Health Care Decisions Act - Surrogate Decision Making - Hospital Surrogate Committee

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW.
[Brackets] indicate matter deleted from existing law.
*hb1323*

HOUSE BILL 1323
J1 6lr3164

By: Delegate Rosenberg
Introduced and read first time: February 12, 2026
Assigned to: Health

A BILL ENTITLED

AN ACT concerning 1

Health Care Decisions Act – Surrogate Decision Making – Hospital Surrogate 2
Committee 3

FOR the purpose of requiring hospital s to establish a surrogate committee to provide 4
surrogate decision making for an unrepresented patient; authorizing the surrogate 5
committee to make treatment decisions for unrepresented patient s under certain 6
circumstances; establishing requirements for the composition, training, and 7
procedures of a surrogate committee; and generally relating to health care decision 8
making by surrogate committees. 9

BY repealing and reenacting, without amendments, 10
Article – Health – General 11
Section 5–601(a) and 5–606 12
Annotated Code of Maryland 13
(2023 Replacement Volume and 2025 Supplement) 14

BY adding to 15
Article – Health – General 16
Section 5–601(x) and (z) and 5–604.2 17
Annotated Code of Maryland 18
(2023 Replacement Volume and 2025 Supplement) 19

BY repealing and reenacting, with amendments, 20
Article – Health – General 21
Section 5–601(x) and 5–605 22
Annotated Code of Maryland 23
(2023 Replacement Volume and 2025 Supplement) 24

SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 25
That the Laws of Maryland read as follows: 26

2 HOUSE BILL 1323

Article – Health – General 1

5–601. 2

(a) In this subtitle the following words have the meanings indicated. 3

(X) “SURROGATE COMMITTEE” MEANS A COMMITTEE ES TABLISHED BY A 4
HOSPITAL UNDER § 5–604.2 OF THIS SUBTITLE. 5

[(x)] (Y) “Terminal condition” means an incurable condition caused by injury, 6
disease, or illness which, to a reasonable degree of medical certainty, make s death 7
imminent and from which, despite the application of life–sustaining procedures, there can 8
be no recovery. 9

(Z) “UNREPRESENTED PATIENT” MEANS A PATIENT: 10

(1) WHO HAS BEEN CERTIFIED TO BE INCAPABLE OF M AKING AN 11
INFORMED DECISION UNDER § 5–606(A) OF THIS SUBTITLE; 12

(2) WHO IS RECEIVING CARE IN A HOSPITAL; 13

(3) WHO DOES NOT HAVE AN ADVANCE DIRECTIVE; 14

(4) FOR WHOM AN IDENTIFIA BLE SURROGATE LISTED IN § 15
5–605(A)(2)(I), (II), (III), (IV), (V), OR (VI) OF THIS SUBTITLE IS UNAVAILABLE; AND 16

(5) FOR WHOM THERE IS NO OTHER EVIDENCE FROM THE PATIENT’S 17
HISTORY OR FROM OTHER PARTIE S THAT IS SUFFICIENT TO SUPPORT A 18
REASONABLY CONCLUSIVE JUDGMENT ABOUT WHA T THE PATIENT WOULD LIKELY 19
CHOOSE REGARDING MEDICAL TREATMENT. 20

5–604.2. 21

(A) EACH HOSPITAL SHALL ESTABLISH A S URROGATE COMMITTEE TO 22
PROVIDE SURROGATE DECISION MAKING FOR AN UNREPRESENTED PATIENT. 23

(B) A SURROGATE COMMITTEE SHALL CONSIST OF: 24

(1) A PHYSICIAN WHO: 25

(I) WORKS OR HAS WORKED IN THE HOSPITAL; AND 26

(II) IS NOT INVOLVED IN TH E TREATMENT OF THE 27
UNREPRESENTED PATIENT; 28
HOUSE BILL 1323 3

(2) A NURSE WHO: 1

(I) WORKS OR HAS WORKED IN THE HOSPITAL; AND 2

(II) IS NOT INVOLVED IN TH E TREATMENT OF THE 3
UNREPRESENTED PATIENT; 4

(3) A SOCIAL WORKER OR A MEMBER OF THE CLERGY WHO WORKS OR 5
HAS WORKED IN THE HOSPITAL; 6

(4) A MEMBER OF THE HOSPITAL’S PATIENT CARE ADVIS ORY 7
COMMITTEE; 8

(5) A PATIENT ADVOCATE WHO IS NOT AFFILIATED WI TH THE 9
HOSPITAL AND WHO MAY BE: 10

(I) AN ATTORNEY WHO REPRESENTS OR SERVES INDIVIDUALS 11
WITH HEALTH CARE ISSUES; 12

(II) A SOCIAL WORKER WHO RE PRESENTS OR SERVES 13
INDIVIDUALS WITH HEALTH CARE ISSUES; OR 14

(III) AN INDIVIDUAL WHO WOR KS FOR A N ENTITY THAT 15
PROVIDES PATIENT ADVOCACY SERVICES; 16

(6) AN INDI VIDUAL WHO IS NOT EM PLOYED BY THE HOSPITAL AND 17
WHO IS OR HAS BEEN: 18

(I) A PATIENT IN THE HOSPITAL OR THE HEALTH CARE SYSTEM 19
WITH WHICH THE HOSPITAL IS AFFILIATED; OR 20

(II) A CARETAKER OF A PATIE NT WHO LACKS 21
DECISION–MAKING CAPACITY; AND 22

(7) (I) AN EMPLOYEE O R A VOLUNTEER AFFILIATED WITH A 23
DISABILITY OR AGING PERSONS ADVOCACY ORGANIZATION; OR 24

(II) AN INDIVIDUAL WITH A DISABILITY. 25

(C) BEFORE SERVING ON A SURROGATE COMMITTEE, AN INDIVIDUAL SHALL 26
COMPLETE A TRAINING COURSE DEVELOPED OR ENDORSED BY THE OFFICE OF 27
HEALTH CARE QUALITY WITHIN THE DEPARTMENT AND THE DEPARTMENT OF 28
4 HOUSE BILL 1323

HUMAN SERVICES, WITH INPUT FROM THE DEPARTMENT OF DISABILITIES, THAT 1
INCLUDES CONTENT ADDRESSING: 2

(1) CORE BIOETHICAL PRINCIPLES AND THE RELEVANT PROVISIONS 3
OF THE HEALTH CARE DECISIONS ACT INCLUDING: 4

(I) SURROGATE DECISION MAKING; 5

(II) INFORMED CONSENT AND EMERGENCY EXCEPTIONS TO 6
INFORMED CONSENT REQUIREMENTS; 7

(III) CAPACITY ASSESSMENT; 8

(IV) SUBSTITUTED JUDGMENT; AND 9

(V) THE BEST INTEREST STANDARD; 10

(2) DUE PROCESS PROTECTIONS; 11

(3) PATIENT RIGHTS; 12

(4) INFORMATION ON W HEN CONSULTATION WIT H THE PATIENT 13
CARE ADVISORY COMMITTEE IS APPROPRIATE; 14

(5) PATIENT CONFIDENTIALITY; 15

(6) DOCUMENTATION REQUIREMENTS; 16

(7) CONFLICTS OF INTEREST; AND 17

(8) IMPLICIT BIAS , WITH A FOCUS ON BIAS RELATED TO RACE, 18
ETHNICITY, SEX, GENDER, DISABILITY, SOCIOECONOMIC STATUS, AND 19
IMMIGRATION STATUS. 20

(D) (1) THE PROCEEDINGS AND D ELIBERATIONS OF A SU RROGATE 21
COMMITTEE SHALL BE CONFIDENTIAL. 22

(2) THE SURROGATE COMMITT EE SHALL BE ABLE TO RECEIVE AND 23
REVIEW ALL RELEVANT MEDICAL RECORDS SUBJECT TO APPLICABLE FEDERAL AND 24
STATE LAW AND REGULATION. 25

(3) THE SURRO GATE COMMITTEE MAY N OT DISCLOSE D OCUMENTS 26
OR MATERIAL THAT ARE CONFIDENTIAL UNDER LAW OR REGULATION. 27
HOUSE BILL 1323 5

(E) ON OR BEFORE JANUARY 31 EACH YEAR, A HOSPITAL THAT HAS USED A 1
SURROGATE COMMITTEE DURING THE IMMEDIATELY PRECEDING CALENDAR YEAR 2
SHALL REPORT TO THE OFFICE OF HEALTH CARE QUALITY WITHIN THE 3
DEPARTMENT: 4

(1) THE NUMBER OF TIMES T HE SURROGATE COMMITT EE WAS 5
CONVENED TO MAKE A T REATMENT DECISION FOR AN UNREPRESENTED PATIENT; 6
AND 7

(2) FOR EACH UNREPRESENTED PATIENT: 8

(I) THE NAMES OF THE MEMBERS OF THE SURROGATE 9
COMMITTEE PRESENT AT THE MEETING AT WHICH THE TREATMENT DECISION WAS 10
MADE; 11

(II) A DESCRIPTION OF THE UNREPRESENTED PATIENT’S 12
CONDITION; 13

(III) DEMOGRAPHIC INFORMATI ON REGARDING THE 14
UNREPRESENTED PATIENT, INCLUDING RACE, SEX, GENDER, AND DISABILITY; 15

(IV) THE EFFORTS MADE BY T HE HOSPITAL TO LOCATE A 16
SURROGATE; 17

(V) THE TREATMENT DECISIO NS CONSIDERED BY THE 18
SURROGATE COMMITTEE; 19

(VI) THE DECISION OF THE SURROGATE COMMITTEE; 20

(VII) THE BASIS FOR THE SURROGATE COMMITTEE’S DECISION; 21

(VIII) WHETHER THE UNREPRESENTED PATIENT WAS ABLE TO 22
LEAVE THE HOSPITAL; AND 23

(IX) WHETHER THE HOSPITAL WAS REQUIRED TO FILE FOR 24
GUARDIANSHIP OF THE UNREPRESENTED PATIENT BEFORE DISCHARGE. 25

(F) (1) A HOSPITAL SHALL MAKE THE REPORT REQUIRED UNDE R 26
SUBSECTION (E) OF THIS SECTION AVAILABLE TO THE PUB LIC ON REQUEST, WITH 27
APPROPRIATE REDACTIONS TO PROTECT PATIENT CONFIDENTIALITY. 28

6 HOUSE BILL 1323

(2) A HOSPITAL SHALL INCLUDE INFORMATION ON THE HOSPITAL’S 1
WEBSITE ALERTING THE PUBLIC OF HOW TO OBTAIN A COPY OF THE REPORT. 2

5–605. 3

(a) (1) (i) In this subsection the following words have the meanings 4
indicated. 5

(ii) “Person eligible for relief” has the meaning stated in § 4 –501 of 6
the Family Law Article. 7

(iii) “Unavailable” means: 8

1. After reasonable inquiry, a health care provider is 9
unaware of the existence of a health care agent or surrogate decision maker; 10

2. After reasonable inquiry, a health care provider cannot 11
ascertain the whereabouts of a health care agent or surrogate decision maker; 12

3. A health care agent or surrogate decision maker has not 13
responded in a timely manner, taking into account the health care needs of the individual, 14
to a written or oral message from a health care provider; 15

4. A health care agent or surrogate decision maker is 16
incapacitated; or 17

5. A health care agent or surrogate decision maker is 18
unwilling to make decisions concerning health care for the individual. 19

(2) Subject to paragraph (4) of this subsection, the following individuals or 20
groups, in the specified order of priority, may make decisions about health care for a person 21
who has been certified to be incapable of making an informed decision and who has not 22
appointed a health care agent in ac cordance with this subtitle or whose health care agent 23
is unavailable. Individuals in a particular class may be consulted to make a decision only 24
if all individuals in the next higher class are unavailable: 25

(i) A guardian for the patient, if one has been appointed; 26

(ii) The patient’s spouse or domestic partner; 27

(iii) An adult child of the patient; 28

(iv) A parent of the patient; 29

(v) An adult brother or sister of the patient; [or] 30

HOUSE BILL 1323 7

(vi) A friend or other relative of the patient who meets the 1
requirements of paragraph (3) of this subsection; OR 2

(VII) A SURROGATE COMMITTEE. 3

(3) A friend or other relative may make decisions about health care for a 4
patient under paragraph (2) of this subsection if the person: 5

(i) Is a competent individual; and 6

(ii) Presents an affidavit to the attending physician stating: 7

1. That the person is a relative or close friend of the patient; 8
and 9

2. Specific facts and circumstances demonstrating that the 10
person has maintained regular contact with the patient sufficient to be familiar with the 11
patient’s activities, health, and personal beliefs. 12

(4) An individual may not make decisions about health care for a patient 13
under paragraph (2) of this subsection if: 14

(i) The individual is the subject of an interim, temporary, or final 15
protective order and the patient is a person eligible for relief under the order; or 16

(ii) The individual is the spouse of the patient and: 17

1. The individual and patient have executed a separation 18
agreement; or 19

2. The individual or patient has filed an application for 20
divorce. 21

(5) The attending physician shall include the affidavit presented under 22
paragraph (3) of this subsection in the patient’s medical record. 23

(6) A person who obtains new infor mation that would prohibit an 24
individual from making health care decisions for a patient under paragraph (4) of this 25
subsection shall provide the information to any health care provider or health care facility 26
providing services to the patient. 27

(7) (I) IF AN UNREPRESENTED P ATIENT’S ATTENDING PHYSICIAN 28
DETERMINES THAT THERE IS A NEED TO MAKE HEALTH CARE DECISIONS FOR THE 29
UNREPRESENTED PATIEN T, THE ATTENDING PHYSIC IAN SHALL CONVENE TH E 30
SURROGATE COMMITTEE. 31

8 HOUSE BILL 1323

(II) THE SURROGATE COMMITTEE SHALL MEET PROMPTLY. 1

(III) IF PRACTICABLE, ALL SURROGATE COMMIT TEE MEMBERS 2
SHALL PERSONALLY OBS ERVE THE UNREPRESENT ED PATIENT BEFORE MAKING A 3
TREATMENT DECISION. 4

(IV) THE FINAL DECISION OF THE SURROGATE COMMIT TEE 5
MUST BE SUPPORTED BY A MAJORITY OF THE MEMBERS, INCLUDING: 6

1. AT LEAST TWO OF THE M EMBERS LISTED IN § 7
5–604.2(B)(1) THROUGH (4) OF THIS SUBTITLE; AND 8

2. AT LEAST TWO OF THE M EMBERS LISTED IN § 9
5–604.2(B)(5) THROUGH (7) OF THIS SUBTITLE. 10

(b) (1) If persons with equal decision making prior ity under subsection (a) of 11
this section disagree about a health care decision, and a person who is incapable of making 12
an informed decision is receiving care in a hospital or related institution, the attending 13
physician or an individual specified in subse ction (a) of this section shall refer the case to 14
the institution’s patient care advisory committee, and may act in accordance with the 15
recommendation of the committee or transfer the patient in accordance with the provisions 16
of § 5–613 of this subtitle. A physician who acts in accordance with the recommendation of 17
the committee is not subject to liability for any claim based on lack of consent or 18
authorization for the action. 19

(2) If a person who is incapable of making an informed decision is not in a 20
hospital or related institution, a physician may not withhold or withdraw life –sustaining 21
procedures if there is not agreement among all the persons in the same class. 22

(c) (1) Any person authorized to make health care decisions for another under 23
this section shall base those decisions on the wishes of the patient and, if the wishes of the 24
patient are unknown or unclear, on the patient’s best interest. 25

(2) In determining the wishes of the patient, a surrogate shall consider the 26
patient’s: 27

(i) Current diagnosis and prognosis with and without the treatment 28
at issue; 29

(ii) Expressed preferences regarding the provision of, or the 30
withholding or withdrawal of, the specific treatment at issue or of similar treatments; 31

(iii) Relevant religious and moral beliefs and personal values; 32

(iv) Behavior, attitudes, and past conduct with respect to the 33
treatment at issue and medical treatment generally; 34
HOUSE BILL 1323 9

(v) Reactions to the provision of, or the withholding or withdrawal 1
of, a similar treatment for another individual; and 2

(vi) Expressed concerns about the effect on the family or intimate 3
friends of the patient if a treatment were provided, withheld, or withdrawn. 4

(3) The decision of a surrogate regarding whether life –sustaining 5
procedures should be provided, withheld, or withdrawn shall not be based, in whole or in 6
part, on either a patient’s preexisting, long –term mental or physical disability, or a 7
patient’s economic disadvantage. 8

(4) (I) [A] SUBJECT TO SUBPARAGRAPH (II) OF THIS PARAGRAPH, 9
A surrogate shall inform the patient, to the extent possible, of the proposed procedure and 10
the fact that someone else is authorized to make a decision regarding that procedure. 11

(II) IF A SURROGATE COMMITTEE HAS BEEN CONVENED , A 12
MEMBER OF THE SURROGATE COMMITTEE SHALL INFORM THE UNREPRESENTED 13
PATIENT, BOTH ORALLY AND IN WRITING, TO THE EXTENT POSSIBLE, THAT: 14

1. THE SURROGATE COMMITTEE HAS BEEN CONVENED 15
TO MAKE A TREATMENT DECISION FOR THE UNREPRESENTED PATIENT; AND 16

2. THE DECISION OF THE SURROGATE COMMITTEE MAY 17
INCLUDE THE PROVISION, WITHHOLDING, OR WITHDRAWING OF TREATMENT. 18

(III) THE WRITTEN NOTICE RE QUIRED UNDER SUBPARA GRAPH 19
(II) OF THIS PARAGRAPH SH ALL INCLUDE THE NAME S OF THE MEMBERS OF THE 20
SURROGATE COMMITTEE. 21

(5) (I) THE SURROGATE COMMITT EE SHALL PROVIDE A W RITTEN 22
EXPLANATION OF, AND THE BASIS FOR, ITS DECISION. 23

(II) THE ATTENDING PHYSICIAN SHALL INCLUDE THE WRITTEN 24
EXPLANATION REQUIRED UNDER SUBPARAGRAPH (I) OF THIS PARAGRAPH IN THE 25
UNREPRESENTED PATIENT’S MEDICAL RECORD. 26

(d) (1) A surrogate may not authorize: 27

[(1)] (I) Sterilization; or 28

[(2)] (II) Treatment for a mental disorder. 29

(2) (I) 1. A SURROGATE COMMITTEE MAY NOT AUTHORIZE THE 30
DISCHARGE OF AN UNREPRESENTED PATIENT. 31
10 HOUSE BILL 1323

2. FOR THE PURPOSE OF SUBSUBPARAGRAPH 1 OF THIS 1
SUBPARAGRAPH, A REQUEST BY A HOSPI TAL TO MOVE THE UNRE PRESENTED 2
PATIENT TO A HIGHER LEVEL OF CARE AT ANO THER FACILITY MAY NOT BE 3
CONSIDERED A DISCHARGE. 4

(II) A SURROGATE COMMITTEE ’S DECISION–MAKING 5
AUTHORITY SHALL BE LIMITED TO THE TIME DURING WHICH THE UNREPRESENTED 6
PATIENT IS IN THE HOSPITAL. 7

5–606. 8

(a) (1) Prior to providing, withholding, or withdrawing treatment for which 9
authorization has been obtained or will be sought under this sub title, the attending 10
physician and a second physician or a nurse practitioner, one of whom shall have examined 11
the patient within 2 hours before making the certification, shall certify in writing that the 12
patient is incapable of making an informed decision regarding the treatment. The 13
certification shall be based on a personal examination of the patient. 14

(2) If a patient is unconscious, or unable to communicate by any means, the 15
certification of a second physician or a nurse practitioner is not required under paragraph 16
(1) of this subsection. 17

(3) When authorization is sought for treatment of a mental illness, the 18
second physician or the nurse practitioner may not be otherwise currently involved in the 19
treatment of the person assessed. 20

(4) The cost of an assessment to certify incapacity under this subsection 21
shall be considered for all purposes a cost of the patient’s treatment. 22

(b) A health care provider may not withhold or withdraw life –sustaining 23
procedures on the basis of an advance directive w here no agent has been appointed or on 24
the basis of the authorization of a surrogate, unless: 25

(1) The patient’s attending physician and a second physician or a nurse 26
practitioner have certified that the patient is in a terminal condition or has an end –stage 27
condition; or 28

(2) Two physicians, one of whom is a neurologist, neurosurgeon, or other 29
physician who has special expertise in the evaluation of cognitive functioning, certify that 30
the patient is in a persistent vegetative state. 31

SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 32
October 1, 2026. 33