(a) A person notified of a surrogate consent committee hearing, as required by §9.291(a) and (d) of this division (relating to Notice of Hearing and Documents Provided to Surrogate Consent Committee), is entitled to be present at the hearing and to present evidence or testimony personally or through a representative.
(b) A community program provider must ensure that:
  (1) the individual for whom the treatment decision is sought is present at the hearing, if practicable;
  (2) the individual's record is at the hearing; and
  (3) an audio recording of the hearing is made.
(c) At a surrogate consent committee hearing, the committee:
  (1) must review the documentation described in §9.291(c) of this division and any additional information provided to the committee by DADS;
  (2) must interview and observe the individual, if practicable, and document its impressions of the interview and observation;
  (3) must review evidence or hear testimony from a person notified of the hearing as required by §9.291(a) and (d) of this division, or the person's representative, if the person or the person's representative makes a request to present evidence or testimony at the hearing; and
  (4) may review evidence or hear testimony from any person who may be able to assist the committee in making a treatment decision.
(d) After the surrogate consent committee has reviewed all evidence and heard all testimony, the committee must enter into closed deliberations and make the treatment decision.
(e) In making the treatment decision, the surrogate consent committee must determine, based on clear and convincing evidence, whether the proposed treatment, medication, or procedure is in the best interest of the individual.
  (1) If a majority of the volunteers on the surrogate consent committee determine that the proposed treatment, medication, or procedure is in the best interest of the individual, the committee must consent to the proposed treatment, medication, or procedure.
  (2) If a majority of the volunteers on the surrogate consent committee determine that the proposed treatment, medication, or procedure is not in the best interest of the individual, the committee must deny consent to the proposed treatment, medication, or procedure.
(f) If the surrogate consent committee consents to the proposed treatment, medication, or procedure, the committee must determine the date on which the consent becomes effective and the duration of the consent.
(g) If an application for a guardianship proceeding for the individual has been filed before the surrogate consent committee makes a treatment decision, the committee must, before continuing with the hearing, make one of the following determinations:
  (1) a person has not been appointed guardian of the person for the individual within five days after suspension of the committee proceeding in accordance with §9.294 of this division (relating to Notice of Guardianship Proceeding); or
  (2) there is a medical necessity, based on clear and convincing evidence, that the treatment decision be made within five days after the hearing date.
(h) Formal rules of evidence are not applicable to a surrogate consent committee hearing.
(i) A surrogate consent committee must conduct the hearing and document its treatment decision in accordance with written instructions from DADS available at www.dads.state.tx.us.
(j) A community program provider must:
  (1) send to DADS in accordance with written instructions from DADS available at www.dads.state.tx.us:
    (A) the audio recording of a hearing made in accordance with subsection (b) of this section;
    (B) the documentation completed by the surrogate consent committee; and
    (C) the written evidence presented at the hearing; and
  (2) send to a person notified of a surrogate consent committee hearing, as required by §9.291(a) and (d) of this division, the documentation completed by the surrogate consent committee.

Source Note: The provisions of this §261.293 adopted to be effective July 1, 2007, 32 TexReg 3856; transferred effective October 1, 2020, as published in the Texas Register August 28, 2020, 45 TexReg 6127