During an unusual hearing Thursday before an important Texas House committee, the panel’s chairman accused several colleagues of violating unwritten rules of conduct by pushing a state agency to write regulations for a new law that go beyond what the Legislature intended.
The criticism aired by state Rep. Byron Cook, R-Corsicana, chairman of the State Affairs Committee, focused on a law requiring direct patient approval for do-not-resuscitate orders in hospitals — one of Gov. Greg Abbott’s 20 priorities for the special session in the summer of 2017.
Overshadowed by other special session issues, the bill was near death before being rescued by intense behind-the-scenes negotiations, which produced a compromise that allowed its passage without opposition from abortion opponents, religious groups, hospitals, doctors and disability rights advocates.
The compromise required the bill’s leaders — Sen. Charles Perry, R-Lubbock, and Rep. Greg Bonnen, R-Friendswood — to ensure that no changes were made to Senate Bill 11 on the Senate and House floors, and they met those obligations.
The problem, Cook said during Thursday morning’s hearing at the Capitol, arose after the state Health and Human Services Commission published its proposed rules for implementing the law on April 20 — almost three weeks after the statute took effect on April 1 — kicking off a 30-day period for public comments.
Cook took strong exception to a letter Perry and Bonnen sent to the agency seeking changes to the proposed rules — changes that Cook said violated the compromise by going beyond the scope of SB 11.
Why, Cook asked, should anyone have confidence in legislative agreements if lawmakers press agencies to adopt different rules after the session?
“This is a disingenuous effort to undermine lawmakers’ efforts,” he said, adding later, “I’m really troubled by a subversion of legislative intent.”
Cook also said several of the 66 senators and representatives who signed the Perry-Bonnen letter felt they were misled about its contents and recently expressed a desire to have their names removed.
Perry declined to comment on the matter. Efforts to reach Bonnen through his legislative offices were not successful Thursday.
But a representative of Texas Right to Life, which helped the lawmakers draft the letter and submitted a largely identical letter as part of the public-comment period on SB 11’s rules, said Cook’s criticism was off base.
Texas Right to Life was among the organizations that signed the compromise agreement and promised to seek no changes to SB 11. Texas Right to Life’s legislative director, John Seago, said he did not believe his organization — or Perry and Bonnen — broke the compromise when they advocated for changes in the proposed rules for how SB 11 would be implemented.
“We disagree with this characterization of the request,” Seago said. “We wrote a letter, we helped a lot of interested members write a letter … to make sure that the rules were enforceable. This was an important bill, and a lot of important bills are lost when it comes to enforcement in the rules.”
Much of Cook’s ire focused on the letters’ discussion of hospital ethics committees, a hotly disputed topic for more than a decade at the Legislature. In Texas, if doctors believe continued treatment would inhumanely extend suffering, they can overrule a family’s wishes by asking an ethics committee for approval to halt life-sustaining care. If the committee — often made up of uninvolved doctors, social workers and clergy — agrees, treatment can be halted in 10 days.
Right to Life has worked to ban the ethics committees, and its letter and the Perry-Bonnen letter sought a rule clarifying that the ethics committees cannot be called upon to handle disputes over do-not-resuscitate orders.
Cook said the request was out of bounds because SB 11 was intentionally silent on ethics committee involvement — the only way a compromise could be reached.
But Seago said the letters were seeking clarity on whether ethics committees can be part of the process. “We’re not going outside of law,” he said. “I’m not sure what the soap box was here. This is what rules are for, to clarify ambiguity.”
Cook also used the hearing to complain directly to Cecile Erwin Young, acting executive commissioner for the Texas Health and Human Services Commission, saying her agency “went out of its way to stonewall and stall” when his office repeatedly sought more information about the rules.
“This agency has felt no need to be responsive, and that’s unacceptable,” Cook said.
Young apologized, saying any delays were unacceptable.
What the law changed on do-not-resuscitate orders
Senate Bill 11, which took effect April 1:
• Required in-hospital do-not-resuscitate orders from an attending doctor to be in writing or, if given verbally by the patient, to be witnessed by “two competent adult witnesses.”
• Required doctors to inform the patient — or legal guardian or person with medical power of attorney for those patients who are not competent to make their own choices — before placing the order in a patient’s chart.
• Stated that do-not-resuscitate orders are valid if not contrary to a competent patient’s desires and if, in the doctor’s reasonable judgment, a patient’s death is imminent and “the DNR order is medically appropriate.”
• Stated that doctors, nurses or hospital employees who intentionally conceal, cancel or falsify a do-not-resuscitate order – or conceal a patient’s revocation of such an order – can face up to one year in jail.