Coalition of legislators tells bureaucrats to fix DNR rules

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After years of the Texas grassroots calling for change in DNR policies, the Texas Legislature enacted much needed Pro-Life reforms to Do-Not-Resuscitate (DNR) orders in August of 2017.  A crisis in Texas had arisen – in the absence of state law, some physicians were writing Do-Not-Resuscitate (DNR) orders on patients without their consent, and sometimes, without even the patient’s knowledge.  As with most legislation, a state agency is tasked by legislators to develop more detailed rules on how to actually put the law into practice.  Since the Senate Bill 11 passed last year, the Texas Health and Human Services Commission (HHSC) released their draft of department rules to implement and enforce the new Pro-Life DNR law.  The proposed rules were an appalling slap in the face to Pro-Life Texans and their Legislators who championed the crucial Legislation.  Thankfully 68 Texas Legislators have sent a letter to HHSC urging them to rewrite the rules to reflect the bill’s legislative intent of empowering vulnerable Texas patients and their families to protect themselves from forced or secret DNR orders.

Governor Greg Abbott called for reforms to DNR orders in his proclamation for the special session last summer after House leadership deployed political games in the regular session to stall and ultimately kill the DNR bill.  Senator Charles Perry (R-Lubbock) and Representative Greg Bonnen (R-Friendswood) authored and sponsored Senate Bill 11, the Patient Consent for DNR bill, during the special session.  SB 11 returned this authority over a life and death medical decision to patients, their families, or their surrogates (in most cases).  Before the Pro-Life reform, Texas Law was silent on “in-hospital” DNR orders.  The language of SB 11 ameliorated that silence in Texas law by specifically regulating the execution and revocation of DNRs, notification requirements, and the hospital’s liability for breaking the law, including criminal and administrative penalties.

Shockingly, against the backdrop of these specific provisions in the new law, HHSC proposed rules simply requiring hospitals to formulate their own rules concerning DNR orders, which completely undermines the legislative intent and overt language of SB 11.  During the Commission’s 30-day public comment period, Senator Perry and Representative Bonnen authored a letter specifying and outlining the many problems with the proposed rules.

Sixty-six other state Legislators recognized the egregious problems with the proposed rules, and then signed onto by Perry and Bonnen.  The coalition was expansive and diverse, with members from both chambers and both political parties co-authoring the letter.  This coalition mirrored the support of SB 11, which passed both chambers easily with deep bipartisan support.

The letter not only highlighted the overarching problem with the rules, that state hospitals develop their own policies, but also identified several key areas in which HHSC can improve rules.  The letter recommended that HHSC clarify the critical point of the bill that DNR orders are only valid when compliant with the decision of a patient or surrogate, unless under a very specific set of circumstances.  Moreover, the letter pointedly recognizes the need to define several dangerous and consequential terms, lest hospitals abuse and exploit the rules’ vagueness.

Additionally, the coalition of Legislators urged the Commission to amend the rules to reflect SB 11’s clear process that a physician or hospital should follow when a disagreement over a DNR arises.  The letter reads:

Since decisions surrounding DNR orders are so fundamental to the patients’ and surrogates’ autonomy and right to life, the only resolution process the Legislature thought appropriate was for medical professionals to explain the burdens and benefits of CPR if the disagreement continues, and for the medical professional or facility to make a reasonable effort to transfer the patient to a physician or facility willing to comply with the patient’s decision on the DNR order.

Currently, the proposed rules simply require hospitals to make their own policies for such situations without the direction to hospitals provided by SB 11.  However, Legislators clearly urged HHSC to ensure disagreements over DNR orders are not subject to the unprecedented, unconstitutional, and unethical 10-day process as outlined in Section 166.046, Texas Health and Safety Code.  The Legislators wrote,

The Legislature also intentionally ensured that disputes over affected DNR orders are not subject to the 10-day hospital committee review in Section 166.046, Texas Health and Safety Code.  Accordingly, the proposed rules should ensure that disputes between physicians, hospitals, and patients under S.B. 11 are not resolved by a hospital committee using the process in Section 166.046.  Allowing medical professionals or healthcare facilities to override or disregard a patient’s or surrogate’s written or oral request or revocation of a DNR order by an internal review process would contradict the legislative intent of Senate Bill 11.

Texas Right to Life agrees with this fundamental point.  Allowing physicians and hospital committees to be the final authority on decisions about DNR orders would undermine the victory that grassroots activists, Pro-Life Legislators, and Governor Abbott worked so hard to achieve last summer.

Pro-Lifers will watch carefully to ensure these recommendations shape HHSC’s new draft of the department rules.  Pro-Life Texans recognized the need to enact a strong, life-saving DNR bill.  Legislators in both parties of the Texas Legislature agreed, and demanded HHSC promulgate rules that emulate the legislative intent of SB 11.  DNR reform passed in Texas to protect the rights of vulnerable patients and we are thankful Texas Legislators have reminded bureaucrats how exactly they must follow that intent.