issued or failed
6-19 to execute or issue an advance directive may not be considered in
6-20 any way in establishing insurance premiums.
6-21 Sec. 166.007. EXECUTION OF ADVANCE DIRECTIVE MAY NOT BE
6-22 REQUIRED. A physician, health facility, health care provider,
6-23 insurer, or health care service plan may not require a person to
6-24 execute or issue an advance directive as a condition for obtaining
6-25 insurance for health care services or receiving health care
6-26 services.
6-27 Sec. 166.008. CONFLICT BETWEEN ADVANCE DIRECTIVES. To the
7-1 extent that a treatment decision or an advance directive validly
7-2 executed or issued under this chapter conflicts with another
7-3 treatment decision or an advance directive executed or issued under
7-4 this chapter, the treatment decision made or instrument executed
7-5 later in time controls.
7-6 SECTION 1.03. Chapter 672, Health and Safety Code, is
7-7 transferred to Subtitle H, Title 2, Health and Safety Code, is
7-8 redesignated as Subchapter B, Chapter 166, Health and Safety Code,
7-9 and is amended to read as follows:
7-10 SUBCHAPTER B. DIRECTIVE TO PHYSICIANS [CHAPTER 672. NATURAL
7-11 DEATH ACT]
7-12 [Sec. 672.001. SHORT TITLE. This chapter may be cited as
7-13 the Natural Death Act.]
7-14 Sec. 166.031 [672.002]. DEFINITIONS. In this subchapter
7-15 [chapter]:
7-16 (1) ["Attending physician" means the physician who has
7-17 primary responsibility for a patient's treatment and care.]
7-18 [(2) "Competent" means possessing the ability, based
7-19 on reasonable medical judgment, to understand and appreciate the
7-20 nature and consequences of a treatment decision, including the
7-21 significant benefits and harms of and reasonable alternatives to a
7-22 proposed treatment decision.]
7-23 [(3) "Declarant" means a person who has executed or
7-24 issued a directive under this chapter.]
7-25 [(4)] "Directive" means an instruction made under
7-26 Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]
7-27 to administer, withhold, or withdraw life-sustaining procedures in
8-1 the event of a terminal condition.
8-2 (2) [(5) "Incompetent" means lacking the ability,
8-3 based on reasonable medical judgment, to understand and appreciate
8-4 the nature and consequences of a treatment decision, including the
8-5 significant benefits and harms of and reasonable alternatives to a
8-6 proposed treatment decision.]
8-7 [(6) "Life-sustaining procedure" means a medical
8-8 procedure or intervention that uses mechanical or other artificial
8-9 means to sustain, restore, or supplant a vital function, and only
8-10 artificially postpones the moment of death of a patient in a
8-11 terminal condition whose death is imminent or will result within a
8-12 relatively short time without the application of the procedure.
8-13 The term does not include the administration of medication or the
8-14 performance of a medical procedure considered to be necessary to
8-15 provide comfort or care or to alleviate pain.]
8-16 [(7) "Physician" means a physician licensed by the
8-17 Texas State Board of Medical Examiners or a properly credentialed
8-18 physician who holds a commission in the uniformed services of the
8-19 United States and who is serving on active duty in this state.]
8-20 [(8)] "Qualified patient" means a patient with a
8-21 terminal condition that has been diagnosed and certified in writing
8-22 by the attending physician [and one other physician who have
8-23 personally examined the patient].
8-24 [(9) "Terminal condition" means an incurable or
8-25 irreversible condition caused by injury, disease, or illness that
8-26 would produce death without the application of life-sustaining
8-27 procedures, according to reasonable medical judgment, and in which
9-1 the application of life-sustaining procedures serves only to
9-2 postpone the moment of the patient's death.]
9-3 Sec. 166.032 [672.003]. WRITTEN DIRECTIVE BY COMPETENT
9-4 ADULT; NOTICE TO PHYSICIAN. (a) A competent adult may at any time
9-5 execute a written directive.
9-6 (b) The declarant must sign the directive in the presence of
9-7 two witnesses, at least one of whom must be a witness who qualifies
9-8 under Section 166.003. The [and those] witnesses must sign the
9-9 directive.
9-10 (c) [A witness may not be:]
9-11 [(1) a person designated by the declarant to make a
9-12 treatment decision;]
9-13 [(2) a person related to the declarant by blood or
9-14 marriage;]
9-15 [(3) a person entitled to any part of the declarant's
9-16 estate after the declarant's death under a will or codicil executed
9-17 by the declarant or by operation of law;]
9-18 [(4) the attending physician;]
9-19 [(5) an employee of the attending physician;]
9-20 [(6) an employee of a health care facility in which
9-21 the declarant is a patient if the employee is providing direct
9-22 patient care to the declarant or is an officer, director, partner,
9-23 or business office employee of the health care facility or of any
9-24 parent organization of the health care facility; or]
9-25 [(7) a person who, at the time the written directive
9-26 is executed or if the directive is a nonwritten directive issued
9-27 under Section 672.005, at the time the nonwritten directive is
10-1 issued, has a claim against any part of the declarant's estate
10-2 after the declarant's death.]
10-3 [(d)] A declarant may include in a directive directions
10-4 other than those provided by Section 166.033 [672.004] and may
10-5 designate in a directive a person to make a treatment decision for
10-6 the declarant in the event the declarant becomes [comatose,]
10-7 incompetent[,] or otherwise mentally or physically incapable of
10-8 communication.
10-9 (d) [(e)] A declarant shall notify the attending physician
10-10 of the existence of a written directive. If the declarant is
10-11 [comatose,] incompetent[,] or otherwise mentally or physically
10-12 incapable of communication, another person may notify the attending
10-13 physician of the existence of the written directive. The attending
10-14 physician shall make the directive a part of the declarant's
10-15 medical record.
10-16 Sec. 166.033 [672.004]. FORM OF WRITTEN DIRECTIVE. A
10-17 written directive may be in the following form:
10-18 "DIRECTIVE TO PHYSICIANS
10-19 "Directive made this __________ day of __________ (month,
10-20 year).
10-21 "I ________________________, being of sound mind, wilfully
10-22 and voluntarily make known my desire that my life shall not be
10-23 artificially prolonged under the circumstances set forth in this
10-24 directive.
10-25 "1. If at any time I should have an incurable or
10-26 irreversible condition caused by injury, disease, or illness
10-27 certified to be a terminal condition by a physician [two
11-1 physicians], and if the application of life-sustaining procedures
11-2 would serve only to artificially postpone the moment of my death,
11-3 and if my attending physician determines that my death is imminent
11-4 or will result within a relatively short time without the
11-5 application of life-sustaining procedures, I direct that those
11-6 procedures be withheld or withdrawn, and that I be permitted
11-7 to die naturally.
11-8 "2. In the absence of my ability to give directions
11-9 regarding the use of those life-sustaining procedures, it is my
11-10 intention that this directive be honored by my family and
11-11 physicians as the final expression of my legal right to refuse
11-12 medical or surgical treatment and accept the consequences from that
11-13 refusal.
11-14 "3. If I have been diagnosed as pregnant and that diagnosis
11-15 is known to my physician, this directive has no effect during my
11-16 pregnancy.
11-17 "4. This directive is in effect until it is revoked.
11-18 "5. I understand the full import of this directive and I am
11-19 emotionally and mentally competent to make this directive.
11-20 "6. I understand that I may revoke this directive at any
11-21 time.
11-22 "Signed
11-23 _____________________________
11-24 _____________________________________
11-25 (City, County, and State of Residence)
11-26 I am not a person designated by the declarant to make a
11-27 treatment decision. I am not related to the declarant by blood or
12-1 marriage. I would not be entitled to any portion of the
12-2 declarant's estate on the declarant's death. I am not the
12-3 attending physician of the declarant or an employee of the
12-4 attending physician. I have no claim against any portion of the
12-5 declarant's estate on the declarant's death. Furthermore, if I am
12-6 an employee of a health care facility in which the declarant is a
12-7 patient, I am not involved in providing direct patient care to the
12-8 declarant and am not an officer, director, partner, or business
12-9 office employee of the health care facility or of any parent
12-10 organization of the health care facility.
12-11 "Witness___________________________________
12-12 "Witness__________________________________"
12-13 Sec. 166.034 [672.005]. ISSUANCE OF NONWRITTEN DIRECTIVE BY
12-14 COMPETENT ADULT QUALIFIED PATIENT. (a) A competent qualified
12-15 patient who is an adult may issue a directive by a nonwritten means
12-16 of communication.
12-17 (b) A declarant must issue the nonwritten directive in the
12-18 presence of the attending physician and two witnesses, at least one
12-19 of whom must be a witness who qualifies under Section 166.003.
12-20 [The witnesses must possess the same qualifications as are
12-21 required by Section 672.003(c).]
12-22 (c) The physician shall make the fact of the existence of
12-23 the directive a part of the declarant's medical record, and the
12-24 names of the witnesses shall be entered [sign the entry] in the
12-25 medical record.
12-26 Sec. 166.035 [672.006]. EXECUTION OF DIRECTIVE ON BEHALF OF
12-27 PATIENT YOUNGER THAN 18 YEARS OF AGE. The following persons may
13-1 execute a directive on behalf of a qualified patient who is younger
13-2 than 18 years of age:
13-3 (1) the patient's spouse, if the spouse is an adult;
13-4 (2) the patient's parents; or
13-5 (3) the patient's legal guardian.
13-6 Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT
13-7 OF SPECIFIC FORM PROHIBITED. (a) A written directive executed
13-8 under Section 166.033 or 166.035 is effective without regard to
13-9 whether the document has been notarized.
13-10 (b) A physician, health care facility, or health care
13-11 professional may not require that:
13-12 (1) a directive be notarized; or
13-13 (2) a person use a form provided by the physician,
13-14 health care facility, or health care professional.
13-15 Sec. 166.037 [672.007]. PATIENT DESIRE SUPERSEDES DIRECTIVE.
13-16 The desire of a competent qualified patient, including a competent
13-17 qualified patient younger than 18 years of age, supersedes the
13-18 effect of a directive.
13-19 Sec. 166.038 [672.008]. PROCEDURE WHEN DECLARANT IS
13-20 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
13-21 applies when an adult qualified patient has executed or issued a
13-22 directive and is [comatose,] incompetent[,] or otherwise mentally
13-23 or physically incapable of communication.
13-24 (b) If the adult qualified patient has designated a person
13-25 to make a treatment decision as authorized by Section 166.032(c)
13-26 [672.003(d)], the attending physician and the designated person may
13-27 make a treatment decision to withhold or withdraw life-sustaining
14-1 procedures from the patient.
14-2 (c) If the adult qualified patient has not designated a
14-3 person to make a treatment decision, the attending physician shall
14-4 comply with the directive unless the physician believes that the
14-5 directive does not reflect the patient's present desire.
14-6 Sec. 166.039 [672.009]. PROCEDURE WHEN PERSON HAS NOT
14-7 EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
14-8 COMMUNICATION. (a) If an adult qualified patient has not executed
14-9 or issued a directive and is [comatose,] incompetent[,] or
14-10 otherwise mentally or physically incapable of communication, the
14-11 attending physician and the patient's legal guardian or an agent
14-12 under a durable power of attorney for health care may make a
14-13 treatment decision that may include a decision to withhold or
14-14 withdraw life-sustaining procedures from the patient.
14-15 (b) If the patient does not have a legal guardian or an
14-16 agent under a durable power of attorney for health care, the
14-17 attending physician and one person from one [at least two persons,
14-18 if available,] of the following categories, in the following
14-19 priority, may make a treatment decision that may include a decision
14-20 to withhold or withdraw life-sustaining procedures:
14-21 (1) the patient's spouse;
14-22 (2) [a majority of] the patient's reasonably available
14-23 adult children;
14-24 (3) the patient's parents; or
14-25 (4) the patient's nearest living relative.
14-26 (c) A treatment decision made under Subsection (a) or
14-27 (b) must be based on knowledge of what the patient would desire,
15-1 if known.
15-2 (d) A treatment decision made under Subsection (b) must be
15-3 documented in the patient's medical record and signed by the
15-4 attending physician.
15-5 (e) If the patient does not have a legal guardian and a
15-6 person listed in Subsection (b) is not available, a treatment
15-7 decision made under Subsection (b) must be concurred in [witnessed]
15-8 by another physician who is not involved in the treatment of the
15-9 patient or who is an authorized representative of the ethics
15-10 committee of the health care facility in which the person is a
15-11 patient.
15-12 (f) The fact that an adult qualified patient has not
15-13 executed or issued a directive does not create a presumption that
15-14 the patient does not want a treatment decision to be made to
15-15 withhold or withdraw life-sustaining procedures.
15-16 (g) A person listed in Subsection (b) who wishes to
15-17 challenge a treatment decision made under this section must apply
15-18 for temporary guardianship under Section 875, Texas Probate Code.
15-19 The court may waive applicable fees in that proceeding.
15-20 Sec. 166.040 [672.010]. PATIENT CERTIFICATION AND
15-21 PREREQUISITES FOR COMPLYING WITH DIRECTIVE. (a) An attending
15-22 physician who has been notified of the existence of a directive
15-23 shall provide for the declarant's certification as a qualified
15-24 patient on diagnosis of a terminal condition.
15-25 (b) Before withholding or withdrawing life-sustaining
15-26 procedures from a qualified patient under this subchapter
15-27 [chapter], the attending physician must[:]
16-1 [(1) determine that the patient's death is imminent or
16-2 will result within a relatively short time without application of
16-3 those procedures;]
16-4 [(2) note that determination in the patient's medical
16-5 record; and]
16-6 [(3)] determine that the steps proposed to be taken
16-7 are in accord with this subchapter [chapter] and the patient's
16-8 existing desires.
16-9 Sec. 166.041 [672.011]. DURATION OF DIRECTIVE. A directive
16-10 is effective until it is revoked as prescribed by Section 166.042
16-11 [672.012].
16-12 Sec. 166.042 [672.012]. REVOCATION OF DIRECTIVE. (a) A
16-13 declarant may revoke a directive at any time without regard to the
16-14 declarant's mental state or competency. A directive may be revoked
16-15 by:
16-16 (1) the declarant or someone in the declarant's
16-17 presence and at the declarant's direction canceling, defacing,
16-18 obliterating, burning, tearing, or otherwise destroying the
16-19 directive;
16-20 (2) the declarant signing and dating a written
16-21 revocation that expresses the declarant's intent to revoke the
16-22 directive; or
16-23 (3) the declarant orally stating the declarant's
16-24 intent to revoke the directive.
16-25 (b) A written revocation executed as prescribed by
16-26 Subsection (a)(2) takes effect only when the declarant or a person
16-27 acting on behalf of the declarant notifies the attending physician
17-1 of its existence or mails the revocation to the attending
17-2 physician. The attending physician or the physician's designee
17-3 shall record in the patient's medical record the time and date when
17-4 the physician received notice of the written revocation and shall
17-5 enter the word "VOID" on each page of the copy of the directive in
17-6 the patient's medical record.
17-7 (c) An oral revocation issued as prescribed by Subsection
17-8 (a)(3) takes effect only when the declarant or a person acting on
17-9 behalf of the declarant notifies the attending physician of the
17-10 revocation. The attending physician or the physician's designee
17-11 shall record in the patient's medical record the time, date, and
17-12 place of the revocation, and, if different, the time, date, and
17-13 place that the physician received notice of the revocation. The
17-14 attending physician or the physician's designees shall also enter
17-15 the word "VOID" on each page of the copy of the directive in the
17-16 patient's medical record.
17-17 (d) Except as otherwise provided by this subchapter
17-18 [chapter], a person is not civilly or criminally liable for failure
17-19 to act on a revocation made under this section unless the person
17-20 has actual knowledge of the revocation.
17-21 Sec. 166.043 [672.013]. REEXECUTION OF DIRECTIVE. A
17-22 declarant may at any time reexecute a directive in accordance with
17-23 the procedures prescribed by Section 166.032 [672.003], including
17-24 reexecution after the declarant is diagnosed as having a terminal
17-25 condition.
17-26 [Sec. 672.014. EFFECT OF DIRECTIVE ON INSURANCE POLICY AND
17-27 PREMIUMS. (a) The fact that a person has executed or issued a
18-1 directive under this chapter does not:]
18-2 [(1) restrict, inhibit, or impair in any manner the
18-3 sale, procurement, or issuance of a life insurance policy to that
18-4 person; or]
18-5 [(2) modify the terms of an existing life insurance
18-6 policy.]
18-7 [(b) Notwithstanding the terms of any life insurance policy,
18-8 the fact that life-sustaining procedures are withheld or withdrawn
18-9 from an insured qualified patient under this chapter does not
18-10 legally impair or invalidate that person's life insurance policy.]
18-11 [(c) A physician, health facility, health provider, insurer,
18-12 or health care service plan may not require a person to execute or
18-13 issue a directive as a condition for obtaining insurance for health
18-14 care services or receiving health care services.]
18-15 [(d) The fact that a person has executed or issued or failed
18-16 to execute or issue a directive under this chapter may not be
18-17 considered in any way in establishing insurance premiums.]
18-18 Sec. 166.044 [672.015]. LIMITATION OF LIABILITY FOR
18-19 WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A
18-20 physician or health care facility that causes life-sustaining
18-21 procedures to be withheld or withdrawn from a qualified patient in
18-22 accordance with this subchapter [chapter] is not civilly liable for
18-23 that action unless the physician or health care facility fails to
18-24 exercise reasonable care when applying the patient's advance
18-25 directive [negligent].
18-26 (b) A health professional, acting under the direction of a
18-27 physician, who participates in withholding or withdrawing
19-1 life-sustaining procedures from a qualified patient in accordance
19-2 with this subchapter [chapter] is not civilly liable for that
19-3 action unless the health professional fails to exercise reasonable
19-4 care when applying the patient's advance directive [negligent].
19-5 (c) A physician, or a health professional acting under the
19-6 direction of a physician, who participates in withholding or
19-7 withdrawing life-sustaining procedures from a qualified patient in
19-8 accordance with this subchapter [chapter] is not criminally liable
19-9 or guilty of unprofessional conduct as a result of that action
19-10 unless the physician or health professional fails to exercise
19-11 reasonable care when applying the patient's advance directive
19-12 [negligent].
19-13 (d) The standard of care that a physician, health care
19-14 facility, or health care professional shall exercise under this
19-15 section is that degree of care that a physician, health care
19-16 facility, or health care professional, as applicable, of ordinary
19-17 prudence and skill would have exercised under the same or similar
19-18 circumstances.
19-19 Sec. 166.045 [672.016]. LIMITATION OF LIABILITY FOR FAILURE
19-20 TO EFFECTUATE DIRECTIVE. (a) A physician, health care facility,
19-21 or health care professional who has no knowledge of a directive is
19-22 not civilly or criminally liable for failing to act in accordance
19-23 with the directive.
19-24 (b) A physician, or a health professional acting under the
19-25 direction of a physician, is subject to review and disciplinary
19-26 action by the appropriate licensing board [not civilly or
19-27 criminally liable] for failing to effectuate a qualified patient's
20-1 directive in violation of this subchapter or other laws of this
20-2 state. This subsection does not limit remedies available under
20-3 other laws of this state.
20-4 (c) If an attending physician refuses to comply with a
20-5 directive or treatment decision, the physician shall make a
20-6 reasonable effort to transfer the patient to another physician.
20-7 Sec. 166.046 [672.017]. HONORING DIRECTIVE DOES NOT
20-8 CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an
20-9 offense under Section 22.08, Penal Code, by withholding or
20-10 withdrawing life-sustaining procedures from a qualified patient in
20-11 accordance with this subchapter [chapter].
20-12 Sec. 166.047 [672.018]. CRIMINAL PENALTY; PROSECUTION.
20-13 (a) A person commits an offense if the person intentionally
20-14 conceals, cancels, defaces, obliterates, or damages another
20-15 person's directive without that person's consent. An offense under
20-16 this subsection is a Class A misdemeanor.
20-17 (b) A person is subject to prosecution for criminal homicide
20-18 under Chapter 19, Penal Code, if the person, with the intent to
20-19 cause life-sustaining procedures to be withheld or withdrawn from
20-20 another person contrary to the other person's desires, falsifies or
20-21 forges a directive or intentionally conceals or withholds personal
20-22 knowledge of a revocation and thereby directly causes
20-23 life-sustaining procedures to be withheld or withdrawn from the
20-24 other person with the result that the other person's death is
20-25 hastened.
20-26 Sec. 166.048 [672.019]. PREGNANT PATIENTS. A person may not
20-27 withdraw or withhold life-sustaining procedures under this
21-1 subchapter [chapter] from a pregnant patient.
21-2 Sec. 166.049 [672.020]. MERCY KILLING NOT CONDONED. This
21-3 subchapter [chapter] does not condone, authorize, or approve mercy
21-4 killing or permit an affirmative or deliberate act or omission to
21-5 end life except to permit the natural process of dying as provided
21-6 by this subchapter [chapter].
21-7 Sec. 166.050 [672.021]. LEGAL RIGHT OR RESPONSIBILITY NOT
21-8 AFFECTED. This subchapter [chapter] does not impair or supersede
21-9 any legal right or responsibility a person may have to effect the
21-10 withholding or withdrawal of life-sustaining procedures in a lawful
21-11 manner.
21-12 SECTION 1.04. Chapter 674, Health and Safety Code, is
21-13 transferred to Subtitle H, Title 2, Health and Safety Code, is
21-14 redesignated as Subchapter C, Chapter 166, Health and Safety Code,
21-15 and is amended to read as follows:
21-16 SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL
21-17 DO-NOT-RESUSCITATE ORDERS
21-18 Sec. 166.081 [674.001]. DEFINITIONS. In this subchapter
21-19 [chapter]:
21-20 (1) ["Attending physician" means the physician who has
21-21 primary responsibility for a person's treatment and care.]
21-22 [(2) "Board" means the Texas Board of Health.]
21-23 [(3)] "Cardiopulmonary resuscitation" includes a
21-24 component of cardiopulmonary resuscitation.
21-25 (2) [(4) "Competent" means possessing the ability,
21-26 based on reasonable medical judgment, to understand and appreciate
21-27 the nature and consequences of a treatment decision, including the
22-1 significant benefits and harms of, and reasonable alternatives to,
22-2 a proposed treatment decision.]
22-3 [(5) "Declarant" means a person who has executed or
22-4 issued an out-of-hospital do-not-resuscitate order under this
22-5 chapter.]
22-6 [(6) "Department" means the Texas Department of
22-7 Health.]
22-8 [(7)] "DNR identification device" means an
22-9 identification device specified by the board under Section 166.101
22-10 [674.023] that is worn for the purpose of identifying a person who
22-11 has executed or issued an out-of-hospital DNR order or on whose
22-12 behalf an out-of-hospital DNR order has been executed or issued
22-13 under this subchapter [chapter].
22-14 (3) [(8) "Durable power of attorney for health care"
22-15 means a document delegating to an agent the authority to make
22-16 health care decisions for a person in accordance with Chapter 135,
22-17 Civil Practice and Remedies Code.]
22-18 [(9)] "Emergency medical services" has the meaning
22-19 assigned by Section 773.003.
22-20 (4) [(10)] "Emergency medical services personnel" has
22-21 the meaning assigned by Section 773.003.
22-22 (5) [(11)] "Health care professionals" means
22-23 physicians, nurses, and emergency medical services personnel and,
22-24 unless the context requires otherwise, includes hospital emergency
22-25 personnel.
22-26 (6) [(12) "Incompetent" means lacking the ability,
22-27 based on reasonable medical judgment, to understand and appreciate
23-1 the nature and consequences of a treatment decision, including the
23-2 significant benefits and harms of, and reasonable alternatives to,
23-3 a proposed treatment decision.]
23-4 [(13) "Life-sustaining procedure" means a medical
23-5 procedure, treatment, or intervention that uses mechanical or other
23-6 artificial means to sustain, restore, or supplant a spontaneous
23-7 vital function and, when applied to a person in a terminal
23-8 condition, serves only to prolong the process of dying. The term
23-9 does not include the administration of medication or the
23-10 performance of a medical procedure considered to be necessary to
23-11 provide comfort or care or to alleviate pain or the provision of
23-12 water or nutrition.]
23-13 [(14)] "Out-of-hospital DNR order":
23-14 (A) means a legally binding out-of-hospital
23-15 do-not-resuscitate order, in the form specified by the board under
23-16 Section 166.083 [674.003], prepared and signed by the attending
23-17 physician of a person [who has been diagnosed as having a terminal
23-18 condition], that documents the instructions of a person or the
23-19 person's legally authorized representative and directs health care
23-20 professionals acting in an out-of-hospital setting not to initiate
23-21 or continue the following life-sustaining procedures:
23-22 (i) cardiopulmonary resuscitation;
23-23 (ii) [endotrachacheal intubation or other
23-24 means of] advanced airway management;
23-25 (iii) artificial ventilation;
23-26 (iv) defibrillation;
23-27 (v) transcutaneous cardiac pacing; and
24-1 (vi) [the administration of cardiac
24-2 resuscitation medications; and]
24-3 [(vii)] other life-sustaining procedures
24-4 specified by the board under Section 166.101(a) [674.023(a)]; and
24-5 (B) does not include authorization to withhold
24-6 medical interventions or therapies considered necessary to provide
24-7 comfort or care or to alleviate pain or to provide water or
24-8 nutrition.
24-9 (7) [(15)] "Out-of-hospital setting" means any setting
24-10 outside of a licensed acute care hospital in which health care
24-11 professionals are called for assistance, including long-term care
24-12 facilities, in-patient hospice facilities, private homes, and
24-13 vehicles during transport.
24-14 (8) [(16) "Physician" means a physician licensed by
24-15 the Texas State Board of Medical Examiners or a properly
24-16 credentialed physician who holds a commission in the uniformed
24-17 services of the United States and who is serving on active duty in
24-18 this state.]
24-19 [(17)] "Proxy" means a person designated and
24-20 authorized by a directive executed or issued in accordance with
24-21 Subchapter B [Chapter 672] to make a treatment decision for another
24-22 person in the event the other person becomes [comatose,]
24-23 incompetent[,] or otherwise mentally or physically incapable of
24-24 communication.
24-25 (9) [(18)] "Qualified relatives" means those persons
24-26 authorized to execute or issue an out-of-hospital DNR order on
24-27 behalf of a person who is [comatose,] incompetent[,] or otherwise
25-1 mentally or physically incapable of communication under Section
25-2 166.088 [674.008].
25-3 (10) [(19)] "Statewide out-of-hospital DNR protocol"
25-4 means a set of statewide standardized procedures adopted by the
25-5 board under Section 166.101(a) [674.023] for withholding
25-6 cardiopulmonary resuscitation and certain other life-sustaining
25-7 procedures by health care professionals acting in out-of-hospital
25-8 settings.
25-9 [(20) "Terminal condition" means an incurable or
25-10 irreversible condition caused by injury, disease, or illness that
25-11 would produce death without the application of life-sustaining
25-12 procedures, according to reasonable medical judgment, and in which
25-13 the application of life-sustaining procedures serves only to
25-14 postpone the moment of the person's death.]
25-15 Sec. 166.082 [674.002]. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
25-16 TO PHYSICIANS. (a) A competent person [who has been diagnosed by
25-17 a physician as having a terminal condition] may at any time execute
25-18 a written out-of-hospital DNR order directing health care
25-19 professionals acting in an out-of-hospital setting to withhold
25-20 cardiopulmonary resuscitation and certain other life-sustaining
25-21 procedures designated by the board.
25-22 (b) The declarant must sign the out-of-hospital DNR order in
25-23 the presence of two witnesses, at least one of whom must be a
25-24 witness who qualifies under Section 166.003. The [and those]
25-25 witnesses must sign the order. The attending physician of the
25-26 declarant must sign the order and shall make the fact of the
25-27 existence of the order and the reasons for execution of the order a
26-1 part of the declarant's medical record.
26-2 (c) [A witness must have the same qualifications as those
26-3 provided by Section 672.003(c).]
26-4 [(d)] If the person is incompetent but previously executed
26-5 or issued a directive to physicians in accordance with Subchapter B
26-6 [Chapter 672], the physician may rely on the directive as the
26-7 person's instructions to issue an out-of-hospital DNR order and
26-8 shall place a copy of the directive in the person's medical record.
26-9 The physician shall sign the order in lieu of the person signing
26-10 under Subsection (b).
26-11 (d) [(e)] If the person is incompetent but previously
26-12 executed or issued a directive to physicians in accordance with
26-13 Subchapter B [Chapter 672] designating a proxy, the proxy may make
26-14 any decisions required of the designating person as to an
26-15 out-of-hospital DNR order and shall sign the order in lieu of the
26-16 person signing under Subsection (b).
26-17 (e) [(f)] If the person is now incompetent but previously
26-18 executed or issued a durable power of attorney for health care [in
26-19 accordance with Chapter 135, Civil Practice and Remedies Code,]
26-20 designating an agent, the agent may make any decisions required of
26-21 the designating person as to an out-of-hospital DNR order and shall
26-22 sign the order in lieu of the person signing under Subsection (b).
26-23 (f) [(g)] The board, on the recommendation of the
26-24 department, shall by rule adopt procedures for the disposition and
26-25 maintenance of records of an original out-of-hospital DNR order and
26-26 any copies of the order.
26-27 (g) [(h)] An out-of-hospital DNR order is effective on its
27-1 execution.
27-2 Sec. 166.083 [674.003]. FORM OF OUT-OF-HOSPITAL DNR ORDER.
27-3 (a) A written out-of-hospital DNR order shall be in the standard
27-4 form specified by board rule as recommended by the department.
27-5 (b) The standard form of an out-of-hospital DNR order
27-6 specified by the board must, at a minimum, contain the following:
27-7 (1) a distinctive single-page format that readily
27-8 identifies the document as an out-of-hospital DNR order;
27-9 (2) a title that readily identifies the document as an
27-10 out-of-hospital DNR order;
27-11 (3) the printed or typed name of the person;
27-12 (4) a statement that the physician signing the
27-13 document is the attending physician of the person[, that the
27-14 physician has diagnosed the person as having a terminal condition,]
27-15 and that the physician is directing health care professionals
27-16 acting in out-of-hospital settings not to initiate or continue
27-17 certain life-sustaining procedures on behalf of the person, and a
27-18 listing of those procedures not to be initiated or continued;
27-19 (5) a statement that the person understands that the
27-20 person may revoke the out-of-hospital DNR order at any time by
27-21 destroying the order and removing the DNR identification device, if
27-22 any, or by communicating to health care professionals at the scene
27-23 the person's desire to revoke the out-of-hospital DNR order;
27-24 (6) places for the printed names and signatures of the
27-25 witnesses and attending physician of the person and the medical
27-26 license number of the attending physician;
27-27 (7) a separate section for execution of the document
28-1 by the legal guardian of the person, the person's proxy, an agent
28-2 of the person having a durable power of attorney for health care,
28-3 or the attending physician attesting to the issuance of an
28-4 out-of-hospital DNR order by nonwritten means of communication or
28-5 acting in accordance with a previously executed or previously
28-6 issued directive to physicians under Section 166.082(c)
28-7 [674.002(d)] that includes the following:
28-8 (A) a statement that the legal guardian, the
28-9 proxy, the agent, the person by nonwritten means of communication,
28-10 or the physician directs that the listed life-sustaining procedures
28-11 should not be initiated or continued in behalf of the person; and
28-12 (B) places for the printed names and signatures
28-13 of the witnesses and, as applicable, the legal guardian, proxy,
28-14 agent, or physician;
28-15 (8) a separate section for execution of the document
28-16 by at least one [two] qualified relative [relatives] of the person
28-17 when the person does not have a legal guardian, proxy, or agent
28-18 having a durable power of attorney for health care and is
28-19 [comatose,] incompetent[,] or otherwise mentally or physically
28-20 incapable of communication, including:
28-21 (A) a statement that the relative [relatives] of
28-22 the person is [are] qualified to make a treatment decision to
28-23 withhold cardiopulmonary resuscitation and certain other
28-24 designated life-sustaining procedures under Section 166.088
28-25 [674.008] and, based on the known desires of the person or a
28-26 determination of the best interest of the person, directs [direct]
28-27 that the listed life-sustaining procedures should not be initiated
29-1 or continued in behalf of the person; and
29-2 (B) places for the printed names and signatures
29-3 of the witnesses and qualified relative [relatives] of the person;
29-4 (9) a place for entry of the date of execution of the
29-5 document;
29-6 (10) a statement that the document is in effect on the
29-7 date of its execution and remains in effect until the death of the
29-8 person or until the document is revoked;
29-9 (11) a statement that the document must accompany the
29-10 person during transport;
29-11 (12) a statement regarding the proper disposition of
29-12 the document or copies of the document, as the board determines
29-13 appropriate; and
29-14 (13) a statement at the bottom of the document, with
29-15 places for the signature of each person executing the document,
29-16 that the document has been properly completed.
29-17 (c) The board may, by rule and as recommended by the
29-18 department, modify the standard form of the out-of-hospital DNR
29-19 order described by Subsection (b) in order to accomplish the
29-20 purposes of this subchapter [chapter].
29-21 (d) A photocopy or other complete facsimile of the original
29-22 written out-of-hospital DNR order executed under this subchapter
29-23 may be used for any purpose for which the original written order
29-24 may be used under this subchapter.
29-25 Sec. 166.084 [674.004]. ISSUANCE OF OUT-OF-HOSPITAL DNR
29-26 ORDER BY NONWRITTEN COMMUNICATION. (a) A competent person who is
29-27 an adult may issue an out-of-hospital DNR order by nonwritten
30-1 communication.
30-2 (b) A declarant must issue the nonwritten out-of-hospital
30-3 DNR order in the presence of the attending physician and two
30-4 witnesses, at least one of whom must be a witness who qualifies
30-5 under Section 166.003. [The witnesses must possess the same
30-6 qualifications as those provided by Section 672.003(c).]
30-7 (c) The attending physician and witnesses shall sign the
30-8 out-of-hospital DNR order in the [that] place of the document
30-9 provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
30-10 physician shall sign the document in the place required by Section
30-11 166.083(b)(13) [674.003(b)(13)]. The physician shall make the fact
30-12 of the existence of the out-of-hospital DNR order a part of the
30-13 declarant's medical record and the witnesses shall sign that entry
30-14 in the medical record.
30-15 (d) An out-of-hospital DNR order issued in the manner
30-16 provided by this section is valid and shall be honored by
30-17 responding health care professionals as if executed in the manner
30-18 provided by Section 166.082 [674.002].
30-19 Sec. 166.085 [674.005]. EXECUTION OF OUT-OF-HOSPITAL DNR
30-20 ORDER ON BEHALF OF A MINOR. The following persons may execute an
30-21 out-of-hospital DNR order on behalf of a minor:
30-22 (1) the minor's parents;
30-23 (2) the minor's legal guardian; or
30-24 (3) the minor's managing conservator.
30-25 Sec. 166.086 [674.006]. DESIRE OF PERSON SUPERSEDES
30-26 OUT-OF-HOSPITAL DNR ORDER. The desire of a competent person,
30-27 including a competent minor, supersedes the effect of an
31-1 out-of-hospital DNR order executed or issued by or on behalf of the
31-2 person when the desire is communicated to responding health care
31-3 professionals as provided by this subchapter [chapter].
31-4 Sec. 166.087 [674.007]. PROCEDURE WHEN DECLARANT IS
31-5 INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a) This section
31-6 applies when a person 18 years of age or older has executed or
31-7 issued an out-of-hospital DNR order and subsequently becomes
31-8 [comatose,] incompetent[,] or otherwise mentally or physically
31-9 incapable of communication.
31-10 (b) If the adult person has designated a person to make a
31-11 treatment decision as authorized by Section 166.032(c)
31-12 [672.003(d)], the attending physician and the designated person
31-13 shall comply with the out-of-hospital DNR order.
31-14 (c) If the adult person has not designated a person to make
31-15 a treatment decision as authorized by Section 166.032(c)
31-16 [672.003(d)], the attending physician shall comply with the
31-17 out-of-hospital DNR order unless the physician believes that the
31-18 order does not reflect the person's present desire.
31-19 Sec. 166.088 [674.008]. PROCEDURE WHEN PERSON HAS NOT
31-20 EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
31-21 INCAPABLE OF COMMUNICATION. (a) If an adult person has not
31-22 executed or issued an out-of-hospital DNR order and is [comatose,]
31-23 incompetent[,] or otherwise mentally or physically incapable of
31-24 communication, the attending physician and the person's legal
31-25 guardian, proxy, or agent having a durable power of attorney for
31-26 health care may execute an out-of-hospital DNR order on behalf of
31-27 the person.
32-1 (b) If the person does not have a legal guardian, proxy, or
32-2 agent under a durable power of attorney for health care, the
32-3 attending physician and at least one [two] qualified relative from
32-4 a category listed by Section 166.039(b), subject to the priority
32-5 established under that subsection, [relatives] may execute an
32-6 out-of-hospital DNR order in the same manner as a treatment
32-7 decision made under Section 166.039(b) [672.009(b)].
32-8 (c) A decision to execute an out-of-hospital DNR order made
32-9 under Subsection (a) or (b) must be based on knowledge of what the
32-10 person would desire, if known.
32-11 (d) An out-of-hospital DNR order executed under Subsection
32-12 (b) must be made in the presence of at least two witnesses, at
32-13 least one of whom must be a witness who qualifies under Section
32-14 161.003 [who possess the same qualifications that are required by
32-15 Section 672.003(c)].
32-16 (e) The fact that an adult person has not executed or issued
32-17 an out-of-hospital DNR order does not create a presumption that the
32-18 person does not want a treatment decision made to withhold
32-19 cardiopulmonary resuscitation and certain other designated
32-20 life-sustaining procedures designated by the board.
32-21 (f) A person listed in Section 166.039(b) who wishes to
32-22 challenge a decision made under this section must apply for
32-23 temporary guardianship under Section 875, Texas Probate Code. The
32-24 court may waive applicable fees in that proceeding.
32-25 Sec. 166.089 [674.009]. COMPLIANCE WITH OUT-OF-HOSPITAL DNR
32-26 ORDER. (a) When responding to a call for assistance, health care
32-27 professionals shall honor an out-of-hospital DNR order in
33-1 accordance with the statewide out-of-hospital DNR protocol and,
33-2 where applicable, locally adopted out-of-hospital DNR protocols not
33-3 in conflict with the statewide protocol if:
33-4 (1) the responding health care professionals discover
33-5 an executed or issued out-of-hospital DNR order form on their
33-6 arrival at the scene; and
33-7 (2) the responding health care professionals comply
33-8 with this section.
33-9 (b) If the person is wearing a DNR identification device,
33-10 the responding health care professionals must comply with Section
33-11 166.090 [674.010].
33-12 (c) The responding health care professionals must establish
33-13 the identity of the person as the person who executed or issued the
33-14 out-of-hospital DNR order or for whom the out-of-hospital DNR order
33-15 was executed or issued.
33-16 (d) The responding health care professionals must determine
33-17 that the out-of-hospital DNR order form appears to be valid in that
33-18 it includes:
33-19 (1) written responses in the places designated on the
33-20 form for the names, signatures, and other information required of
33-21 persons executing or issuing, or witnessing the execution or
33-22 issuance of, the order;
33-23 (2) a date in the place designated on the form for the
33-24 date the order was executed or issued; and
33-25 (3) the signature of the declarant or persons
33-26 executing or issuing the order and the attending physician in the
33-27 appropriate places designated on the form for indicating that the
34-1 order form has been properly completed.
34-2 (e) If the conditions prescribed by Subsections (a) through
34-3 (d) are not determined to apply by the responding health care
34-4 professionals at the scene, the out-of-hospital DNR order may not
34-5 be honored and life-sustaining procedures otherwise required by law
34-6 or local emergency medical services protocols shall be initiated or
34-7 continued. Health care professionals acting in out-of-hospital
34-8 settings are not required to accept or interpret an out-of-hospital
34-9 DNR order that does not meet the requirements of this subchapter
34-10 [chapter].
34-11 (f) The out-of-hospital DNR order form or a copy of the
34-12 form, when available, must accompany the person during transport.
34-13 (g) A record shall be made and maintained of the
34-14 circumstances of each emergency medical services response in which
34-15 an out-of-hospital DNR order or DNR identification device is
34-16 encountered, in accordance with the statewide out-of-hospital DNR
34-17 protocol and any applicable local out-of-hospital DNR protocol not
34-18 in conflict with the statewide protocol.
34-19 (h) An out-of-hospital DNR order executed or issued and
34-20 documented or evidenced in the manner prescribed by this subchapter
34-21 [chapter] is valid and shall be honored by responding health care
34-22 professionals unless the person or persons found at the scene:
34-23 (1) identify themselves as the declarant or as the
34-24 attending physician, legal guardian, qualified relative, or agent
34-25 of the person having a durable power of attorney for health care
34-26 who executed or issued the out-of-hospital DNR order on behalf of
34-27 the person; and
35-1 (2) request that cardiopulmonary resuscitation or
35-2 certain other life-sustaining procedures designated by the board be
35-3 initiated or continued.
35-4 (i) If the policies of a health care facility preclude
35-5 compliance with the out-of-hospital DNR order of a person or an
35-6 out-of-hospital DNR order issued by an attending physician on
35-7 behalf of a person who is admitted to or a resident of the
35-8 facility, or if the facility is unwilling to accept DNR
35-9 identification devices as evidence of the existence of an
35-10 out-of-hospital DNR order, that facility shall take all reasonable
35-11 steps to notify the person or, if the person is incompetent, the
35-12 person's guardian or the person or persons having authority to make
35-13 health care treatment decisions on behalf of the person, of the
35-14 facility's policy and shall take all reasonable steps to effect the
35-15 transfer of the person to the person's home or to a facility where
35-16 the provisions of this subchapter [chapter] can be carried out.
35-17 Sec. 166.090 [674.010]. DNR IDENTIFICATION DEVICE. (a) A
35-18 person who has a valid out-of-hospital DNR order under this
35-19 subchapter [chapter] may wear a DNR identification device around
35-20 the neck or on the wrist as prescribed by board rule adopted under
35-21 Section 166.101 [674.023].
35-22 (b) The presence of a DNR identification device on the body
35-23 of a person is conclusive evidence that the person has executed or
35-24 issued a valid out-of-hospital DNR order or has a valid
35-25 out-of-hospital DNR order executed or issued on the person's
35-26 behalf. Responding health care professionals shall honor the DNR
35-27 identification device as if a valid out-of-hospital DNR order form
36-1 executed or issued by the person were found in the possession of
36-2 the person.
36-3 Sec. 166.091 [674.011]. DURATION OF OUT-OF-HOSPITAL DNR
36-4 ORDER. An out-of-hospital DNR order is effective until it is
36-5 revoked as prescribed by Section 166.092 [674.012].
36-6 Sec. 166.092 [674.012]. REVOCATION OF OUT-OF-HOSPITAL DNR
36-7 ORDER. (a) A declarant may revoke an out-of-hospital DNR order at
36-8 any time without regard to the declarant's mental state or
36-9 competency. An order may be revoked by:
36-10 (1) the declarant or someone in the declarant's
36-11 presence and at the declarant's direction destroying the order form
36-12 and removing the DNR identification device, if any;
36-13 (2) a person who identifies himself or herself as the
36-14 legal guardian, as a qualified relative, or as the agent of the
36-15 declarant having a durable power of attorney for health care who
36-16 executed the out-of-hospital DNR order or another person in the
36-17 person's presence and at the person's direction destroying the
36-18 order form and removing the DNR identification device, if any;
36-19 (3) the declarant communicating the declarant's intent
36-20 to revoke the order; or
36-21 (4) a person who identifies himself or herself as the
36-22 legal guardian, a qualified relative, or the agent of the declarant
36-23 having a durable power of attorney for health care who executed the
36-24 out-of-hospital DNR order orally stating the person's intent to
36-25 revoke the order.
36-26 (b) An oral revocation under Subsection (a)(3) or (a)(4)
36-27 takes effect only when the declarant or a person who identifies
37-1 himself or herself as the legal guardian, a qualified relative, or
37-2 the agent of the declarant having a durable power of attorney for
37-3 health care who executed the out-of-hospital DNR order communicates
37-4 the intent to revoke the order to the responding health care
37-5 professionals or the attending physician at the scene. The
37-6 responding health care professionals shall record the time, date,
37-7 and place of the revocation in accordance with the statewide
37-8 out-of-hospital DNR protocol and rules adopted by the board and any
37-9 applicable local out-of-hospital DNR protocol. The attending
37-10 physician or the physician's designee shall record in the person's
37-11 medical record the time, date, and place of the revocation and, if
37-12 different, the time, date, and place that the physician received
37-13 notice of the revocation. The attending physician or the
37-14 physician's designee shall also enter the word "VOID" on each page
37-15 of the copy of the order in the person's medical record.
37-16 (c) Except as otherwise provided by this subchapter
37-17 [chapter], a person is not civilly or criminally liable for failure
37-18 to act on a revocation made under this section unless the person
37-19 has actual knowledge of the revocation.
37-20 Sec. 166.093 [674.013]. REEXECUTION OF OUT-OF-HOSPITAL DNR
37-21 ORDER. A declarant may at any time reexecute or reissue an
37-22 out-of-hospital DNR order in accordance with the procedures
37-23 prescribed by Section 166.082 [674.002], including reexecution or
37-24 reissuance after the declarant is diagnosed as having a terminal
37-25 condition.
37-26 [Sec. 674.014. CONFLICT WITH NATURAL DEATH ACT OR DURABLE
37-27 POWER OF ATTORNEY FOR HEALTH CARE. To the extent that an
38-1 out-of-hospital DNR order conflicts with a directive or treatment
38-2 decision executed or issued under Chapter 672 or a durable power of
38-3 attorney for health care executed or issued in accordance with
38-4 Chapter 135, Civil Practice and Remedies Code, the instrument
38-5 executed later in time controls.]
38-6 [Sec. 674.015. EFFECT OF OUT-OF-HOSPITAL DNR ORDER ON
38-7 INSURANCE POLICY AND PREMIUMS. (a) The fact that a person has
38-8 executed or issued an out-of-hospital DNR order under this chapter
38-9 does not:]
38-10 [(1) restrict, inhibit, or impair in any manner the
38-11 sale, procurement, or issuance of a life insurance policy to that
38-12 person; or]
38-13 [(2) modify the terms of an existing life insurance
38-14 policy.]
38-15 [(b) Notwithstanding the terms of any life insurance policy,
38-16 the fact that cardiopulmonary resuscitation or certain other
38-17 life-sustaining procedures designated by the board are withheld
38-18 from an insured person under this chapter does not legally impair
38-19 or invalidate that person's life insurance policy and may not be a
38-20 factor for the purpose of determining the payability of benefits or
38-21 the cause of death under the life insurance policy.]
38-22 [(c) A physician, health facility, health care provider,
38-23 insurer, or health care service plan may not require a person to
38-24 execute or issue an out-of-hospital DNR order as a condition for
38-25 obtaining insurance for health care services or receiving health
38-26 care services.]
38-27 [(d) The fact that a person has executed or issued or failed
39-1 to execute or issue an out-of-hospital DNR order under this chapter
39-2 may not be considered in any way in establishing insurance
39-3 premiums.]
39-4 Sec. 166.094 [674.016]. LIMITATION ON LIABILITY FOR
39-5 WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
39-6 LIFE-SUSTAINING PROCEDURES. (a) A health care professional or
39-7 health care facility or entity that in good faith causes
39-8 cardiopulmonary resuscitation or certain other life-sustaining
39-9 procedures designated by the board to be withheld from a person in
39-10 accordance with this subchapter [chapter] is not civilly liable for
39-11 that action.
39-12 (b) A health care professional or health care facility or
39-13 entity that in good faith participates in withholding
39-14 cardiopulmonary resuscitation or certain other life-sustaining
39-15 procedures designated by the board from a person in accordance with
39-16 this subchapter [chapter] is not civilly liable for that action.
39-17 (c) A health care professional or health care facility or
39-18 entity that in good faith participates in withholding
39-19 cardiopulmonary resuscitation or certain other life-sustaining
39-20 procedures designated by the board from a person in accordance with
39-21 this subchapter [chapter] is not criminally liable or guilty of
39-22 unprofessional conduct as a result of that action.
39-23 (d) A health care professional or health care facility or
39-24 entity that in good faith causes or participates in withholding
39-25 cardiopulmonary resuscitation or certain other life-sustaining
39-26 procedures designated by the board from a person in accordance with
39-27 this subchapter [chapter] and rules adopted under this subchapter
40-1 [chapter] is not in violation of any other licensing or regulatory
40-2 laws or rules of this state and is not subject to any disciplinary
40-3 action or sanction by any licensing or regulatory agency of this
40-4 state as a result of that action.
40-5 Sec. 166.095 [674.017]. LIMITATION ON LIABILITY FOR FAILURE
40-6 TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER. (a) A health care
40-7 professional or health care facility or entity that has no actual
40-8 knowledge of an out-of-hospital DNR order is not civilly or
40-9 criminally liable for failing to act in accordance with the order.
40-10 (b) A health care professional or health care facility or
40-11 entity is subject to review and disciplinary action by the
40-12 appropriate licensing board [not civilly or criminally liable] for
40-13 failing to effectuate an out-of-hospital DNR order. This
40-14 subsection does not limit remedies available under other laws of
40-15 this state.
40-16 (c) If an attending physician refuses to execute or comply
40-17 with an out-of-hospital DNR order, the physician shall inform the
40-18 person, the legal guardian or qualified relatives of the person, or
40-19 the agent of the person having a durable power of attorney for
40-20 health care and, if the person or another authorized to act on
40-21 behalf of the person so directs, shall make a reasonable effort to
40-22 transfer the person to another physician who is willing to execute
40-23 or comply with an out-of-hospital DNR order.
40-24 Sec. 166.096 [674.018]. HONORING OUT-OF-HOSPITAL DNR ORDER
40-25 DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not
40-26 commit an offense under Section 22.08, Penal Code, by withholding
40-27 cardiopulmonary resuscitation or certain other life-sustaining
41-1 procedures designated by the board from a person in accordance with
41-2 this subchapter [chapter].
41-3 Sec. 166.097 [674.019]. CRIMINAL PENALTY; PROSECUTION.
41-4 (a) A person commits an offense if the person intentionally
41-5 conceals, cancels, defaces, obliterates, or damages another
41-6 person's out-of-hospital DNR order or DNR identification device
41-7 without that person's consent or the consent of the person or
41-8 persons authorized to execute or issue an out-of-hospital DNR order
41-9 on behalf of the person under this subchapter [chapter]. An
41-10 offense under this subsection is a Class A misdemeanor.
41-11 (b) A person is subject to prosecution for criminal homicide
41-12 under Chapter 19, Penal Code, if the person, with the intent to
41-13 cause cardiopulmonary resuscitation or certain other
41-14 life-sustaining procedures designated by the board to be withheld
41-15 from another person contrary to the other person's desires,
41-16 falsifies or forges an out-of-hospital DNR order or intentionally
41-17 conceals or withholds personal knowledge of a revocation and
41-18 thereby directly causes cardiopulmonary resuscitation and certain
41-19 other life-sustaining procedures designated by the board to be
41-20 withheld from the other person with the result that the other
41-21 person's death is hastened.
41-22 Sec. 166.098 [674.020]. PREGNANT PERSONS. A person may not
41-23 withhold cardiopulmonary resuscitation or certain other
41-24 life-sustaining procedures designated by the board under this
41-25 subchapter [chapter] from a person known by the responding health
41-26 care professionals to be pregnant.
41-27 Sec. 166.099 [674.021]. MERCY KILLING NOT CONDONED. This
42-1 subchapter [chapter] does not condone, authorize, or approve mercy
42-2 killing or permit an affirmative or deliberate act or omission to
42-3 end life except to permit the natural process of dying as provided
42-4 by this subchapter [chapter].
42-5 Sec. 166.100 [674.022]. LEGAL RIGHT OR RESPONSIBILITY NOT
42-6 AFFECTED. This subchapter [chapter] does not impair or supersede
42-7 any legal right or responsibility a person may have under a
42-8 constitution, other statute, regulation, or court decision to
42-9 effect the withholding of cardiopulmonary resuscitation or certain
42-10 other life-sustaining procedures designated by the board.
42-11 Sec. 166.101 [674.023]. DUTIES OF DEPARTMENT AND BOARD.
42-12 (a) The board shall, on the recommendation of the department,
42-13 adopt all reasonable and necessary rules to carry out the purposes
42-14 of this subchapter [chapter], including rules:
42-15 (1) adopting a statewide out-of-hospital DNR order
42-16 protocol that sets out standard procedures for the withholding of
42-17 cardiopulmonary resuscitation and certain other life-sustaining
42-18 procedures by health care professionals acting in out-of-hospital
42-19 settings;
42-20 (2) designating life-sustaining procedures that may be
42-21 included in an out-of-hospital DNR order, including all procedures
42-22 listed in Sections 166.081(6)(A)(i) through (v) [Section
42-23 674.001(14)(A)(i) through (vi)]; and
42-24 (3) governing recordkeeping in circumstances in which
42-25 an out-of-hospital DNR order or DNR identification device is
42-26 encountered by responding health care professionals.
42-27 (b) The rules adopted by the board under Subsection (a) are
43-1 not effective until approved by the Texas State Board of Medical
43-2 Examiners.
43-3 (c) Local emergency medical services authorities may adopt
43-4 local out-of-hospital DNR order protocols if the local protocols do
43-5 not conflict with the statewide out-of-hospital DNR order protocol
43-6 adopted by the board.
43-7 (d) The board by rule shall specify a distinctive standard
43-8 design for a necklace and a bracelet DNR identification device that
43-9 signifies, when worn by a person, that the possessor has executed
43-10 or issued a valid out-of-hospital DNR order under this subchapter
43-11 [chapter] or is a person for whom a valid out-of-hospital DNR order
43-12 has been executed or issued.
43-13 (e) The department shall report to the board from time to
43-14 time regarding issues identified in emergency medical services
43-15 responses in which an out-of-hospital DNR order or DNR
43-16 identification device is encountered. The report may contain
43-17 recommendations to the board for necessary modifications to the
43-18 form of the standard out-of-hospital DNR order or the designated
43-19 life-sustaining procedures listed in the standard out-of-hospital
43-20 DNR order, the statewide out-of-hospital DNR order protocol, or the
43-21 DNR identification devices.
43-22 [Sec. 674.024. RECOGNITION OF OUT-OF-HOSPITAL DNR ORDER
43-23 EXECUTED OR ISSUED IN OTHER STATE. An out-of-hospital DNR order
43-24 executed, issued, or authorized in another state or a territory or
43-25 possession of the United States in compliance with the law of that
43-26 jurisdiction is effective for purposes of this chapter.]
43-27 SECTION 1.05. Chapter 135, Civil Practice and Remedies Code,
44-1 is transferred to Subtitle H, Title 2, Health and Safety Code, is
44-2 redesignated as Subchapter D, Chapter 166, Health and Safety Code,
44-3 and is amended to read as follows:
44-4 SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR
44-5 HEALTH CARE
44-6 Sec. 166.151 [135.001]. DEFINITIONS. In this subchapter
44-7 [chapter]:
44-8 (1) "Adult" means a person 18 years of age or older or
44-9 a person under 18 years of age who has had the disabilities of
44-10 minority removed.
44-11 (2) "Agent" means an adult to whom authority to make
44-12 health care decisions is delegated under a durable power of
44-13 attorney for health care.
44-14 (3) ["Attending physician" means the physician,
44-15 selected by or assigned to a patient, who has primary
44-16 responsibility for the treatment and care of the patient.]
44-17 [(4) "Capacity to make health care decisions" means
44-18 the ability to understand and appreciate the nature and
44-19 consequences of a health care decision, including the significant
44-20 benefits and harms of and reasonable alternatives to any proposed
44-21 health care.]
44-22 [(5) "Durable power of attorney for health care" means
44-23 a document delegating to an agent the authority to make health care
44-24 decisions as provided by this chapter.]
44-25 [(6) "Health care decision" means consent, refusal to
44-26 consent, or withdrawal of consent to health care, treatment,
44-27 service, or procedure to maintain, diagnose, or treat an
45-1 individual's physical or mental condition.]
45-2 [(7)] "Health care provider" means an individual or
45-3 facility licensed, certified, or otherwise authorized to administer
45-4 health care, for profit or otherwise, in the ordinary course of
45-5 business or professional practice and includes a physician.
45-6 (4) [(8) "Physician" means:]
45-7 [(A) a physician licensed by the Texas State
45-8 Board of Medical Examiners; or]
45-9 [(B) a physician with proper credentials who
45-10 holds a commission in a branch of the armed services of the United
45-11 States and who is serving on active duty in this state.]
45-12 [(9)] "Principal" means an adult who has executed a
45-13 durable power of attorney for health care.
45-14 (5) [(10)] "Residential care provider" means an
45-15 individual or facility licensed, certified, or otherwise authorized
45-16 to operate, for profit or otherwise, a residential care home.
45-17 Sec. 166.152 [135.002]. SCOPE AND DURATION OF AUTHORITY.
45-18 (a) Subject to this subchapter [chapter] or any express limitation
45-19 on the authority of the agent contained in the durable power of
45-20 attorney for health care, the agent may make any health care
45-21 decision on the principal's behalf that the principal could make if
45-22 the principal were competent [but for the principal's lack of
45-23 capacity to make health care decisions].
45-24 (b) An agent may exercise authority only if the principal's
45-25 attending physician certifies in writing and files the
45-26 certification in the principal's medical record that, based on the
45-27 attending physician's reasonable medical judgment, the principal is
46-1 incompetent [lacks capacity to make health care decisions].
46-2 (c) Notwithstanding any other provisions of this subchapter
46-3 [chapter], treatment may not be given to or withheld from the
46-4 principal if the principal objects regardless of whether, at the
46-5 time of the objection:
46-6 (1) a durable power of attorney for health care is in
46-7 effect; or
46-8 (2) the principal is competent [has the capacity to
46-9 make health care decisions].
46-10 (d) The principal's attending physician shall make
46-11 reasonable efforts to inform the principal of any proposed
46-12 treatment or of any proposal to withdraw or withhold treatment
46-13 before implementing an agent's directive.
46-14 (e) After consultation with the attending physician and
46-15 other health care providers, the agent shall make a health care
46-16 decision:
46-17 (1) according to the agent's knowledge of the
46-18 principal's wishes, including the principal's religious and moral
46-19 beliefs; or
46-20 (2) if the agent does not know the principal's wishes,
46-21 according to the agent's assessment of the principal's best
46-22 interests.
46-23 (f) Notwithstanding any other provision of this subchapter
46-24 [chapter], an agent may not consent to:
46-25 (1) voluntary inpatient mental health services;
46-26 (2) convulsive treatment;
46-27 (3) psychosurgery;
47-1 (4) abortion; or
47-2 (5) neglect of the principal through the omission of
47-3 care primarily intended to provide for the comfort of the
47-4 principal.
47-5 (g) The power of attorney is effective indefinitely on
47-6 execution as provided by this subchapter [chapter] and delivery of
47-7 the document to the agent, unless it is revoked as provided by this
47-8 subchapter [chapter] or the principal becomes competent [regains
47-9 the capacity to make health care decisions]. If the durable power
47-10 of attorney includes an expiration date and on that date the
47-11 principal is incompetent [lacks the capacity to make health care
47-12 decisions], the power of attorney continues to be effective until
47-13 the principal becomes competent [regains the capacity to make
47-14 health care decisions] unless it is revoked as provided by this
47-15 subchapter [chapter].
47-16 Sec. 166.153 [135.003]. PERSONS WHO MAY NOT EXERCISE
47-17 AUTHORITY OF AGENT. A person may not exercise the authority of an
47-18 agent while the person serves as:
47-19 (1) the principal's health care provider;
47-20 (2) an employee of the principal's health care
47-21 provider unless the person is a relative of the principal;
47-22 (3) the principal's residential care provider; or
47-23 (4) an employee of the principal's residential care
47-24 provider unless the person is a relative of the principal.
47-25 Sec. 166.154 [135.004]. EXECUTION AND WITNESSES. (a) The
47-26 durable power of attorney for health care must be signed by the
47-27 principal in the presence of [at least] two [or more subscribing]
48-1 witnesses, at least one of whom must be a witness who qualifies
48-2 under Section 166.003. The witnesses must sign the document.
48-3 (b) [A witness may not, at the time of execution, be:]
48-4 [(1) the agent;]
48-5 [(2) the principal's health or residential care
48-6 provider or the provider's employee;]
48-7 [(3) the principal's spouse or heir;]
48-8 [(4) a person entitled to any part of the estate of
48-9 the principal on the death of the principal under a will or deed in
48-10 existence or by operation of law; or]
48-11 [(5) any other person who has any claim against the
48-12 estate of the principal.]
48-13 [(c) The witnesses shall affirm that, at the time the
48-14 durable power of attorney for health care was signed, the
48-15 principal:]
48-16 [(1) appeared to be of sound mind to make a health
48-17 care decision;]
48-18 [(2) stated in the witness's presence that the
48-19 principal was aware of the nature of the durable power of attorney
48-20 for health care and that the principal was signing the document
48-21 voluntarily and free from any duress; and]
48-22 [(3) requested that the witness serve as a witness to
48-23 the principal's execution of the document].
48-24 [(d)] If the principal is physically unable to sign, another
48-25 person may sign the durable power of attorney for health care with
48-26 the principal's name in the principal's presence and at the
48-27 principal's express direction.
49-1 Sec. 166.155 [135.005]. REVOCATION. (a) A durable power of
49-2 attorney for health care is revoked by:
49-3 (1) oral or written notification at any time by the
49-4 principal to the agent or a licensed or certified health or
49-5 residential care provider or by any other act evidencing a specific
49-6 intent to revoke the power, without regard to whether the principal
49-7 is competent or the principal's mental state[, competency, or
49-8 capacity to make health care decisions];
49-9 (2) execution by the principal of a subsequent durable
49-10 power of attorney for health care; or
49-11 (3) the divorce of the principal and spouse, if the
49-12 spouse is the principal's agent, unless the durable power of
49-13 attorney provides otherwise.
49-14 (b) A principal's licensed or certified health or
49-15 residential care provider who is informed of or provided with a
49-16 revocation of a durable power of attorney for health care shall
49-17 immediately record the revocation in the principal's medical record
49-18 and give notice of the revocation to the agent and any known health
49-19 and residential care providers currently responsible for the
49-20 principal's care.
49-21 Sec. 166.156 [135.006]. APPOINTMENT OF GUARDIAN. (a) On
49-22 motion filed in connection with a petition for appointment of a
49-23 guardian or, if a guardian has been appointed, on petition of the
49-24 guardian, a probate court shall determine whether to suspend or
49-25 revoke the authority of the agent.
49-26 (b) The court shall consider the preferences of the
49-27 principal as expressed in the durable power of attorney for health
50-1 care.
50-2 (c) During the pendency of the court's determination under
50-3 Subsection (a), the guardian has the sole authority to make any
50-4 health care decisions unless the court orders otherwise. If a
50-5 guardian has not been appointed, the agent has the authority to
50-6 make any health care decisions unless the court orders otherwise.
50-7 (d) A person, including any attending physician or health or
50-8 residential care provider, who does not have actual knowledge of
50-9 the appointment of a guardian or an order of the court granting
50-10 authority to someone other than the agent to make health care
50-11 decisions is not subject to criminal or civil liability and has not
50-12 engaged in unprofessional conduct for implementing an agent's
50-13 health care decision.
50-14 Sec. 166.157 [135.007]. DISCLOSURE OF MEDICAL INFORMATION.
50-15 Subject to any limitations in the durable power of attorney for
50-16 health care, an agent may, for the purpose of making a health care
50-17 decision:
50-18 (1) request, review, and receive any information, oral
50-19 or written, regarding the principal's physical or mental health,
50-20 including medical and hospital records;
50-21 (2) execute a release or other document required to
50-22 obtain the information; and
50-23 (3) consent to the disclosure of the information.
50-24 Sec. 166.158 [135.008]. DUTY OF HEALTH OR RESIDENTIAL CARE
50-25 PROVIDER. (a) A principal's health or residential care provider
50-26 and an employee of the provider who knows of the existence of the
50-27 principal's durable power of attorney for health care shall follow
51-1 a directive of the principal's agent to the extent it is consistent
51-2 with the desires of the principal, this subchapter [chapter], and
51-3 the durable power of attorney for health care.
51-4 (b) The attending physician does not have a duty to verify
51-5 that the agent's directive is consistent with the principal's
51-6 wishes or religious or moral beliefs.
51-7 (c) A principal's health or residential care provider who
51-8 finds it impossible to follow a directive by the agent because of a
51-9 conflict with this subchapter [chapter] or the durable power of
51-10 attorney for health care shall inform the agent as soon as is
51-11 reasonably possible. The agent may select another attending
51-12 physician.
51-13 (d) This subchapter [chapter] may not be construed to
51-14 require a health or residential care provider who is not a
51-15 physician to act in a manner contrary to a physician's order.
51-16 Sec. 166.159 [135.009]. DISCRIMINATION RELATING TO EXECUTION
51-17 OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE. A health or
51-18 residential care provider, health care service plan, insurer
51-19 issuing disability insurance, self-insured employee benefit plan,
51-20 or nonprofit hospital service plan may not:
51-21 (1) charge a person a different rate solely because
51-22 the person has executed a durable power of attorney for health
51-23 care;
51-24 (2) require a person to execute a durable power of
51-25 attorney for health care before:
51-26 (A) admitting the person to a hospital, nursing
51-27 home, or residential care home;
52-1 (B) insuring the person; or
52-2 (C) allowing the person to receive health or
52-3 residential care; or
52-4 (3) refuse health or residential care to a person
52-5 solely because the person has executed a durable power of attorney
52-6 for health care.
52-7 Sec. 166.160 [135.010]. LIMITATION ON LIABILITY. (a) An
52-8 agent is not subject to criminal or civil liability for a health
52-9 care decision if the decision is made in good faith under the terms
52-10 of the durable power of attorney for health care and the provisions
52-11 of this subchapter [chapter].
52-12 (b) An attending physician, health or residential care
52-13 provider, or a person acting as an agent for or under the
52-14 physician's or provider's control is not subject to criminal or
52-15 civil liability and has not engaged in unprofessional conduct for
52-16 an act or omission if the act or omission:
52-17 (1) is done in good faith under the terms of the
52-18 durable power of attorney for health care, the directives of the
52-19 agent, and the provisions of this subchapter [chapter]; and
52-20 (2) does not constitute a failure to exercise
52-21 reasonable [due] care in the provision of health care services.
52-22 (c) The standard of care that the attending physician,
52-23 health or residential care provider, or person acting as an agent
52-24 for or under the physician's or provider's control shall exercise
52-25 under Subsection (b) is that degree of care that an attending
52-26 physician, health or residential care provider, or person acting as
52-27 an agent for or under the physician's or providers's control, as
53-1 applicable, of ordinary prudence and skill would have exercised
53-2 under the same or similar circumstances.
53-3 (d) [(c)] An attending physician, health or residential care
53-4 provider, or person acting as an agent for or under the physician's
53-5 or provider's control has not engaged in unprofessional conduct
53-6 for:
53-7 (1) failure to act as required by the directive of an
53-8 agent or a durable power of attorney for health care if the
53-9 physician, provider, or person was not provided with a copy of the
53-10 durable power of attorney for health care or had no knowledge of a
53-11 directive; or
53-12 (2) acting as required by an agent's directive if the
53-13 durable power of attorney for health care has expired or been
53-14 revoked but the physician, provider, or person does not have
53-15 knowledge of the expiration or revocation.
53-16 Sec. 166.161 [135.011]. LIABILITY FOR HEALTH CARE COSTS.
53-17 Liability for the cost of health care provided as a result of the
53-18 agent's decision is the same as if the health care were provided as
53-19 a result of the principal's decision.
53-20 [Sec. 135.012. NATURAL DEATH ACT. To the extent that a
53-21 durable power of attorney for health care conflicts with a
53-22 directive or treatment decision executed under the Natural Death
53-23 Act (Chapter 672, Health and Safety Code), the instrument executed
53-24 later in time controls. A physician who withholds or withdraws
53-25 life-sustaining procedures from a principal with a terminal
53-26 condition as required by an agent's directive is not required to
53-27 comply with the Natural Death Act.]
54-1 [Sec. 135.013. ENFORCEABILITY OF DURABLE POWER OF ATTORNEY
54-2 EXECUTED IN ANOTHER JURISDICTION. This chapter does not limit the
54-3 enforceability of a durable power of attorney for health care or
54-4 similar instrument executed in another state or jurisdiction if the
54-5 instrument complies with the law of the state or jurisdiction.]
54-6 Sec. 166.162 [135.014]. DISCLOSURE STATEMENT. A durable
54-7 power of attorney for health care is not effective unless the
54-8 principal, before executing the durable power of attorney for
54-9 health care, signs a statement that the principal has received a
54-10 disclosure statement and has read and understood its contents.
54-11 Sec. 166.163 [135.015]. FORM OF DISCLOSURE STATEMENT. The
54-12 disclosure statement must be in substantially the following form:
54-13 INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY
54-14 FOR HEALTH CARE
54-15 THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT,
54-16 YOU SHOULD KNOW THESE IMPORTANT FACTS:
54-17 Except to the extent you state otherwise, this document gives
54-18 the person you name as your agent the authority to make any and all
54-19 health care decisions for you in accordance with your wishes,
54-20 including your religious and moral beliefs, when you are no longer
54-21 capable of making them yourself. Because "health care" means any
54-22 treatment, service, or procedure to maintain, diagnose, or treat
54-23 your physical or mental condition, your agent has the power to make
54-24 a broad range of health care decisions for you. Your agent may
54-25 consent, refuse to consent, or withdraw consent to medical
54-26 treatment and may make decisions about withdrawing or withholding
54-27 life-sustaining treatment. Your agent may not consent to voluntary
55-1 inpatient mental health services, convulsive treatment,
55-2 psychosurgery, or abortion. A physician must comply with your
55-3 agent's instructions or allow you to be transferred to another
55-4 physician.
55-5 Your agent's authority begins when your doctor certifies that
55-6 you lack the capacity to make health care decisions.
55-7 Your agent is obligated to follow your instructions when
55-8 making decisions on your behalf. Unless you state otherwise, your
55-9 agent has the same authority to make decisions about your health
55-10 care as you would have had.
55-11 It is important that you discuss this document with your
55-12 physician or other health care provider before you sign it to make
55-13 sure that you understand the nature and range of decisions that may
55-14 be made on your behalf. If you do not have a physician, you should
55-15 talk with someone else who is knowledgeable about these issues and
55-16 can answer your questions. You do not need a lawyer's assistance
55-17 to complete this document, but if there is anything in this
55-18 document that you do not understand, you should ask a lawyer to
55-19 explain it to you.
55-20 The person you appoint as agent should be someone you know
55-21 and trust. The person must be 18 years of age or older or a person
55-22 under 18 years of age who has had the disabilities of minority
55-23 removed. If you appoint your health or residential care provider
55-24 (e.g., your physician or an employee of a home health agency,
55-25 hospital, nursing home, or residential care home, other than a
55-26 relative), that person has to choose between acting as your agent
55-27 or as your health or residential care provider; the law does not
56-1 permit a person to do both at the same time.
56-2 You should inform the person you appoint that you want the
56-3 person to be your health care agent. You should discuss this
56-4 document with your agent and your physician and give each a signed
56-5 copy. You should indicate on the document itself the people and
56-6 institutions who have signed copies. Your agent is not liable for
56-7 health care decisions made in good faith on your behalf.
56-8 Even after you have signed this document, you have the right
56-9 to make health care decisions for yourself as long as you are able
56-10 to do so and treatment cannot be given to you or stopped over your
56-11 objection. You have the right to revoke the authority granted to
56-12 your agent by informing your agent or your health or residential
56-13 care provider orally or in writing or by your execution of a
56-14 subsequent durable power of attorney for health care. Unless you
56-15 state otherwise, your appointment of a spouse dissolves on divorce.
56-16 This document may not be changed or modified. If you want to
56-17 make changes in the document, you must make an entirely new one.
56-18 You may wish to designate an alternate agent in the event
56-19 that your agent is unwilling, unable, or ineligible to act as your
56-20 agent. Any alternate agent you designate has the same authority to
56-21 make health care decisions for you.
56-22 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE
56-23 PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES. THE FOLLOWING
56-24 PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
56-25 (1) the person you have designated as your agent;
56-26 (2) a person related to you by blood or marriage [your
56-27 health or residential care provider or an employee of your health
57-1 or residential care provider];
57-2 (3) a person entitled to any part of your estate after
57-3 your death under a will or codicil executed by you or by operation
57-4 of law [your spouse];
57-5 (4) your attending physician [lawful heirs or
57-6 beneficiaries named in your will or a deed]; [or]
57-7 (5) an employee of your attending physician;
57-8 (6) an employee of a health care facility in which you
57-9 are a patient if the employee is providing direct patient care to
57-10 you or is an officer, director, partner, or business office
57-11 employee of the health care facility or of any parent organization
57-12 of the health care facility; or
57-13 (7) a person who, at the time this power of attorney
57-14 is executed, has a claim against any part of your estate after your
57-15 death [creditors or persons who have a claim against you].
57-16 Sec. 166.164 [135.016]. FORM OF DURABLE POWER OF ATTORNEY.
57-17 The durable power of attorney for health care must be in
57-18 substantially the following form:
57-19 DURABLE POWER OF ATTORNEY FOR HEALTH CARE
57-20 DESIGNATION OF HEALTH CARE AGENT.
57-21 I,_______________________________(insert your name) appoint:
57-22 Name:________________________________________________________
57-23 Address:_____________________________________________________
57-24 Phone____________________________________________
57-25 as my agent to make any and all health care decisions for me,
57-26 except to the extent I state otherwise in this document. This
57-27 durable power of attorney for health care takes effect if I become
58-1 unable to make my own health care decisions and this fact is
58-2 certified in writing by my physician.
58-3 LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS
58-4 FOLLOWS:_______________________________________________________
58-5 _______________________________________________________________
58-6 DESIGNATION OF ALTERNATE AGENT.
58-7 (You are not required to designate an alternate agent but you
58-8 may do so. An alternate agent may make the same health care
58-9 decisions as the designated agent if the designated agent is unable
58-10 or unwilling to act as your agent. If the agent designated is your
58-11 spouse, the designation is automatically revoked by law if your
58-12 marriage is dissolved.)
58-13 If the person designated as my agent is unable or unwilling
58-14 to make health care decisions for me, I designate the following
58-15 persons to serve as my agent to make health care decisions for me
58-16 as authorized by this document, who serve in the following order:
58-17 A. First Alternate Agent
58-18 Name:________________________________________
58-19 Address:_____________________________________
58-20 Phone__________________________________
58-21 B. Second Alternate Agent
58-22 Name:________________________________________
58-23 Address:_____________________________________
58-24 Phone__________________________________
58-25 The original of this document is kept at:
58-26 ______________________________________________________
58-27 ______________________________________________________
59-1 ______________________________________________________
59-2 The following individuals or institutions have signed copies:
59-3 Name:_________________________________________________
59-4 Address:______________________________________________
59-5 ______________________________________________________
59-6 Name:_________________________________________________
59-7 Address:______________________________________________
59-8 ______________________________________________________
59-9 DURATION.
59-10 I understand that this power of attorney exists indefinitely
59-11 from the date I execute this document unless I establish a shorter
59-12 time or revoke the power of attorney. If I am unable to make
59-13 health care decisions for myself when this power of attorney
59-14 expires, the authority I have granted my agent continues to exist
59-15 until the time I become able to make health care decisions for
59-16 myself.
59-17 (IF APPLICABLE) This power of attorney ends on the following
59-18 date:_____
59-19 PRIOR DESIGNATIONS REVOKED.
59-20 I revoke any prior durable power of attorney for health care.
59-21 ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
59-22 I have been provided with a disclosure statement explaining
59-23 the effect of this document. I have read and understand that
59-24 information contained in the disclosure statement.
59-25 (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
59-26 I sign my name to this durable power of attorney for health
59-27 care on _____________ day of __________________(month, year) [19]
60-1 at _________________________________________________________
60-2 (City and State)
60-3 _________________________________________________________
60-4 (Signature)
60-5 _________________________________________________________
60-6 (Print Name)
60-7 STATEMENT OF FIRST WITNESS [WITNESSES].
60-8 [I declare under penalty of perjury that the principal has
60-9 identified himself or herself to me, that the principal signed or
60-10 acknowledged this durable power of attorney in my presence, that I
60-11 believe the principal to be of sound mind, that the principal has
60-12 affirmed that the principal is aware of the nature of the document
60-13 and is signing it voluntarily and free from duress, that the
60-14 principal requested that I serve as witness to the principal's
60-15 execution of this document, that] I am not the person appointed as
60-16 agent by this document.[, and that] I am not related to the
60-17 principal by blood or marriage. I would not be entitled to any
60-18 portion of the principal's estate on the principal's death. I am
60-19 not the attending physician of the principal or an employee of the
60-20 attending physician. I have no claim against any portion of the
60-21 principal's estate on the principal's death. Furthermore, I am not
60-22 an employee of a health care facility in which the principal is a
60-23 patient, I am not involved in providing direct patient care to the
60-24 principal, and I am not an officer, director, partner, or business
60-25 office employee of the health care facility or of any parent
60-26 organization of the health care facility [a provider of health or
60-27 residential care, an employee of a provider of health or
61-1 residential care, the operator of a community care facility, or an
61-2 employee of an operator of a health care facility.]
61-3 [I declare that I am not related to the principal by blood,
61-4 marriage, or adoption and that to the best of my knowledge I am not
61-5 entitled to any part of the estate of the principal on the death of
61-6 the principal under a will or by operation of law].
61-7 [Witness] Signature:____________________________________
61-8 Print Name:______________________Date:__________________
61-9 Address:________________________________________________
61-10 [Witness] Signature:____________________________________
61-11 Print Name:______________________Date:__________________
61-12 Address:________________________________________________
61-13 Sec. 166.165 [135.017]. CIVIL ACTION. (a) A person who is
61-14 a near relative of the principal or a responsible adult who is
61-15 directly interested in the principal, including a guardian, social
61-16 worker, physician, or clergyman, may bring an action in district
61-17 court to request that the durable power of attorney for health care
61-18 be revoked because the principal, at the time the durable power of
61-19 attorney for health care was signed:
61-20 (1) was not competent [of sound mind to make a health
61-21 care decision]; or
61-22 (2) was under duress, fraud, or undue influence.
61-23 (b) The action may be brought in the county of the
61-24 principal's residence or the residence of the person bringing the
61-25 action.
61-26 (c) During the pendency of the action, the authority of the
61-27 agent to make health care decisions continues in effect unless the
62-1 district court orders otherwise.
62-2 Sec. 166.166 [135.018]. OTHER RIGHTS OR RESPONSIBILITIES NOT
62-3 AFFECTED. This subchapter [chapter] does not limit or impair any
62-4 legal right or responsibility that any person, including a
62-5 physician or health or residential care provider, may have to make
62-6 or implement health care decisions on behalf of a person.
62-7 ARTICLE 2. CONFORMING AMENDMENTS
62-8 SECTION 2.01. Subsection (a), Section 313.003, Health and
62-9 Safety Code, is amended to read as follows:
62-10 (a) This chapter does not apply to:
62-11 (1) a decision to withhold or withdraw life-sustaining
62-12 treatment from qualified terminal patients under Subchapter B,
62-13 Chapter 166 [the terms of Chapter 672];
62-14 (2) a health care decision made under a durable power
62-15 of attorney for health care under Subchapter D, Chapter 166
62-16 [Chapter 135, Civil Practice and Remedies Code], or under Chapter
62-17 XII, Texas Probate Code;
62-18 (3) consent to medical treatment of minors under
62-19 Chapter 32 [35], Family Code;
62-20 (4) consent for emergency care under Chapter 773;
62-21 (5) hospital patient transfers under Chapter 241; or
62-22 (6) a patient's legal guardian who has the authority
62-23 to make a decision regarding the patient's medical treatment.
62-24 SECTION 2.02. Subchapter A, Chapter 142, Health and Safety
62-25 Code, is amended by adding Section 142.0145 to read as follows:
62-26 Sec. 142.0145. VIOLATION OF LAW RELATING TO ADVANCE
62-27 DIRECTIVES. (a) The department shall assess an administrative
63-1 penalty against a home and community support services agency that
63-2 violates Section 166.004.
63-3 (b) A penalty assessed under this section shall be $500.
63-4 (c) The penalty shall be assessed in accordance with
63-5 department rules. The rules must provide for notice and an
63-6 opportunity for a hearing.
63-7 SECTION 2.03. Subsections (a) and (c), Section 241.059,
63-8 Health and Safety Code, are amended to read as follows:
63-9 (a) The commissioner of health may assess an administrative
63-10 penalty against a hospital that violates this chapter, a rule
63-11 adopted pursuant to this chapter, a special license provision, an
63-12 order or emergency order issued by the commissioner or the
63-13 commissioner's designee, or another enforcement procedure permitted
63-14 under this chapter. The commissioner shall assess an administrative
63-15 penalty against a hospital that violates Section 166.004.
63-16 (c) The penalty may not exceed $1,000 for each violation,
63-17 except that the penalty for a violation of Section 166.004 shall be
63-18 $500. Each day of a continuing violation, other than a violation
63-19 of Section 166.004, may be considered a separate violation.
63-20 SECTION 2.04. Subchapter C, Chapter 242, Health and Safety
63-21 Code, is amended by adding Section 242.0663 to read as follows:
63-22 Sec. 242.0663. VIOLATION OF LAW RELATING TO ADVANCE
63-23 DIRECTIVES. (a) The department shall assess an administrative
63-24 penalty under this subchapter against an institution that violates
63-25 Section 166.004.
63-26 (b) Notwithstanding Sections 242.066(b) and (c), a penalty
63-27 assessed in accordance with this section shall be $500 and a
64-1 separate penalty may not be assessed for a separate day of a
64-2 continuing violation.
64-3 (c) Section 242.0665 does not apply to a penalty assessed in
64-4 accordance with this section.
64-5 SECTION 2.05. Subchapter C, Chapter 247, Health and Safety
64-6 Code, is amended by adding Section 247.0455 to read as follows:
64-7 Sec. 247.0455. VIOLATION OF LAW RELATING TO ADVANCE
64-8 DIRECTIVES. (a) The department shall assess an administrative
64-9 penalty against a personal care facility that violates Section
64-10 166.004.
64-11 (b) A penalty assessed under this section shall be $500.
64-12 (c) The penalty shall be assessed in accordance with
64-13 department rules. The rules must provide for notice and an
64-14 opportunity for a hearing.
64-15 SECTION 2.06. Subchapter C, Chapter 248, Health and Safety
64-16 Code, is amended by adding Section 248.0545 to read as follows:
64-17 Sec. 248.0545. VIOLATION OF LAW RELATING TO ADVANCE
64-18 DIRECTIVES. (a) The department shall assess an administrative
64-19 penalty against a special care facility that violates Section
64-20 166.004.
64-21 (b) A penalty assessed under this section shall be $500.
64-22 (c) The penalty shall be assessed in accordance with
64-23 department rules. The rules must provide for notice and an
64-24 opportunity for a hearing.
64-25 ARTICLE 3. TRANSITION AND EMERGENCY CLAUSE
64-26 SECTION 3.01. This Act takes effect January 1, 2000.
64-27 SECTION 3.02. The change in law made by this Act does not
65-1 affect the validity of a document executed under Chapter 672 or
65-2 674, Health and Safety Code, or Chapter 135, Civil Practice and
65-3 Remedies Code, before the effective date of this Act. A document
65-4 executed before the effective date of this Act is governed by the
65-5 law in effect on the date the document was executed, and that law
65-6 continues in effect for that purpose.
65-7 SECTION 3.03. (a) The change in law made by this Act applies
65-8 only to the punishment for an offense committed on or after the
65-9 effective date of this Act. For purposes of this section, an
65-10 offense is committed before the effective date of this Act if any
65-11 element of the offense occurs before the effective date.
65-12 (b) An offense committed before the effective date of this
65-13 Act is covered by the law in effect when the offense was committed,
65-14 and the former law is continued in effect for that purpose.
65-15 SECTION 3.04. The importance of this legislation and the
65-16 crowded condition of the calendars in both houses create an
65-17 emergency and an imperative public necessity that the
65-18 constitutional rule requiring bills to be read on three several
65-19 days in each house be suspended, and this rule is hereby suspended.