530.004 Legal Planning and the Client/Provider Relationship

Policy Number  530.004
Effective Date  March 26, 1997
Revision Date  September 7, 2001
Approval Authority  TB/HIV/STD Section Director

1.0 Purpose

The intent of this policy is to clarify the relationship between HIV service providers funded through the Texas Department of State Health Services (DSHS), TB/HIV/STD Section (Section), and their clients who may be involved in legal planning. The policy will clarify when a conflict of interest exists between an employee or member of the board of directors of a contracting and/or subcontracting agency and a client developing a legal plan. In addition, the policy outlines what legal services may be purchased using state and federal funds allocated through DSHS.

2.0 Background

Employees and members of the board of directors for agencies contracting or subcontracting with DSHS are sometimes asked to become involved in the legal planning process for a client receiving HIV services through the agencies. State and federal laws prohibit certain types of actions on the part of the representatives for the agencies as they assist the client. Therefore, agencies should be aware of the activities allowed in this regard and what should be done to assist clients in the legal planning process.

3.0 Authority and Relevant Legal Provisions

Chapter 672 ("Natural Death Act"), and 674 ("Out-of-Hospital Do Not Resuscitate Orders") of the Texas Health and Safety Code; Chapter 135 ("Durable Power of Attorney for Health Care") of the Texas Civil Practice and Remedies Code; Chapters 405 ("Client (Patient) Care") and 125 ("Special Care Facilities Licensing Rules") of Title 25, Texas Administrative Code; and 42 U.S Code§ 1395cc ("Agreements with Providers of Services").

4.0 Definitions as Used in this Policy

Advance Directive - a competent adult's written or oral instruction regarding life sustaining treatment in the event a terminal condition develops. Examples include a Directive to Physician/Living Will or Durable Power of Attorney for Health Care.

Agent - a person designated by an individual to make treatment or other decisions if the individual becomes incapacitated. The agent is obligated to follow the individual's instructions in making these decisions. The law does not permit a person to be a client's agent and his health or residential care provider.

Durable power of attorney - a document delegating the authority to an agent to make health care decisions for an individual in the event the individual becomes unable to make those decisions.

Legal plan - terminology used to refer to an advance directive and/or estate plan.

Provider - a person, agency or facility approved by DSHS that has entered into a contract with DSHS to deliver state or federal HIV/STD programs to clients.

Living will - a document clarifying the extent of medical treatment the individual wishes to receive from a health care provider should the individual have a terminal condition or become incapacitated with no hope of recovery.

5.0 Legal Planning and the Client/Health Care Provider Relationship

Note: This section does not apply to agencies providing direct legal services to persons with HIV.

5.1 Conflict of interest

DSHS recognizes a conflict of interest in the following situations:

  • When a provider employee or member of the board of directors is serving, or has served as an agent or witness, in the issuance of a legal plan for a client receiving assistance from the organization which is funded through DSHS.

  • When provider employees (including those involved in fiscal affairs), and members of boards of directors of contracting agencies, receive benefits such as SSI or SSA on behalf of the client.

The conflict of interest may be real or it may be perceived by other individuals.

5.2 Situations when a conflict of interest would not exist

Providers may encourage clients to establish legal plans.

Providers may suggest, but may NOT require, a person to execute a durable power of attorney for health care before admitting the person in a program, insuring that person, or allowing the person to receive care or services.

5.3 Situations in which an agency or provider may not interfere

Providers may not influence the client to benefit the agency or its employees monetarily, materially, or in any tangible way when drawing up the legal plan.

Neither providers nor their employees may attempt to coerce or manipulate a client's decisions regarding legal planning.

A provider may not modify a client's fee for services nor refuse service because the client has, or has not, executed a durable power of attorney.

5.4 Client rights

Clients may independently decide to provide for the agency or one of it's representatives in the client's estate, but the decision must be independent and free from agency influence. The client should be fully aware of the nature of all legal plan documents and should sign the documents voluntarily and free from duress.

6.0 Repercussions of Interfering with Legal Plan of Another Person

A violation of these provisions is considered client exploitation and abuse and will result in contract sanctions and referral for appropriate legal action. Violations should be reported to DSHS and the State Attorney General's, Fraud and Abuse Division. It is a crime for an individual to conceal, cancel, deface, obliterate, or damage another person's legal plan without that person's consent.

7.0 Responsibilities of Case Management

Case managers should be educated on legal planning and legal referral issues. When clients make the initial contact, case management staff may provide information about legal planning. The information may include written material about an individual's rights under state law to make decisions about medical care, acceptance or refusal of treatment, and formulation of advance directives. When a client cannot receive information due to an incapacitating condition or a mental disorder, case management staff may provide information about legal planning to the client's family or guardian.

8.0 Use of Funds

8.1 Allowable use of funds

State and federal funds allocated through DSHS for HIV health care services may be used for certain legal planning services necessitated by an individual's HIV/AIDS serostatus. Funds may be used for power of attorney issuances, Do Not Resuscitate (DNR) orders, wills, trusts, bankruptcy proceedings, and services necessary to secure benefits to which an individual may be entitled. Funds may also be used for permanency planning where a responsible adult is expected to die before a dependent (usually a minor child) or a family. Permanency planning may include social service counseling or legal counsel about drafting wills, delegating power of attorney, and preparing custody options for legal dependents (e.g., standby guardianship, joint custody, or adoption).

8.2 Circumstances in which funds may not be used

State and federal funds allocated through DSHS for HIV health care services may not be used for criminal defense, discrimination litigation, or class action suits or suits against agencies of the state and federal government.

9.0 Where to Find Help

Call the Health Care Finance Administration (HCFA), Office of Beneficiary Services hotline for information about advance directives: 1-800-638-6833. HCFA also has a Medicare and advance directives leaflet, a cartoon booklet for low-literacy clients, and publishes a State Medicaid Manual concerning advance directive requirements (HCFA Pub. 45-2), Order N ZPB88-952399. For a copy, contact the National Technical Information Service (NTIS), Subscription Dept., 5285 Port Royal Road, Springfield, VA 22161, phone 703-487-4630.

Free legal services are available in many communities. Questions or requests for information on legal planning services should be directed to an attorney at law. The Texas Human Rights Foundation AIDS Legal Resource Project can provide information on legal planning. Write to the Foundation at P.O. Box 1626, Austin, Texas 78767-1626 or call 800-828-6417, 512-479-8473, FAX 512-474-0726. For a list of attorneys and legal assistance programs, call the State Bar of Texas Lawyer Referral Service at 800-252-9690.

10.0 Revision History

Date Action Section
9/1/2017 Changed "TB/HIV/STD Unit" to "TB/HIV/STD Section" to reflect new program designation -
9/19/2014 Converted format (Word to HTML) -
9/7/2001 Policy was renumbered from 500.004 to 530.004 -