PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 506. SPECIAL CARE FACILITIES
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
The Texas Health and Human Services Commission (HHSC) adopts new §506.40, concerning Advance Directives Reporting Requirements.
New §506.40 is adopted with changes to the proposed text as published in the June 14, 2024, issue of the Texas Register (49 TexReg 4355). This rule will be republished.
BACKGROUND AND JUSTIFICATION
The adoption is necessary to implement House Bill (H.B.) 3162, 88th Legislature, Regular Session, 2023. H.B. 3162 amended Texas Health and Safety Code (HSC) Chapter 166, Subchapters B and E, and HSC Chapter 313.
HSC §166.046, as amended by H.B. 3162, in part, requires a facility's ethics or medical committee to review a physician's refusal to honor an advance directive or health care or treatment decision made by or on behalf of a patient determined to be incompetent or otherwise mentally or physically incapable of communication. Amended HSC §166.046 also requires the facility to provide a written notice to the person responsible for the patient's health care decisions that the facility's ethics or medical committee will meet at least seven days later to review the physician's refusal to honor the patient's advanced directive or health care treatment decision.
HSC §166.054, as added by H.B. 3162, requires health care facilities to report certain information to HHSC within 180 days after the health care facility provides the written notice required under HSC §166.046. New HSC §166.054 also requires HHSC to adopt rules for reporting, protecting, and aggregating this information.
COMMENTS
The 31-day comment period ended July 15, 2024.
During this period, HHSC received comments regarding the proposed rule from six commenters, including Not Dead Yet, the Texas Hospital Association (THA), the Texas Medical Association (TMA), and three individuals. THA and TMA commented jointly. A summary of comments relating to the rule and HHSC's responses follows.
Comment: An individual commenter stated they are in support of the rule and the opportunity to aggregate information surrounding refused advanced directives.
Response: HHSC acknowledges this comment.
Comment: An individual commenter requested HHSC amend HSC §166.046 to require facilities to include the reason why a physician refused to honor a patient's advance directive in addition to the notice required by HSC §166.046(b)(3)(D)(i). The commenter also noted the word "notice" is vague.
Response: HHSC does not have the authority to revise HSC §166.046. No revisions are made to §506.40 because the language is consistent with HSC §166.046.
Comment: An individual commenter noted proposed §506.40 addresses an ongoing concern about the potential for one's final wishes to be dismissed at a provider's discretion as well as potential provider burden. The commenter stated mandating a review by an ethics or medical committee eliminates the potential for a provider to make a potentially biased independent decision and restores a fair and ethical approach to a critical decision.
Response: HHSC acknowledges this comment.
Comment: Not Dead Yet requested HHSC clarify in §506.40 that an ethics or medical committee must not consider a patient's pre-existing disability or any disability that may arise from the patient's injury or disease.
Response: HHSC declines to revise §506.40 because such revisions are beyond the scope of the new reporting requirements in §506.40. Additionally, HHSC notes §133.45(c) already prohibits a hospital from discriminating based on a patient's disability.
Comment: THA and TMA requested HHSC amend §506.40(a) to closely mirror HSC §166.054. THA and TMA argue §506.40(a) as proposed may be interpreted to mean a facility must deliver the written notice about the meeting to review a physician's refusal to honor an advance directive regardless of whether the physician refused to honor an advance directive.
Response: HHSC revises §506.40(a) by replacing the words "delivers the" with "provides" and deleting the word "required" to further align §506.40(a) with HSC §166.054.
Comment: An individual commenter requested HHSC amend §506.40(a)(3) to require the Ethics or Medical Committee Reporting Form collect information about whether the patient was denied a time sensitive opportunity to enforce a previously delivered advanced directive. The commenter also shared a study about do not resuscitate orders before invasive procedures.
Response: HHSC declines to revise §506.40(a)(3) because the language is consistent with HSC §166.054.
Comment: THA and TMA suggested HHSC revise §506.40(a)(5) by splitting the paragraph into two paragraphs and adding language to clarify "if life-sustaining treatment was withheld or withdrawn from the patient at the hospital after expiration of the time period described by HSC §166.046(e), the disposition of the patient after the withholding or withdrawal of life-sustaining treatment at the hospital, as selected from the following categories."
THA and TMA also requested HHSC amend §506.40(b) to clarify "HHSC publishes on its website by April 1st of each year an aggregate report as described by HSC §166.054(c) - (d) that does not include any information included in previous aggregate reports. THA and TMA stated §506.40(b) as proposed does not account for instances in which the annual report may contain information aggregated from multiple prior years.
Response: HHSC declines to revise §506.40(a)(5) and §506.40(b) because the language as proposed is in accordance with HSC §166.054(c) - (e). HHSC notes that HHSC is required to comply with statute and has internal policies in place to ensure such compliance.
STATUTORY AUTHORITY
The new section is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; HSC §248.006, which requires HHSC to adopt rules establishing minimum standards for special care facilities; and HSC §166.054, which requires HHSC to adopt rules to establish a standard form for the requirements for reporting meetings of an ethics or medical committee meeting to review a physician's refusal to honor an advance directive of 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 incapable of communication and to protect and aggregate any information HHSC receives under this section.
§506.40.Advance Directives Reporting Requirements.
(a) Pursuant to Texas Health and Safety Code (HSC) §166.054, a facility shall complete and submit to the Texas Health and Human Services Commission (HHSC) the Ethics or Medical Committee Reporting Form, which is located on the Texas HHSC website, no later than the 180th day after the facility provides written notice under HSC §166.046(b)(1). The Ethics or Medical Committee Reporting Form collects the following information:
(1) the number of days that elapsed from the patient's admission to the facility to the date notice was provided under HSC §166.046(b)(1);
(2) whether the ethics or medical committee met to review the case under HSC §166.046 and, if the committee did meet, the number of days that elapsed from the date notice was provided under HSC §166.046(b)(1) to the date the meeting was held;
(3) whether the patient was:
(A) transferred to a physician within the same facility who was willing to comply with the patient's advance directive or a health care or treatment decision made by or on behalf of the patient;
(B) transferred to a different health care facility; or
(C) discharged from the facility to a private residence or other setting that is not a health care facility;
(4) whether the patient died while receiving life-sustaining treatment at the facility;
(5) whether life-sustaining treatment was withheld or withdrawn from the patient at the facility after expiration of the time period described by HSC §166.046(e) and, if so, the disposition of the patient after the withholding or withdrawal of life-sustaining treatment at the facility, as selected from the following categories:
(A) the patient died at the facility;
(B) the patient is currently a patient at the facility;
(C) the patient was transferred to a different health care facility; or
(D) the patient was discharged from the facility to a private residence or other setting that is not a health care facility;
(6) the age group of the patient selected from the following categories:
(A) 17 years of age or younger;
(B) 18 years of age or older and younger than 66 years of age; or
(C) 66 years of age or older;
(7) the health insurance coverage status of the patient selected from the following categories:
(A) private health insurance coverage;
(B) public health plan coverage; or
(C) uninsured;
(8) the patient's sex;
(9) the patient's race;
(10) whether the facility was notified of and able to reasonably verify any public disclosure of the contact information for the facility's personnel, physicians or health care professionals who provide care at the facility, or members of the ethics or medical committee in connection with the patient's stay at the facility; and
(11) whether the facility was notified of and able to reasonably verify any public disclosure by facility personnel of the contact information for the patient's immediate family members or the person responsible for the patient's health care decisions in connection with the patient's stay at the facility.
(b) In accordance with HSC §166.054(c)-(e), HHSC publishes on its website an aggregate report of information submitted under subsection (a) of this section in the preceding year by April 1 of each year.
(c) Pursuant to HSC §166.054(g), information collected or submitted under subsection (a) of this section:
(1) is not admissible in a civil or criminal proceeding in which a physician, health care professional acting under the direction of a physician, or health care facility is a defendant;
(2) may not be used in relation to any disciplinary action by a licensing or regulatory agency with oversight over a physician, health care professional acting under the direction of a physician, or health care facility; and
(3) is not public information or subject to disclosure under Texas Government Code Chapter 552, except as permitted by Texas Government Code §552.008.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 9, 2024.
TRD-202404807
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: November 1, 2024
Proposal publication date: June 14, 2024
For further information, please call: (512) 438-3161