New Rules Implementing Texas Pro-Life DNR Law Officially Adopted

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Today, the Department of State Health Services (DSHS) published the finalized version of department rules to implement and enforce the new Pro-Life law requiring physicians and medical staff to receive patient or surrogate consent before authorizing a Do-Not-Resuscitate (DNR) order.  The proposed rules, released in April, were vague, loophole-ridden, and did not reflect the legislative intent of empowering vulnerable Texas patients and their families to decide their wishes on DNR orders and prevent secret or forced DNRs.  Thankfully, the final rules adopted by DSHS today are a substantial improvement and more accurately reflect the intent of the Pro-Life legislators who championed this priority legislation last year.

After House leadership deployed political games in the regular session to stall and ultimately kill the DNR bill, Governor Greg Abbott called for reforms to DNR orders in his proclamation for the special session last summer.  Senator Charles Perry (R-Lubbock) and Representative Greg Bonnen (R-Friendswood) authored and sponsored Senate Bill 11, the Patient Consent for DNR Orders 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 was enacted, Texas Law was silent on “in-hospital” DNR orders, leading to abuses in some cases revealed by victims’ families heartbreaking testimony in committee hearings.  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.

Passing a bill is just the first step in actually enacting a policy.  The second step, required by most legislation, is legislators tasking a state agency to develop more detailed rules on how to actually put the law into practice.  However, when DSHS published the original draft of the rules, Texas Right to Life, Pro-Life activists, and many elected officials were appalled, as these proposed rules indicated the Department had no interest in actually enforcing the policy.  In addition to Texas Right to Life, more than a hundred and fifty Pro-Life Texans and sixty-eight Texas Legislators wrote to DSHS urging them to rewrite the troubling rules to reflect the bill’s legislative intent in enabling vulnerable Texas patients and their families to protect themselves from forced or secret DNR orders.  The letter from sixty-eight state legislators consisted of an expansive and diverse coalition, 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 newly-adopted rules outline exactly what internal policies and procedures hospitals must adopt and comply with regarding patients’ rights and DNR orders.  Some organizations attempted to undermine the law by urging DSHS to allow hospital ethics committees to be the final authority over DNR orders if a physician disagreed with a patient or surrogate’s choice.  Thankfully, DSHS rejected this recommendation, pointing back to the exact wording of the Pro-Life law that outlines the process hospitals must use if there is a disagreement between a medical professional and a patient or surrogate regarding a DNR order.  As the actual legislative authors of the bill have made clear during the session and in their letter to DSHS, the intent of SB 11 is to allow Texans themselves to make this decision that is “so fundamental to the patients’ and surrogates’ autonomy and right to life.”

The originally-proposed rules simply required hospitals to create their own DNR policies for such situations without the direction to hospitals provided by SB 11.  Texas Right to Life celebrates the recently-adopted language that does not permit disagreements over DNR orders to be subject to the unprecedented, unconstitutional, and unethical 10-day process that allows ethics committees to override patients’ own choices on life and death medical decisions (Section 166.046, Texas Health and Safety Code).  Such a policy would have directly contradicted the guidance provided by SB 11.  

The passage and enforcement of SB 11 is the hardest-fought Pro-Life achievement of the last two years.  DNR reform passed in Texas to protect the rights of vulnerable patients, and we are thankful to the engaged grassroots activists, Pro-Life Legislators, and Governor Abbott who all worked so hard to achieve this Pro-Life victory.

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