BY Phuong D. Nguyen, Esq. and Michael Alexander, Esq., Brown & Fortunato, P.C.
During the 88th legislative session, Texas passed HB 3162 to update the state’s requirements for advance directives. The new law added granular detail to the various procedures associated with advance directives and do-not-resuscitate (“DNR”) orders, set specific timeframes for certain notices and events, and imposed new reporting requirements on health care facilities. The new law became effective as of September 1, 2023. This article highlights some of the significant changes, but healthcare facilities should review their policies and procedures to ensure alignment with the requirements of the updates.
First, HB 3162 codifies protection from civil and criminal liability for physicians and other health care professionals acting under the direction of a physician for participating in the performance of a tracheostomy or a percutaneous endoscopic gastrostomy to help effectuate a transfer in cases where the patient’s advance directive or surrogate decision-maker (i.e., the person responsible for the patient’s health care decisions) is requesting life-sustaining treatment that the attending physician has decided (and whose decision was affirmed by the ethics or medical committee) is medically inappropriate. The physician or other health care professional loses criminal liability protection when the person acts with specific malicious intent to cause the death of the patient, such conduct significantly hastened the patient’s death, and the hastening of the patient’s death is not attributable to the risks associated with the medical procedures.
In addition, physicians and other health care professionals acting under the direction of a physician are not engaged in unprofessional conduct when participating in the performance of a tracheostomy or a percutaneous endoscopic gastrostomy in the above instances, unless, again, the physician or other health care professional acted with a specific malicious intent to harm the patient. Including liability protection into statute from civil, criminal, and findings of unprofessional conduct may help ease anxiety physicians and other health care professionals may feel in carrying out a tracheostomy or a percutaneous endoscopic gastrostomy in such instances.
HB 3162 also solidified several vital deadlines, including the following:
- The surrogate decision-maker must receive written notice of the ethics or medical committee meeting at least seven calendar days before the appointment. Suppose the surrogate decision maker or facility intends to have legal counsel present at the meeting. In that case, the represented party must make a good faith effort to provide the other party with notice of its intention at least 48 hours before the meeting. The surrogate decision-maker must receive written notice of the decision reached during the session.
- If the committee affirms the decision to withdraw or withhold requested treatment, then the facility must issue a “start notice,” which is a written notice informing the surrogate decision maker that life sustaining treatment may be withheld or withdrawn 25 days after the date the notice is provided, unless a court has granted an extension. If the conditions that require a tracheostomy or a percutaneous endoscopic gastrostomy are met at the time notice of the committee’s decision is provided, the facility must issue a “delay notice,” which is a written notice informing the surrogate decision maker that the 25-day period will be delayed until the required medical procedure is performed.
- When a delay notice has been provided, the 25-day period starts after the medical procedure is performed. The patient must be provided life-sustaining treatment during the 25-day period pending transfer to another physician or facility willing to comply with the requested treatment. Once the 25-day period elapses, the patient must continue to receive treatment to manage pain and reduce suffering.
Another major update from HB 3162 requires the ethics or medical committee to consider the patient’s well-being when reviewing a physician’s refusal to honor an advance directive or health care or treatment decision made by or on behalf of a patient who is determined to be incompetent or is otherwise mentally or physically capable of communication. In conducting its review, the ethics or medical committee may not make any judgment on the patient’s quality of life. The statute further outlines certain factors the committee must consider in determining whether life-sustaining treatment requested in the patient’s advance directive or by a surrogate decision-maker is medically inappropriate.
The new law also imposes new reporting requirements on healthcare facilities. Within 180 days of providing notice to a surrogate decision maker of a committee meeting, the facility must submit a report to the state with specific details about the patient and case that was considered, including, among other things, demographic information about the patient, the number of days for certain events and the resolution (e.g., whether the patient was transferred, whether life-sustaining treatment was withheld or withdrawn after the 25-day period). In addition, healthcare facilities must also report, by April 1 of each year, aggregate information compiled from the individual cases reported during the preceding year.
With all these changes and more, health care facilities should review their policies and procedures to ensure compliance with the new requirements.