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New legislation affecting Texas hospitals: part 2

BY MARY M. BEARDEN AND ALLISON SHELTON, Brown & Fortunato, P.C.

This article is the second part of a two-part series that summarizes new legislation adopted during the 84th Legislative Session of the Texas Legislature. The first part of the two-part series was published in the September issue of the Medical Journal of Houston and addressed new legislation that went into effect before or on September 1, 2015. This article summarizes legislation with requirements that go into effect after September 1, 2015, including House Bills 910, 1670, 2574, and 3074, and Senate Bills 195 and 1753. Addressing issues that range from open-carry handgun signage requirements to child deaths related to prolonged heat exposure in unattended vehicles, these laws will impact the operations of health care providers.

House Bill 2574, which seeks to address the issue of child deaths related to prolonged heat exposure in unattended motor vehicles, was signed by Governor Abbott and became law on June 19, 2015. The bill adds an additional requirement to the resource pamphlet that hospitals must furnish to new mothers and fathers. Currently, hospitals are required to provide a resource pamphlet that addresses several issues, including (i) postpartum counseling and assistance; (ii) shaken baby syndrome; (iii) a list of diseases for which a child is required by state law to be immunized against; (iv) appropriate follow-up newborn screening procedures; (v) sudden infant death syndrome; and (vi) pertussis disease. House Bill 2574 requires that information regarding the dangers of heatstroke for a child left unattended in a motor vehicle be added to the resource pamphlet. By December 1, 2015, the Department of State Health Services (DSHS) is expected to issue additional guidance on the new information that should be included in pamphlets. Thereafter, hospitals will have until January 1, 2016, to incorporate the new information into their resource pamphlets.

House Bill 3074 amends the procedures in the Texas Advance Directives Act for withdrawing life-sustaining treatment that is medically inappropriate. If a patient or the patient’s representative requests lifesustaining treatment that the attending physician finds medically inappropriate, then the matter is referred to a medical or ethics committee for review. The patient or the patient’s representative is given notice of the review and an opportunity to attend the committee meeting. After the meeting, written notice of the committee’s decision and the reasons for the decision are given to the patient or the patient’s representative. If the committee finds that life-sustaining treatment is medically inappropriate, then the treatment may be withdrawn after ten days.

House Bill 3074 provides that the ten-day period does not begin to run until after the patient or the patient’s representatives receives written notice of the committee’s findings and a copy of the patient’s medical records. House Bill 3074 clarifies that artificially administered nutrition and hydration may not be withdrawn after the ten-day period unless the nutrition and hydration would “(1) hasten the patient’s death; (2) be medically contraindicated such that provision of the treatment seriously exacerbates life-threatening problems not outweighed by the benefit of the provision of the treatment; (3) result in substantial irremediable physical pain not outweighed by the benefit of the provision of the treatment; (4) be medically ineffective in prolonging life; or (5) be contrary to the patient’s or surrogate’s clearly documented desire not to receive artificially administered nutrition or hydration.” Furthermore, House Bill 3074 clarifies that the Advance Directives Act does not authorize the “withholding or withdrawing of pain management medication, medical procedures necessary to provide comfort, or any other health care provided to alleviate a patient’s pain.” The Texas Health and Human Services Commission is expected to adopt rules implementing the new provisions in the Advance Directives Act by March 1, 2016, and hospitals are expected to comply with the new procedures by April 1, 2016.

Senate Bill 1753, also known as the “Badge Bill,” supplements the requirements for identification badges that were adopted in 2013. Two years ago, the 83rd Legislature passed a law requiring certain health care professionals in hospitals to wear photo identification badges that included the professional’s name, department, and license type. This legislation was designed to allow patients to be promptly and clearly informed of the training and qualifications of their health care providers. The Badge Bill further requires that an identification badge use “plain language” to identify the professional’s license type. Twentynine titles for health care professionals are listed in the bill and should be used on the professionals’ identification badges. These titles include “physician,” “licensed vocational nurse,” “registered nurse,” “optometrist,” “therapeutic optometrist,” “perfusionist,” “respiratory care practitioner,” and “dietician.” Hospitals must comply with the new requirements for identifying the type of license by September 1, 2019.

Under House Bill 910, a person with the appropriate license may openly carry a handgun in a belt or shoulder holster on or after January 1, 2016. House Bill 910 did not change the law governing handguns in hospitals and certain other facilities. Even with the appropriate license, a person may not carry a handgun in hospitals, nursing homes, and churches. It is important to note the many types of health care facilities where a person could carry a handgun, including physician offices and urgent care centers. To restrict a person’s ability to carry a handgun in such facilities, the facilities must provide notice to individuals that handguns are not permitted on the premises. Such notice must meet the requirements outlined in Sections 30.06 and 30.07 of the Penal Code. When a property owner uses a sign to notify individuals that they cannot openly carry a handgun on the premises, the sign must be in both English and Spanish; use contrasting colors and block letters at least one inch in height; and include specific language outlined in the Penal Code. Such signs must be “displayed in a conspicuous manner clearly visible to the public at each entrance to the property.”

House Bill 1670 enables individuals to possess and remove a placenta from a hospital or birthing center for personal use. Current law does not address the practice of removing and taking home a placenta. In the past, DSHS has taken the position that a placenta must be treated as medical waste under the hospital licensing rules and that a person could not remove a placenta from a hospital without a court order. Under House Bill 1670, a woman who has given birth in a hospital or a birthing center has the right to take possession of and remove her placenta from the facility. If the woman is deceased or incapacitated, then the woman’s spouse has the right to obtain the placenta. Before removal, the woman must test negative for infectious diseases and the person taking possession of the placenta must sign a form acknowledging that he or she has received educational information on the spread of blood-borne diseases, the danger of ingesting formalin, and the proper handling of placentas. Furthermore, the person must acknowledge that the placenta is for personal use and may not be sold. Hospitals and birthing facilities are required to comply with the new requirements by January 1, 2016. Before January, DSHS is expected to develop the acknowledgment form that must be signed by an individual taking possession of a placenta.

Senate Bill 195 relates to the Prescription Drug Monitoring Program. As a result of Senate Bill 195, the Program will be administered by the Texas State Board of Pharmacy instead of the Department of Public Safety (DPS). Moreover, after September 1, 2016, physicians, pharmacies, and other providers that dispense or conduct research on controlled substances will no longer be required to obtain a Controlled Substance Registration from the DPS. Providers, however, are still required to comply with the registration requirements established by the Federal Drug Enforcement Administration.

Even though House Bills 910, 1670, 2574, and 3074, and Senate Bills 195 and 1753 do not currently apply to the operations of many health care providers, steps should be taken to ensure compliance by the effective date of the legal requirements. Most of the legal requirements will apply to health care providers in the early months of 2016. Over the course of the next few months, providers should review the new legal requirements, adopt any necessary changes to policies and procedures, and train staff affected by the new requirements.