86th LegislatureHealthcareState HouseState Senate10-Day Rule Remains Unchanged Despite Carolyn Jones’ Harrowing Story

As part of the floor debate on SB 2089 and in an effort to advance the legislation, Sen. Hughes offered an amendment to his own bill that extended the 10-Day Rule in the Texas Advance Directives Act (TADA) to 45 days instead of eliminating the provision outright.

And the amendment would have done so until the adoption of an additional amendment apparently wound up gutting the entire bill in favor of different language.

The 10-day provision within TADA is designed to be a conflict resolution mechanism over end-of-life issues. It currently states that should a doctor deem treatment “futile” for a patient,  an ethics committee (all of whom are hospital employees) has the ability to review the case and concur with that physician. Should the hospital administrators concur with the physician’s assessment, they can give a patient’s family or advocates written notice that in 10 days treatment will cease.

After a 2015 reform, the hospital is no longer allowed to withhold hydration and nutrition as part of implementing the 10-Day Rule.

Sen. Hughes and Sen. Eddie Lucio Jr. (D-Brownsville) both added amendments (Amendment #1 and Amendment #2) to SB 2089 while debating the issue on the Senate floor, however, Lucio’s amendment stated at the beginning, “by striking all below the enacting clause and substituting the following…”

The amendment added language from a different bill Lucio previously authored (SB 2035), but the effect of the amendment’s adoption essentially overrode the 45-day change that Sen. Hughes had pushed. It’s unclear whether this was a clerical mistake or intentional. 

The Texan contacted Sen. Lucio’s office for comment, but did not receive a response.

After Hughes explained his amendment, Sen. Royce West (D-Dallas) said, “This bill should have all thirty-one of us on it.”

The Senate did unanimously vote to add Lucio’s amendment to SB 2089. Whether or not all the senators realized the effects of this amendment is also unclear.

Regardless, the bill never made it out of the Calendars Committee chaired by Rep. Four Price (R-Amarillo). Time constraints regarding end of session deadlines, the language changes to SB 2089, and opposition from groups like the Texas Medical Association (TMA), Texas Alliance for Life (TAL), and Texas Conference of Catholic Bishops (TCCB) all likely played a role in putting an end to reform efforts.

The Texan spoke with Joe Pojman, TAL’s executive director, who clarified that they and their coalition partners supported the bill as passed with the language from Lucio’s amendment.

Pojman stated they did not support Hughes’s amendment because his organization and other stakeholders were not consulted about the 10-Day Rule change beforehand.

Kina Jones contacted the Texan to share her dismay at the news that SB 2089 did not survive the legislative process with an extension to the 10-Day Rule.

Kina is the daughter of Carolyn Jones, who had the 10 Day Rule enacted on her by Memorial Hermann Southwest Hospital even though the family and family attorney stated she was recovering. Three other facilities were willing to accept Carolyn, but the 10-Day Rule served as a near-impossible time constraint for the family, who was scrambling to navigate the government bureaucracy in Medicaid to help cover the cost of the transfer.

Jones said, “This is just saddening. Now we have to wait two more years, meaning the sickly are still prey.”

Below is an audio clip from our conversation Tuesday.

The Texas Medical Association provides a published interview with a doctor on their website discussing TADA and the 10-Day Rule. Dr. Stuart Pickell, an internal medicine physician who sat on two ethics committees, defended the 10-day provision in the Texas Advance Directives Act on behalf of the TMA.

Pickell said, “If the patient’s treatment wasn’t futile, physicians and families should have no difficulty finding somebody to take over.”

However, this was clearly not the case with Carolyn Jones.

Thanks to the family attorney and pro-life advocacy group Texas Right to Life, the family transferred Carolyn Jones via a private ambulance against the hospital’s wishes.

Memorial Hermann Southwest had cut Carolyn Jones’ ventilator on a Monday, and when she survived overnight, they did not administer regularly scheduled dialysis the next day.

Kina reported her thanks and gratitude to Texans and organizations like Texas Right to Life that have been in her corner. She told The Texan that her mother still has a trach-collar, but is receiving care at a wonderful new facility and continues to show signs of recovery as the family looks for ways to help pay for Carolyn’s treatment.

But not every patient has engaged advocates in their corner and media attention.

Kim Schwartz with Texas Right to Life blistered the failure of SB 2089’s passage this session.

“The House Calendars Committee is a political committee…This session, dozens of Texans who have personally seen their loved ones victimized by this draconian law came to the Capitol to urge the legislature to act. Hopefully, next session those on the House Calendars committee will listen.”

The House Calendar’s Committee is an 11-person body made up of six Republicans and five Democrats. They routinely voice vote approval for determining which bills make the calendar and which do not.

Two days before SB 2089 was sent to the Calendars committee, Texas Alliance for Life posted a legislative alert asking their supporters to urge Speaker Dennis Bonnen (R-Angleton) to oppose SB 2089.

In regards to the Jones family and those found in similar situations, Pojman said, “We empathize with families involved with end of life decision making on behalf of their loved ones.”

Addressing SB 2089 and the TADA, he continued, “We strongly support the dispute resolution process in Texas law regarding end of life treatment. That process strikes a careful balance between the autonomy of the patients and the medical and ethical judgments of physicians regarding the appropriateness of medical interventions at the end of life.”

Brent Annear, director of media relations with the Texas Medical Association responded to our inquiry. He referred us to an April 30, 2019 letter from Texas Alliance for Life, Texas Medical Association, Texas Conference of Catholic Bishops, and four other organizations which stated their opposition.

It said, “SB 2089 would undermine patient decision-making autonomy at the end of life and compel health care professionals to provide ineffective and potentially harmful medical interventions indefinitely.”

When asked what she would say to those who opposed SB 2089, even with a potential compromise of 45 days instead of 10 days, Kina Jones said, “It’s unbelievable…the money gained is more important than a human life? I hate that the state that I live in has come to this.”

Sen. Hughes said in response to the failure of SB 2089 to become law, “By a wide bipartisan margin, the Senate voted to change this terrible ten-day law and to help patients and their families.”

Hughes continued, “Due to the time limits of the legislative session, the reform bill didn’t make it all the way through the process. But this vote sends a clear message that the rights of patients and families must be honored, and we expect to pass strong protections when the Legislature comes back into session.”

And in a statement released yesterday about the overall performance of the 2019 Texas Legislature and pro-life bills, Texas Right to Life said, “House leadership sided with the medical lobby rather than vulnerable patients, killing Senate Bill 2089. The Texas House passed ceremonial, feel-good, and optics-only bills in regard to Life. These bills serve re-election campaigns more than they serve the Pro-Life movement.”

With eighteen months before the start of the next session, it remains to be seen just how many more Texans will face the ramifications of the 10-Day Rule before legislators get another opportunity to review the law.