Understanding House Bill 3162: Changes to Texas Advance Directives Act

House Bill 3162 was passed by the Eighty-eighth Texas Legislature to amend the Texas Advance Directives Act (TADA) and became effective on September 1, 2023. The Tinslee Lewis Case directly led to significant calls for revision to the TADA, the legislation at the center of the legal battle. The Lewis family’s fight to keep their child Tinslee on life-sustaining treatment against the medical judgment of her attending physicians led to lawmakers and pro-life groups to challenge the fundamental concept behind “medical futility,” the idea that treatment will not likely improve the quality of life of a patient and therefore should be discouraged. Controversy over the merit of medical futility and the definition of life-sustaining treatment itself is not new, as evidenced by the legislative fight surrounding the initial passing of the TADA and the arguments brought up in nearly every legislative session since. The codification of H.B. 3162, however, highlighted a shift towards what many patient advocates deem is a more “pro-patient and pro-family” approach towards patient directives. The law is universally recognized as an increase in the protections of patient autonomy and rights.

Representative Stephanie Klick (R) of Fort Worth introduced H.B. 3162 and organized more than a dozen meetings with a variety of stakeholders to adjust the wording and amendments to the law. H.B. 3162 was resoundingly passed by both chambers of the state legislature and signed into law by Governor Greg Abbott.

Some of the most notable elements of TADA that were amended included increasing the required notice period that hospitals must give to patients’ families prior to ending care, changing the procedure of an ethics committee meeting and the reporting requirements of health care facilities as well as the rules surrounding do-not-resuscitate (DNR) orders, and updating the information statements provided to patients.

Under the earlier iteration of the law, patients were entitled to ten days of life-sustaining treatment following an ethics committee’s affirmation of a physician’s decision to end such treatment. After this ten-day period, the attending physician and other health care providers involved in the treatment were no longer obligated to provide life-sustaining care. H.B. 3162 increased this period to twenty-five days and required physicians to perform medical procedures on patients that would aid in facilitating them to a different health care facility with the ability to follow the patient’s advance directive. This provision has stringent requirements regarding the attending physician’s judgment and training and the necessity and safety of the procedure (stated as “only a tracheostomy or a percutaneous endoscopic gastrostomy” in the law) in aiding a patient’s transfer.

Another area in which H.B. 3162 significantly amended the original TADA was in the procedure governing an ethics committee meeting. These meetings, prompted by an attending physician’s decision to end life-sustaining treatment in conflict with a patient’s advance directive, were a major point of contention in the original 1997 draft of TADA. Major changes provided in H.B. 3162 included the extension of the notice period that patients must receive prior to the convening of an ethics committee meeting from forty-eight hours to seven days. The committee was also obligated to inform patients and their representatives about logistical details, contact information, and factors under consideration at the upcoming meeting. Any pre-existing disability of the patient could not be considered along with judgment on the patient’s quality of life when determining the medical appropriateness of the life-sustaining treatment in question. The rights of patient representatives were also expanded regarding access to the patient’s medical records for their stay at the facility. At the ethics committee meeting, the representative could be accompanied by four other individuals, including legal counsel, a physician, a health care professional, or a patient advocate. Additionally, the patient’s spouse, parents, and adult children are also entitled to attend the meeting. The patient’s representative is entitled to reply to information presented during the meeting and question if relevant laws are being appropriately followed.  

As part of a push towards greater transparency in disputes surrounding life-sustaining treatment, H.B. 3162 includes stringent reporting requirements. Health care facilities must now submit reports to the Health and Human Services Commission (HHSC) whenever a case arises in which there is disagreement on the appropriateness of life-sustaining treatment. This report is due to the HHSC no later than 180 days after the written notice of an upcoming ethics committee meeting is provided to patients. The information required in the report includes a timeline of the case, the status of the patient, patient demographics, and any incidents of public disclosure of private information that may have occurred.

H.B. 3162 made significant changes to the issuing, revocation, and physician obligations related to DNR orders. The legislation maintained and expanded provisions in which a physician can issue a DNR order. The law now allows for physicians to order a DNR if they determine that such an order is medically appropriate and believe that the patient’s death is imminent (within minutes to hours), regardless of any resuscitation efforts taken. Furthermore, if the attending physician, the patient’s representative, and an alternate physician (not involved in the patient’s treatment or on the ethics committee) determine that a DNR order is appropriate and warranted, there is a ground for issuance. Alternatively, a DNR order can be revoked if either the patient or the patient’s representative rescinds their consent for a DNR. Likewise, if death is no longer imminent (as determined by the attending physician), the DNR order is no longer valid.

H.B. 3162 emphasized and strengthened obligations of providers regarding disclosing the existence of a DNR order. Penalties and legal consequences for failure to abide by the DNR order regulations were also enhanced. H.B. 3162 heightened the obligations of physicians and facilities in transferring patients if they do not wish to execute or follow a DNR order. The TADA originally just required the patient to be informed about the benefits and possible consequences of cardiopulmonary resuscitation (CPR) and a “reasonable effort” to be made to transfer the patient. Under H.B. 3162, these transfer efforts must be thoroughly documented and reported to the HHSC and should show that the original facility inquired about alternate health care facilities and performed medical procedures that would increase the likelihood of a patient being accepted in another facility.

Once the ethics committee has come to a final decision, patients are now entitled to an explanation in greater detail than before. This written notice must include medical information relevant to the patient’s condition and the decision reached by the committee, a written statement affirming that the committee is in compliance with the requirements of H.B. 3162 and other relevant legislation, and a list of health care facilities that were contacted for transfer prior to the convening of the ethics committee. If applicable, the reasons for denial from each facility must be provided.

Through its limitations on the ethics committee, as well as the expansion of patient protections and rights, H.B. 3162 serves to increase transparency and patient involvement in the end-of-life decision-making process. Although such groups as Texas Right to Life, strongly supported the changes made to the TADA, the legal fight over life-sustaining treatment is far from over. Ambiguity persists over certain language used in the bill and continues to be a point of disagreement for advocacy groups and health care providers. John Seago, president of Texas Right to Life and former legislative director for the organization, has overseen several legislations related to the rights and protections of vulnerable patient populations. Seago expressed satisfaction with the passage of H.B. 3162, but noted that he and other supporters were also “talking about other good changes to make the process more pro-patient and pro-family,” including repealing the TADA altogether. H.B. 3162 represents a major marker in the timeline of the Texas medical legislation, but the debate surrounding life-sustaining treatment continues.