More on the H.B. 3520 Hearing and the Texas "Futility" Law

I left Austin on Wednesday with a lot of ideas about TADA that I did not include in either my written or oral testimony.  I hope to summarize, even if just preliminarily, many of those thoughts here.

Procedural Due Process

Representative Gonzalez seemed to think that a good way to address concerns with Section166.046 would be to improve the procedural due process protections.  I agree.  Sufficiently fair procedures would minimize the risk of error.  Admittedly, due to the limits of prognostication, errors would still be made.  But, dislike it as we may, we must be prepared to accept some level of such risk in all tribunals.

Compromise on the Length of Transfer Period

Representative Naishtat asked several witnesses about a compromise position concerning the length of the transfer period:  between ten days (in the current 166.046) and the actual transfer (in H.B. 3520).  I am not a big fan of such a compromise, because it leaves the underlying procedural due process defects in place. 

On the other hand, if the waiting period were long enough, then the risk of error would be minimized.  A significant number of patients subjected to the 166.046 process die before the end of the process.  If the ten days were extended to 30 days or beyond, even more patients would die while still receiving the disputed treatment.  Moreover, if the time were long enough, then the treating facility might be more motivated to work harder to find a transfer.  It is one thing for a hospital to wait ten days; it is quite another to wait two months.  In short, there would be far fewer patients whose life-sustaining treatment might be unilaterally withdrawn at the end of 30 or 50 days than at the end of 10 days.

Effect of TTT

Representative Naishtat asked what the experience has been in other states that have adopted “treat til transfer” (TTT) laws.  I explained it is difficult to determine the effect of a TTT requirement in Texas by looking to other states.  Only Texas gives providers an effective “green light” to refuse life-sustaining treatment that they determine inappropriate.  A TTT requirement, like that anticipated in H.B. 3520, would be a condition on how that right to refuse must be implemented.   [continued below]

In contrast, no other state gives an effective “green light” to refuse life-sustaining treatment.  They give, at best, a yellow light.  Given healthcare provider legal risk averseness, that yellow light is usually interpreted as a red light.  For example, California’s futility provision is not used even though they have no TTT requirement.  In short, a TTT requirement in any state other than Texas is irrelevant.  It would be a condition on the use of an ambiguous right that few providers use in the first place. 

What I might have made clearer was that a TTT requirement in Texas might practically made the Texas right to refuse so difficult to actually implement that it effectively negates the right.  Therefore, at the end of the day, a TTT in Section 166.046 would make the Texas statute as useless as the California, Virginia, and other statutes.  While providers in the other states have no right to refuse, under H.B. 3520 Texas providers would have a right that they could not exercise. 

Texas providers can now do something that California providers cannot.  Would making Texas providers look more like California providers be a terrible thing?  There is good reason to answer yes.  California, Washington, Wisconsin, and other state medical associations have passed resolutions basically saying that current law in those states needs to look more like the law in Texas.  The Idaho Senate even passed a bill modeled on 166.046.  On the other hand, there is no consensus within the medical profession itself – in either these states or in Texas -- over what constitutes medically inappropriate treatment or whether acceding to surrogate requests to non-recommended treatment is mandatory, desirable, permitted, or forbidden.    

I hasten to add that the inability to exercise the right to refuse under TTT is based on an empirical assumption.  There is a good bit of evidence that transfers are usually not found for patients in these cases.  On the other hand, Jerri Lynn Ward and Katherine Graham testified that, with enough time and effort, transfers are usually found.  I do not believe they have rigorous data to support that.  But it seems that they or THA/TMA or others really need to develop data on: (1) how many transfers are found relative to how many of sought, (2) what efforts were made in locating the transfer, (3) how many days it took to find such transfer, and (4) the medical (and other) reasons transfers were refused.

The Effect of TTT on Public Costs

Several Representatives were concerned with the financial impact of TTT.  Again, there is no comprehensive data on this.  (If the Legislature were to make any amendment to 166.046 this session, it should add a reporting requirement like in the ODDA and WDDA.)  But most of the patients subject to 166.046 are probably on Medicare.  So, there is no impact on state finances. 

Some may be on Medicaid.  But the financial impact is surely quite small.  Only 5% of futility disputes are intractable.  Of that 5%, some patients die (even with LSMT) and some are transferred.  In some of the remaining cases providers may be able to resolve the dispute through either surrogate selection or through 166.045.  In short, adding TTT would probably have negligible financial impact.  If Texas is really concerned with the cost of non-beneficial treatment, it should look not to the brave physicians who stand up for their patients against surrogates.  It should look to the far bigger population of physicians that foists non-beneficial care onto unwitting patients and surrogates.  (See April 2011 Dartmouth Atlas report)

The Section 166.045 Alternative

Dr. Tucker testified that H.B. 3520 “intrudes into the physician-patient relationship.”  In fact, it just undoes the preexisting intrusion that was 166.046.  If providers just want to be left alone and self-regulating, then they should espouse Section 166.045.  To a large degree the current comparative uselessness of 166.045 is providers’ own fault.  166.045 would be an effective alternative if Texas providers: (a) developed good internal processes that would secure deference from a court, (b) developed relevant CPGs, and/or (c) created intervention specific harbors like there are for informed consent.