The House Committee on State Affairs met on September 6 to hear an update on the implementation of legislation, including SB 11 from the 85th Special Session – “Relating to general procedures and requirements for certain do-not-resuscitate orders; creating a criminal offense”
This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. It is not a verbatim transcript of the hearing, but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.
Opening Remarks
- Cook – Committee had difficulty in getting answers from HHSC & this raised red flags
- Cook – seemed to be a pushback by some to write rules that were outside the legislative intent, disingenuous attempt to undermine legislature; bill was effective on April 1, but there were no rules in effect & no state direction leading to uncertainty
- Cook – SB 11 was designed to provide clarity to DNR process, stakeholder comment on HHSC proposed rule was heavily divided; had hoped HHSC would reopen rule to public comment for another 30-day period
- Cook – Rule will be in place, hearing today convened to discuss legislative process & whether this should be precedent
Charge #6: Monitor the agencies and programs under the Committee’s jurisdiction and oversee the implementation of relevant legislation passed by the 85th legislature, including SB 11 85(1)-2017.
Cecile Young and Kristi Jordan, Texas Health and Human Services Commission (HHSC)
- SB 11 does not apply to out of hospital DNR, describes effect of for physicians, patients, and family
- Received comments from 185 stakeholders, including legislature; reviewed all comments
- Looked at comments, but also looked at the law; HHSC understands and never wants to go outside the bounds of the law
- Cook – why did it take so long for rules to be proposed?
- Young – described timeline of rule proposal, public comment period ended in May and rule was submitted to TX Reg in August
- Cook – why was there no consideration given to having a second public comment period, especially with such a divisive issue?
- Jordan – tried to keep rules as close to the statute as possible and not over or under interpret the statute; understand that policy is dictated by lawmakers
- Cook – referenced letter from Rep. Bonnen and Sen. Perry – did you give weight to that letter?
- Young – some of the rules were modified and some were not – 2 were accepted, 2 were not accepted and 1 was partially accepted
- Cook – speaking to 046? That was clearly outside the bill, correct?
- Jordan – yes, that was one of the reasons that we copied the statute in the rules
- Cook – that is a very troubling issue because this was an agreed to bill and it was left out, that was clearly outside the intent of the bill but had people advocating for it
- Cook – you are saying that it was not your intent to subvert legislative intent?
- Jordan – that is correct
- Cook – that gives me some comfort, but it is something very disturbing that that effort was made. Not sure how we will have agreed to bills in the future if they will be compromised in rule making
- Cook – since the rule has been finalized, is there recourse for legislators to remove their names from the letter?
- Young – we are always happy to receive letters from members of the legislature regarding this rule or any others
- Cook – believes that is very important for members to know. Do not know why an agency that has been delaying suddenly got into a hurry to finalize the rules before a scheduled state affairs hearing
- Jordan – we took time after receiving public comments to review them, and were keeping the state registers timeline in mind
- Jordan noted that the bill became effective in April
- Giddings – a member expressed that they were misled by the letter and does not actually support the letter – it was a misleading effort and they thought they were supporting the original intent of the legislation
- Cook – still interested in why there wasn’t a second round of comments after seeing how divisive the issue was?
- Jordan – the 30-day comment period ended May 21st – we evaluated all of the comments and ensured that we were sticking to what the law said in statute
- Jordan – as far as a sped-up timeline – we wanted to be sure that we were acting as expeditiously as possible
- Cook – these rules have been adopted – the process did not work very well, now we need to consider what we are going to do resolve this
- Cook – you mentioned that the comment period was May 21st – the letter was dated May 22nd, how do you square that up?
- Jordan – understand that we received the letter May 21st via email, but the clerk did not get it time stamped until the 22nd
- Jordan – are always happy to receive feedback from the legislature and the public
- Jordan – the 30-day time period is a minimum but understand that we can accept comments after that time
- Cook – noted that he is still very concerned with the subversion of legislative intent – HHSC went out of its way to stonewall questions from legislative offices to the point that the legislator had to get on the phone. HHSC is the one agency that seems to think it is ok to be unresponsive to the legislature which is unacceptable
- Young – agree that that is unacceptable
- Kuempel – the entire time that I’ve been here HHSC has been a target and this did not help with the confidence from the legislature
- Cook – after the rules were published did you receive any additional comment?
- Young – Do not believe so
- Young – will verify that and get it to the committee
- Cook – hope this type of situation never happens again
- Giddings – in hearing the concerns raised, in your opinion do the rules actually follow the intent of the original bill?
- Jordan – that is my belief – tried to be extra careful to have the rules follow the statute
Arlo Weltge, Texas Medical Association (TMA)
- Cook – You have gone through the rules; do you believe they follow legislative intent? And is there anything in the proposed rules from medical delivery that are problematic?
- There were a number of issues with the proposed rules – believe that the final rules will be closer to legislative intent
- There will still be a number of issues with the final rules
- Many attempts to contact the agency were not responded to
- This does create significant issues with end of life for practicing physicians
- Many physicians are confused
- Cook – trying to determine if legislative intent was subverted – do you think this has gone outside of what the legislative body passed?
- TMA was involved in the statute – but neutral on the final statute
- Has large amount of concerns with proposed rules
- Substantial disruptive issues with the final rules still exist
- Cook – requested TMA look at the final rules to see if there is anything that is outside the scope of the bill
- Cited there is no mention of staff in statute, but there are requirements in medical staff bylaws in the rules – this creates confusion in the industry and was not in statute
- Dual notice remains an unresolved issue – do not know when there has been a violation of the statute
- Because there is a criminal component – it jeopardizes physician’s ability to practice and to serve the needs of the patient
- Cook – do you believe this is creating a litigation threat?
- Still believe there is a real problem with meeting the legislative intent of the bill
Cesar Lopez, Texas Hospital Association
- Cook – you stood down on this bill, correct?
- THA did not support this bill
- Cook – is there anything in the rules that goes outside of the intent of the bill?
- The requirement of medical staff bass bylaws for SB 11
- The hospital governing body pass bylaws for SB 11
- Cook – can you articulate the issues with these being in the bill?
- It is one thing to ask the hospitals body to enact rules related to the bill, but to ask a hospital staff to pass bylaws is a different thing entirely and will be very difficult
- We expect many hospital staffs to not pass bylaws ands what will then happen if they do not?
- Cook – will THA need to pass legislation next session to correct issues faced because of these rules?
- That is an option
- We have done a lot of work to comply with the legislation
Closing Remarks
- Cook – believes this was poorly conducted and went outside the legislative intent
- Cook – hope the issues at the agency will be resolved because it has a dramatic effect on the state and it needs to function properly