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AN ACT
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relating to digital or electronic signatures and witness signatures |
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on advance directives. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 166.002, Health and Safety Code, is |
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amended by adding Subdivisions (5-a) and (5-b) to read as follows: |
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(5-a) "Digital signature" means an electronic |
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identifier intended by the person using it to have the same force |
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and effect as the use of a manual signature. |
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(5-b) "Electronic signature" means a facsimile, scan, |
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uploaded image, computer-generated image, or other electronic |
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representation of a manual signature that is intended by the person |
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using it to have the same force and effect of law as a manual |
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signature. |
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SECTION 2. Subchapter A, Chapter 166, Health and Safety |
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Code, is amended by adding Section 166.011 to read as follows: |
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Sec. 166.011. DIGITAL OR ELECTRONIC SIGNATURE. (a) For an |
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advance directive in which a signature by a declarant, witness, or |
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notary public is required or used, the declarant, witness, or |
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notary public may sign the directive or a written revocation of the |
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directive using: |
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(1) a digital signature that: |
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(A) uses an algorithm approved by the department; |
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(B) is unique to the person using it; |
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(C) is capable of verification; |
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(D) is under the sole control of the person using |
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it; |
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(E) is linked to data in a manner that |
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invalidates the digital signature if the data is changed; |
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(F) persists with the document and not by |
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association in separate files; and |
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(G) is bound to a digital certificate; or |
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(2) an electronic signature that: |
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(A) is capable of verification; |
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(B) is under the sole control of the person using |
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it; |
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(C) is linked to data in a manner that |
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invalidates the electronic signature if the data is changed; and |
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(D) persists with the document and not by |
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association in separate files. |
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(b) In approving an algorithm for purposes of Subsection |
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(a)(1)(A), the department may consider an algorithm approved by the |
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National Institute of Standards and Technology. |
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(c) The executive commissioner of the Health and Human |
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Services Commission by rule shall modify the advance directive |
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forms required under this chapter as necessary to provide for the |
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use of a digital or electronic signature that complies with the |
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requirements of this section. |
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SECTION 3. Section 166.032, Health and Safety Code, is |
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amended by amending Subsection (b) and adding Subsection (b-1) to |
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read as follows: |
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(b) Except as provided by Subsection (b-1), the [The] |
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declarant must sign the directive in the presence of two witnesses |
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who qualify under Section 166.003, at least one of whom must be a |
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witness who qualifies under Section 166.003(2). The witnesses must |
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sign the directive. |
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(b-1) The declarant, in lieu of signing in the presence of |
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witnesses, may sign the directive and have the signature |
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acknowledged before a notary public. |
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SECTION 4. Section 166.036(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) Except as provided by Section 166.032(b-1), a [A] |
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written directive executed under Section 166.033 or 166.035 is |
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effective without regard to whether the document has been |
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notarized. |
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SECTION 5. Sections 166.082(b) and (c), Health and Safety |
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Code, are amended to read as follows: |
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(b) Except as provided by this subsection, the [The] |
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declarant must sign the out-of-hospital DNR order in the presence |
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of two witnesses who qualify under Section 166.003, at least one of |
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whom must be a witness who qualifies under Section 166.003(2). The |
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witnesses must sign the order. The attending physician of the |
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declarant must sign the order and shall make the fact of the |
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existence of the order and the reasons for execution of the order a |
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part of the declarant's medical record. The declarant, in lieu of |
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signing in the presence of witnesses, may sign the out-of-hospital |
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DNR order and have the signature acknowledged before a notary |
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public. |
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(c) If the person is incompetent but previously executed or |
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issued a directive to physicians in accordance with Subchapter B, |
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the physician may rely on the directive as the person's |
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instructions to issue an out-of-hospital DNR order and shall place |
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a copy of the directive in the person's medical record. The |
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physician shall sign the order in lieu of the person signing under |
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Subsection (b) and may use a digital or electronic signature |
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authorized under Section 166.011. |
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SECTION 6. Section 166.083(b), Health and Safety Code, is |
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amended to read as follows: |
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(b) The standard form of an out-of-hospital DNR order |
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specified by the board must, at a minimum, contain the following: |
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(1) a distinctive single-page format that readily |
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identifies the document as an out-of-hospital DNR order; |
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(2) a title that readily identifies the document as an |
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out-of-hospital DNR order; |
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(3) the printed or typed name of the person; |
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(4) a statement that the physician signing the |
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document is the attending physician of the person and that the |
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physician is directing health care professionals acting in |
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out-of-hospital settings, including a hospital emergency |
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department, not to initiate or continue certain life-sustaining |
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treatment on behalf of the person, and a listing of those procedures |
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not to be initiated or continued; |
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(5) a statement that the person understands that the |
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person may revoke the out-of-hospital DNR order at any time by |
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destroying the order and removing the DNR identification device, if |
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any, or by communicating to health care professionals at the scene |
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the person's desire to revoke the out-of-hospital DNR order; |
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(6) places for the printed names and signatures of the |
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witnesses or the notary public's acknowledgment and for the printed |
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name and signature of the attending physician of the person and the |
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medical license number of the attending physician; |
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(7) a separate section for execution of the document |
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by the legal guardian of the person, the person's proxy, an agent of |
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the person having a medical power of attorney, or the attending |
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physician attesting to the issuance of an out-of-hospital DNR order |
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by nonwritten means of communication or acting in accordance with a |
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previously executed or previously issued directive to physicians |
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under Section 166.082(c) that includes the following: |
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(A) a statement that the legal guardian, the |
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proxy, the agent, the person by nonwritten means of communication, |
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or the physician directs that each listed life-sustaining treatment |
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should not be initiated or continued in behalf of the person; and |
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(B) places for the printed names and signatures |
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of the witnesses and, as applicable, the legal guardian, proxy, |
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agent, or physician; |
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(8) a separate section for execution of the document |
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by at least one qualified relative of the person when the person |
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does not have a legal guardian, proxy, or agent having a medical |
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power of attorney and is incompetent or otherwise mentally or |
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physically incapable of communication, including: |
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(A) a statement that the relative of the person |
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is qualified to make a treatment decision to withhold |
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cardiopulmonary resuscitation and certain other designated |
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life-sustaining treatment under Section 166.088 and, based on the |
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known desires of the person or a determination of the best interest |
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of the person, directs that each listed life-sustaining treatment |
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should not be initiated or continued in behalf of the person; and |
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(B) places for the printed names and signatures |
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of the witnesses and qualified relative of the person; |
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(9) a place for entry of the date of execution of the |
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document; |
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(10) a statement that the document is in effect on the |
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date of its execution and remains in effect until the death of the |
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person or until the document is revoked; |
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(11) a statement that the document must accompany the |
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person during transport; |
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(12) a statement regarding the proper disposition of |
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the document or copies of the document, as the board determines |
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appropriate; and |
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(13) a statement at the bottom of the document, with |
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places for the signature of each person executing the document, |
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that the document has been properly completed. |
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SECTION 7. Section 166.089(d), Health and Safety Code, is |
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amended to read as follows: |
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(d) The responding health care professionals must determine |
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that the out-of-hospital DNR order form appears to be valid in that |
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it includes: |
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(1) written responses in the places designated on the |
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form for the names, signatures, and other information required of |
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persons executing or issuing, or witnessing or acknowledging as |
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applicable, the execution or issuance of, the order; |
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(2) a date in the place designated on the form for the |
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date the order was executed or issued; and |
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(3) the signature or digital or electronic signature |
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of the declarant or persons executing or issuing the order and the |
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attending physician in the appropriate places designated on the |
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form for indicating that the order form has been properly |
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completed. |
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SECTION 8. Section 166.154, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 166.154. EXECUTION [AND WITNESSES]. (a) Except as |
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provided by Subsection (b), the [The] medical power of attorney |
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must be signed by the principal in the presence of two witnesses who |
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qualify under Section 166.003, at least one of whom must be a |
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witness who qualifies under Section 166.003(2). The witnesses must |
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sign the document. |
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(b) The principal, in lieu of signing in the presence of the |
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witnesses, may sign the medical power of attorney and have the |
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signature acknowledged before a notary public. |
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(c) [(b)] If the principal is physically unable to sign, |
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another person may sign the medical power of attorney with the |
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principal's name in the principal's presence and at the principal's |
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express direction. The person may use a digital or electronic |
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signature authorized under Section 166.011. |
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SECTION 9. (a) Not later than December 1, 2009, the |
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executive commissioner of the Health and Human Services Commission |
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shall adopt the rules and modify the forms as necessary to comply |
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with the changes in law made by this Act. |
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(b) Notwithstanding Chapter 166, Health and Safety Code, as |
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amended by this Act, a person may not sign an advance directive or a |
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written revocation of an advance directive using a digital or |
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electronic signature before January 1, 2010. |
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SECTION 10. This Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 2585 was passed by the House on May |
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12, 2009, by the following vote: Yeas 149, Nays 0, 1 present, not |
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voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 2585 was passed by the Senate on May |
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26, 2009, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: _____________________ |
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Date |
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_____________________ |
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Governor |