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NEW STATE LAW GOVERNING INPATIENT DO-NOT-ATTEMPT RESUSCITATION ORDERS (SENATE BILL 11)

On April 1, 2018, a new Texas state law governing inpatient do-not-attempt-resuscitation orders takes effect. For the first time, Texas statute sets parameters for a specific physician’s medical order.

The changes are the result of Senate Bill 11, 85th Legislature, special session. Prior to SB 11, three related instruments governed end-of-life decision making for Texas patients:

  1. Directives to Physicians and Family or Surrogates (living wills).
  2. Medical Powers of Attorney.
  3. Out-of-Hospital Do-Not-Resuscitate Orders.

SB 11 adds inpatient DNAR Orders to this list. SB 11 is not intended to alter the current practice for Out-of-Hospital Do-Not-Resuscitate Orders, Directives (including oral directives) or MPOAs.

The Texas Department of State Health Services will engage in rulemaking to effect the new law.

Nonetheless, the Texas Hospital Association has developed the following summary, guidance and sample hospital policies so that hospitals are prepared to implement the law’s requirements. This summary and sample policies were developed in collaboration with clinicians, ethicists and hospital attorneys from THA member hospitals. The guidance should not be considered legal advice, and all Texas hospitals are strongly encouraged to note where the law is unclear and where hospitals might consider discussing particular implementation issues internally.

SB 11 makes no changes to current requirements for out-of-hospital (“OOH”) DNR orders, and OOH DNRs remain valid in locations such as long-term care facilities, inpatient hospice facilities, private homes, hospital outpatient or emergency departments, physicians’ offices and vehicles during transport.

SB 11 applies only to DNAR orders for patients who are receiving treatment or care in the inpatient setting of a hospital (after admission) and not the outpatient setting of the hospital (including the emergency department).

Hospitals wishing to maintain the distinction between inpatient and OOH DNR orders must be clear on the separate requirements for each.

Hospitals could consider:

  1. Implementing SB 11’s requirements throughout the facility, including areas which would otherwise fall under the OOH DNR provisions, or only in the inpatient setting. When applicable, how will the hospital maintain the distinction between in- and out-patient DNAR orders?
  2. Reviewing policies to create clear outlines for the separate requirements of inpatient and OOH DNR orders.
  3. Educating hospital staff on the distinctions between inpatient and OOH DNR orders.

SB 11 requires the patient’s attending physician to issue and date an inpatient DNAR order. SB 11 does not require completion of a specific form to issue the order. The patient’s consent for a DNAR order may be provided in writing or orally, but an orally delivered consent must be documented and placed in the patient’s medical record as soon as practicable by an attending physician.

Hospitals could consider:

  1. Creating a form for an inpatient DNAR Order issued under SB 11.
  2. Creating a form for the patient to give written consent for an inpatient DNAR Order under SB 11.
  3. Ways to ensure oral consent is documented and placed in the patient’s medical record as soon as practicable.
  4. Defining “as soon as practicable” in hospital policies.
  5. Discussing potential EHR compatibility issues in documenting and placing an inpatient DNAR order or consent in the record.

SB 11 requires an “attending physician” to issue and date an inpatient DNAR order and otherwise make decisions regarding the inpatient DNAR order (such as revocation).

Hospitals could consider:

  1. Defining “attending physician” to include any physician providing care to the patient.
  2. Defining “attending physician” so physicians and staff have a clear understanding of who qualifies to make any decisions about DNAR orders.
  3. Clarifying policies to ensure residents, fellows, etc., do not qualify as an “attending physician.”
  4. Clarifying policies to ensure an attending physician cannot delegate responsibility for DNAR orders to a physician assistant, nurse practitioner, physician extender or other health care provider.
  5. Clarifying policies on when and how the “attending physician” should be included in the DNAR process.

SB 11’s requirements governing allowable witnesses for the issuance of a competent patient’s oral consent for an inpatient DNAR order differ from those for other directives and OOH DNAR orders. THA has developed a guide to clarify the witness matrix.

Hospitals could consider:

  1. Issuing policy that clarifies the distinctions for required witnesses and lists who may serve as a witness.
  2. Determining how best to coordinate and communicate witness requirements.
  3. Discussing any potential privacy concerns over the use of witnesses unfamiliar to the patient.
  4. Requiring written consent from a patient prior to any witness’s exposure to sensitive information regarding the patient, including an oral declaration.
  5. Accepting a patient’s oral consent to witnesses and considering how to document this consent.

When a patient has no known directive or surrogate decision maker, a physician may issue a DNAR order if:

  1. The patient’s death is imminent.
  2. The order is medically appropriate.
  3. The order is not contrary to the directions of a patient who was competent at the time the patient conveyed the directions.

A DNAR order issued under these circumstances does not require witnesses.

Hospitals could consider:

  1. Defining the terms “imminent death,” “reasonable medical judgment” and “medical appropriateness” in hospital policies and defining them to allow for maximum clinical interpretation, while still maintaining appropriate standards for physicians.

When an inpatient DNAR order is issued under the above circumstances, the hospital must provide notice, as applicable:

  1. Before the DNAR order is placed in the patient’s file, the patient must be notified, or, if the patient is incompetent, the patient’s spouse, reasonably available adult children or parents must be notified.
  2. After the physician issues the DNAR order, the hospital must notify the patient’s known agent under a medical power of attorney, legal guardian, or patient’s spouse, reasonably available adult children, or parents. [These requirements apply regardless of the patient’s competency.]

When a physician, physician’s assistant or nurse providing direct care to the patient has knowledge of any of the individuals listed above, at least one person must be notified. Notification of any one individual meets SB 11’s legal requirements.

Hospitals could consider:

  1. Providing notice to more than one surrogate or family member, when applicable.
  2. Clarifying to whom and when notice is required.
  3. Specifying that, when providing notice to additional persons not otherwise required, any additional notice is provided as a courtesy and not required by law.
  4. Identifying when notice of a DNR order is necessary.
  5. Defining in policy when a patient is “incompetent.”
  6. The methods by which the hospital provides notice.
  7. The methods by which the hospital documents attempts to provide notice.
  8. Asking patients about potential individuals to whom notice might be required at the time the patient is admitted to the hospital.

Revocation of consent for an inpatient DNAR order is valid if expressed by the patient, the patient’s legal guardian or the patient’s agent designated in a medical power of attorney. No other individual has the legal ability to revoke consent for an inpatient DNAR order, including family members who are not legal guardians or agents designated in a medical power of attorney.

Once a DNAR order is issued under SB 11, the only legal remedy for a non-guardian or non-agent to contest the order is to petition a court for guardianship.

Hospitals could consider:

  1. Indicating in hospital policy that only the patient’s legal guardian or agent under a medical power of attorney has the ability to revoke the underlying consent for an inpatient DNAR order, excluding any other individual (including family members) from the revocation – and potentially also the decision-making – process.
  2. Ways to engage family members excluded from the revocation process with the hospital and treatment team, while understanding their inability to revoke consent for an inpatient DNAR.
  3. Appropriate methods for explaining to non-designated, non-guardian family members that they are unable to engage in the revocation process.
  4. Methods by which the attending physician should document the receipt of actual notice of a revocation of consent for an inpatient DNAR order.
  5. Defining reasonable efforts by which an attending physician affects a revocation of consent for an inpatient DNAR order.
  6. Documenting a patient’s prior wishes, if any, for consistency with any revocation of consent for an inpatient DNAR order by a patient’s surrogate.
  7. Determining appropriate methods for documenting a revocation of consent for an inpatient DNAR order in the patient’s medical record.

SB 11 requires anyone providing “direct care” to a patient to “promptly notify” an attending physician of revocation of consent to a DNAR order.

Hospitals could consider:

  1. Defining in policy the term “direct care.”
  2. Defining in policy the term “promptly notify.”

SB 11 does not infringe on the hospital ethics and medical committee dispute resolution process – commonly called the “046 Process” – which applies “[i]f an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient . . . .”

However, under SB 11, if an attending physician, health care facility or hospital does not wish to execute or comply with an inpatient DNAR Order or the patient’s instructions regarding CPR, the physician, facility or hospital must describe the benefits and burdens of CPR to the patient, legal guardian, qualified relatives of the patient or the patient’s agent designated in a medical power of attorney. If, after explanation, a disagreement remains, the physician, facility or hospital must make a “reasonable effort” to transfer the patient to another physician, facility or hospital willing to comply with the order or the patient’s instructions.

Hospitals could consider:

  1. Defining in policy “reasonable effort to transfer.”
  2. Discussing if medical staff determine when an attempt to transfer is “reasonable?”
  3. Determining when the hospital should attempt transfer?
  4. Determining if transfer attempts should occur prior to initiating the 046 Process?
  5. Implementing policies to dictate a course of action if the attending physician is unable to comply with an inpatient DNAR Order or the determination resulting from the 046 Process?

SB 11 limits liability for issuing an inpatient DNAR order or withholding CPR in good faith.

Hospitals could consider:

  1. Clarifying that physicians who attempt (i.e., initiate) CPR but cease after a period of time due to medical futility meet their duty to attempt CPR and are protected from liability.
  2. Determining if establishing that a good faith attempt at providing CPR has been made and deciding to discontinue CPR should be left to reasonable medical judgment.
  3. Clarifying that there should be no liability when a code is “called” due to medical futility or CPR is discontinued against the request of a surrogate due to medical inappropriateness or futility.
  4. Clarifying hospital policy that these protections apply regardless of whether the patient’s vital functions are artificially maintained or aided.

Contact:

Carrie Kroll, vice president, advocacy, quality and public health, 512/465-1043

Sharon Beasley, legal manager, legal & regulatory compliance, 512/465-1030

Cesar Lopez, J.D., associate general counsel, 512/465-1027

Webinar: Ensuring Compliance With The New Do-Not-Resuscitate Law

Sample Inpatient DNAR Policy
Sample Inpatient DNAR Policy

SB 11 Witness Requirement for Issuing Oral Consent for an Inpatient DNR
SB 11 Witness Requirement for Issuing Oral Consent for an Inpatient DNR