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TITLE 40SOCIAL SERVICES AND ASSISTANCE
PART 1DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 19NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER ERESIDENT RIGHTS
RULE §19.419Advance Directives

(a) Competent adults may issue advance directives in accordance with applicable laws. An advance directive has the meaning as defined in Texas Health and Safety Code, §166.002.

(b) A facility must maintain policies and procedures implementing the following with respect to all adult residents:

  (1) The facility must:

    (A) maintain written policies regarding the implementation of advance directives; and

    (B) include a clear and precise statement of any procedure the facility is unwilling or unable to provide or withhold in accordance with an advance directive.

  (2) The facility must:

    (A) when a resident is admitted, provide the resident or the appropriate person referenced in paragraph (8) of this subsection with a copy of:

      (i) the advance care planning educational material provided by DADS;

      (ii) the resident's rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives; and

      (iii) the facility's policies respecting the implementation of these rights, including the written policies regarding the implementation of advance directives;

    (B) within 14 days after the resident is admitted, orally review and discuss the information provided in accordance with subparagraph (A) of this paragraph and the importance of planning for end-of-life care with the resident or with the appropriate person referenced in paragraph (8) of this subsection; and

    (C) annually and when there is a significant positive change or a significant deterioration in the resident's clinical condition, provide, review, and discuss the written information regarding advance directives listed in subparagraph (A) of this paragraph with the resident or with the appropriate person referenced in paragraph (8) of this subsection.

  (3) The facility must document the oral discussion and the provision of the written information in the resident's clinical record. The facility must document in the resident's clinical record whether or not the resident has executed an advance directive.

  (4) The facility must not condition the provision of care or otherwise discriminate against a resident based on whether or not the resident has executed an advance directive.

  (5) The facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives.

  (6) The facility must provide, individually or with others, education for staff and the community on issues concerning advance directives. For the community, this may include newsletters, newspaper articles, local news reports, or commercials. For educating staff, this may include in-service programs.

  (7) The facility must provide the attending physician, emergency medical technician, and hospital personnel with any information relating to a resident's known existing advance directive and assist with coordinating physicians' orders with the resident's known existing advance directive.

  (8) Except as provided in paragraph (9) of this subsection, if a resident is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether the resident has executed an advance directive, the facility must provide, review, and discuss written information regarding advance directives, including advance care planning educational material provided by DADS and facility policies regarding the implementation of advance directives, in the following order of preference, to:

    (A) the resident's legal guardian;

    (B) a person responsible for the resident's health care decisions;

    (C) the resident's spouse;

    (D) the resident's adult child;

    (E) the resident's parents; or

    (F) the person admitting the resident.

  (9) If a resident is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether the resident has executed an advance directive, and if the facility is unable, after diligent search, to locate a person listed under paragraph (8) of this subsection, the facility is not required to provide written information regarding advance directives. The facility must document in the resident's clinical record its attempts to make a diligent search.

  (10) If a resident, who was incompetent or otherwise incapacitated and was unable to receive information regarding advance directives, including written policies regarding the implementation of advance directives, later becomes able to receive the information, the facility must provide, review, and discuss the written information at the time the resident becomes able to receive the information.

  (11) If the resident or a relative, surrogate, or other concerned or related person presents the facility with a copy of the resident's advance directive, the facility must comply with the advance directive, including recognition of a Medical Power of Attorney, to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the resident is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must document in the resident's clinical record that the resident was not able to receive information and was unable to communicate whether an advance directive existed.

(c) Failure to provide the facility's written policies as required in subsection (b)(2)(A)(iii) of this section when a resident is admitted will result in an administrative penalty of $500.

(d) A facility that provides services to children must ensure that:

  (1) prior to admission to the facility, the primary physician, who has been providing care to the child, has discussed advance directives with the family or guardian and has provided documentation of this discussion to the facility; and

  (2) the decision made by the family or guardian regarding advance directives is addressed in the comprehensive care plan (see §19.802 of this title (relating to Comprehensive Care Plans)).


Source Note: The provisions of this §19.419 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective August 1, 2000, 25 TexReg 6779; amended to be effective April 1, 2007, 32 TexReg 1582

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