TX House Bill 2585

Legislation

State: Texas
Signed: June 19, 2009

Effective: September 01, 2009
Chapter: 461

Summary

House Bill 2585 permits an advance medical directive (AMD), including do-not-resuscitate orders and medical powers of attorney, to be signed and notarized using a digital or electronic signature as defined by the new law. The new law also permits AMDs to be executed by the declarant before two witnesses or a Notary.

Affects

Amends Sections 166.002, 166.011, 166.032, 166.036, 166.082, 166.083, 166.089, and 166.154 of the Texas Health and Safety Code.

Changes

Defines “digital signature” as an electronic identifier intended by the signer to have the same force and effect as a manual signature.
Defines “electronic signature” as a facsimile, scan, uploaded image, computer-generated image, or other electronic representation of a manual signature that is intended by the signer to have the same force and effect as a manual signature.
Effective January 1, 2010, authorizes a declarant, witness or Notary to sign an advance medical directive or a written revocation of a directive using a digital signature that: (a) uses an algorithm approved by the Texas Department of State Health Services; (b) is unique to the person using it; (c) is capable of verification; (d) is under the sole control of the person using it; (e) is linked to data in a manner that invalidates the digital signature if the data is changed; (f) persists with the document and not by association in separate files; and (g) is bound to a digital certificate.
Clarifies that in approving an algorithm for creating a digital signature, the Texas Department of State Health Services may consider an algorithm approved by the National Institute of Standards and Technology.
Effective January 1, 2010, authorizes a declarant, witness or Notary to sign an advance medical directive or a written revocation of a directive using an electronic signature that: (a) is capable of verification; (b) is under the sole control of the person using it; (c) is linked to data in a manner that invalidates the electronic signature if the data is changed; and (d) persists with the document and not by association in separate files.
Permits an advance medical directive to be executed by the declarant before two witnesses or before a Notary who takes the declarant’s acknowledgment.
Permits a medical power of attorney to be executed by the declarant before two witnesses or before a Notary who takes the declarant’s acknowledgment.
Effective January 1, 2010 permits a medical power of attorney to be signed by the declarant, witnesses or Notary with a digital or electronic signature.
Permits an out-of-hospital Do Not Resuscitate Order (DNR) to be executed by the declarant before two witnesses or before a Notary who takes the declarant’s acknowledgment and specifies that the DNR form must contain places for the Notary’s acknowledgment and signatures of the witnesses.
Permits a physician to sign an out-of-hospital Do Not Resuscitate Order for an incompetent declarant who previously executed an advance directive using a digital or electronic signature as defined under the Act.
Clarifies that responding health care professionals must determine that an out-of- hospital DNR order appears valid by ensuring that the DNR order is: (a) completed, signed and witnessed or acknowledged, as applicable; (b) dated; and (c) signed with a manual, digital or electronic signature.
Directs the executive commissioner of the Health and Human Services Commission by rule to modify the advance directive forms required as necessary to provide for the use of a digital or electronic signature no later than December 1, 2009.

Analysis

Advance medical directives (AMD) are documents, such as do-not-resuscitate orders and physician/medical orders for life sustaining treatment, that allow individuals to appoint someone to make medical treatment decisions for them if they are incapacitated. AMDs allow individuals to pre-determine how they will be treated, or not, if they become incapacitated and cannot make medical decisions for themselves. This bill updates Texas law relating to the execution, authentication, and enforcement of AMDs to address the current state of technology and current best practices applicable to AMDs by clearly and unambiguously stating that an electronic or digital signature on an AMD is acceptable, and by allowing such signatures to be authenticated by witnesses or a Notary. By permitting individuals to electronically or digitally sign AMDs and have their signatures witnessed or notarized, the bill makes it easier for all individuals to have AMDs and moves the Texas health care system closer to becoming a paperless system.

The “digital signature” referenced in this new law could be affixed using the NNA’s Electronic Notary Signature, provided of course that its hashing algorithm complies with the future rules promulgated by the Texas Department of State Health Services. The NNA’s ENS complies with all other rules for a digital signature under this new law.

Most of the performance standards for an “electronic signature” under this new law are consistent with forthcoming rules for e-signatures in the NNA’s own revised Model Notary Act, expected later this year and with the National eNotarization Standards, adopted by the National Association of Secretaries of State.

Read House Bill 2585.