Provider letter 16-13 ( Information Letter No. 16-13 — Supported Decision-MakingAgreement Act ) introduced the Supported Decision Maker to just about every program in the state of Texas as an alternative to guardianship. Unfortunately, for the ICF/IID programs, it ultimately presents more concerns than it does supports and may really be a problem for ICF/IID use.
The act presents a “Supported Decision Maker” into the equation for ICF/IID, or a SDM. It should not be confused with a “Surrogate Decision Maker” from the Surrogate Program that is also known as an “SDM”. This act is entirely separate from the surrogate program. It does present some potential concerns when dealing with the surrogate program for individuals who have always depended on that program.
A quick read through the role of an SDM will indicate that the SDM is to gather information and to communicate the individual’s “life decisions”. This is all done after the individual (the client in the ICF/IID) signs a supported decision-making agreement with the person who will serve as the SDM. The SDM does not make the decisions, but only helps the person make the decisions and then communicates the person’s decision to the appropriate person(s). It sounds all straight forward in a basic reading.
After reading over the entire act, the sample agreement, and the responsibilities of the SDM, there are several concerns that may need to be addressed by the next legislative session:
1. This act does nothing to resolve the “waiting” period faced by ICF/IID providers when it comes to the Surrogate Decision Making Program. The program often can take months to complete and obtain a legal consent for things needed immediately such as psychotropic medications. The facility and IDTeam usually has no choice except to give the medications while consent through the Surrogate Program is being sought. A better use for the SDM would have been to have this person make a decision pending a Surrogate Decision Making Committee’s review of the decision, but that application would only apply to ICF/IID programs that use the Surrogate Program.
2. This act allows 14 year olds to sign the agreement as a witness. Since a 14 year old is not a legal adult, there can and will likely be problems with those signatures being considered “legal” witnesses to the agreement.
3. The act assumes the person with the disability requires assistance with making decisions without any assessment to determine if that individual needs assistance. Further, if the individual needs assistance in making decisions, then who decides the individual with disabilities has the ability to understand and sign the agreement to obtain an SDM?
4. Some providers may see this as an avenue to avoid the Surrogate Decision Making Program’s long, and often paperwork intensive, procedures. If a facility does decide to use the SDM and avoids the Surrogate program, what grounds will a surveyor have to cite the facility regarding consents? Will the surveyor refer to prior Surrogate use? The new law creates some confusion here since the SDM presents information and communicates the person’s decision. If the decision is “I want to take Risperdal,” and that is communicated, then in theory the IDTeam could accept this as consent without using the Surrogate Program. Again, this is going to create issues for the surveyor and the provider as to how to defend their cases for or against deficient practice.
5. The act also gives no consideration to the level of disability. It simply “assumes” that a few questions can be presented to anyone with disabilities and he or she will decide they “want” an SDM. Based on the wording, a person with Profound Intellectual Disabilities who simply nods his or her head at the right time during questions, could sign the agreement. The SDM could then present that individual’s “decision” to the rest of the IDTeam based on whatever efficient level of communication the SDM has with the individual. There would be no way of telling if the person really wanted the SDM or really made the decision as presented.
6. The act does not give any consideration to other assessments. For example, if a person has been using the Surrogate Program for consent for psychotropic medications – does the assessment from the previous Surrogate Application mean the person can not obtain a Supportive Decision Maker? If the person does obtain a SDM, what grounds does that leave for surveyors who believe the person can not give consent?
7. Since anyone can be an SDM in this program, it means that Administrators, QIDPs, Managers and even direct care staff could sign the agreement. For that matter, a person’s physician could sign the agreement, present the information to the person, and then communicate that person’s decision to the facility regarding surgery, medications, etc. This would then mean that consent is assumed by the person’s decision.
Overall, the Supportive Decision Making Act can likely be a benefit to many programs in the state. It has been applied to the ICF/IID programs, but probably should not have been. It will create confusion and in some cases such as situation when a surveyor writes deficient practice pertaining to consents, the SDM may be the fall back defense in an Informal Dispute Resolution (IDR) or even a lawsuit presented by the provider or the SDM. In theory, the provider could present that the SDM provided the individual’s decision regarding an issue and that the decision was then accepted as consent. In such a case as this, should it reach a legal level, it would be up to a court to determine if the person had ever been “deemed incompetent in a court of law,” and usually if they have not, then the court considers that person competent to make his or her own decisions.